Bongani Mhlanga v Busisiwe Mhlanga

The applicant and respondent were divorced by consent order in HC 1981/18 on 23 August 2018, which dealt with property distribution and custody of minor children. The consent order awarded custody of the minor children to the respondent with the applicant having reasonable access. The applicant later claimed he discovered that the respondent owned two undisclosed immovable properties: stand number 3858 Magwegwe Township and Lot 15 of Imbesu Park. He argued these were not disclosed during divorce proceedings and sought rescission of the property distribution portion of the divorce order on grounds of fraud. In November 2018, the applicant had already filed HC 3113/18 seeking partial rescission or variation of the ancillary relief, which was referred to trial and remained pending. In December 2020, the applicant unilaterally took custody of one minor child and enrolled him in school in South Africa, contrary to the custody order. The respondent filed a contempt of court application (HC 533/21) regarding this violation. The child remained in the applicant's custody for approximately 18 months at the time of this application.

• Whether the applicant approached the court with dirty hands by virtue of being in contempt of the custody order in HC 1981/18
• Whether the court should withhold jurisdiction where a litigant is in defiance of an extant court order
• Whether the doctrine of clean hands applies when seeking rescission of a composite order where the applicant has violated provisions of that same order
• Whether there were material disputes of fact that could not be resolved on the papers
• Whether the matter was res judicata or lis pendens given the pending HC 3113/18

The preliminary point regarding dirty hands was upheld. The application was struck off the roll with costs on a legal practitioner and client scale.

A court will withhold its jurisdiction and decline to hear an applicant who approaches it with dirty hands by being in contempt of an extant court order. Where a litigant is in open defiance of a court order, the court cannot come to his rescue as doing so would compromise the integrity of the court and condone defiance of the law. A party in contempt of a court order must first purge that contempt by complying with the order before seeking any relief from the court. Where an order is composite in nature (dealing with multiple issues such as custody and property), a party cannot violate provisions of that order relating to one issue while seeking the court's assistance in rescinding or varying provisions relating to another issue. The principle that citizens must obey the law and argue afterwards applies - a party who disagrees with a court order must comply with it while it remains extant and not stayed, and may only then pursue legal remedies to challenge or vary it. Drawing a distinction between different provisions of a composite order that one has violated does not cleanse dirty hands.

The court noted that it was unnecessary to consider the other preliminary objections raised by the respondent, including whether there were material disputes of fact or whether the matter was lis pendens given the pending case HC 3113/18 which was referred to trial. The court observed that even if one may not agree with a court order, as long as it is extant and execution has not been stayed, one is obliged to comply with it before seeking to pursue other legal remedies. The court emphasized that the applicant was not being permanently barred from approaching the court, but was required to submit himself to the law and approach the court with clean hands. The court's statement that it is the upper guardian of all minor children in the jurisdiction reinforces the principle that custody determinations are matters for the court, not for unilateral parental decision-making, even when a parent believes their decision serves the child's best interests.

This case is significant in Zimbabwean jurisprudence (which shares common law principles with South African law) as it reinforces the strict application of the clean hands doctrine in family law matters. It establishes that a litigant who is in contempt of a court order cannot seek relief from the same court, even if the relief sought relates to different provisions of the composite order being violated. The judgment emphasizes that courts will not assist litigants who demonstrate open defiance of court orders, as doing so would compromise judicial integrity and undermine the rule of law. The case also highlights that parties cannot unilaterally vary custody orders based on their own assessment of a child's best interests, even when the upper guardian principle is invoked - such variations must be sought through proper legal channels. The judgment demonstrates the court's willingness to use costs on an attorney and client scale as a punitive measure against conduct that shows disrespect for court orders.