Julius Tawona Makoni v Pauline Mutsa Makoni

The applicant and respondent were married in Zimbabwe in 1983 under the Marriages Act. They acquired properties in both Zimbabwe and England. The applicant, a banker, went into self-exile in England in 2006. In 2010, the respondent petitioned for divorce in England. The English court granted a decree of divorce and divided the matrimonial assets, awarding the respondent the London and Harare (Chisipite) matrimonial homes and a vacant stand, while the applicant received extensive assets including Omega Cottages, substantial shareholdings in National Merchant Bank of Zimbabwe, several other properties, and significant offshore funds. The English court expressed displeasure at the applicant's lack of candor regarding the parties' assets. The applicant did not challenge the interim order or comply with conditions for leave to appeal. He subsequently instituted proceedings in the High Court seeking a declaratory order that the English judgment was unenforceable in Zimbabwe as contrary to public policy. The High Court ruled in his favor, finding the English court lacked jurisdiction and the award violated public policy. The Supreme Court reversed this decision on appeal, finding the High Court had misdirected itself. The applicant then approached the Constitutional Court seeking direct access, alleging violations of his rights to equal protection (s 56(1)), fair hearing (s 69(2)), and right to a home (s 74).

• Whether direct access to the Constitutional Court should be granted where the court a quo did not determine a constitutional matter
• Whether the Supreme Court violated the applicant's right to a fair hearing under s 69(2) of the Constitution by delaying provision of reasons for judgment
• Whether the Supreme Court violated the applicant's right to equal protection of the law under s 56(1) by denying him the opportunity to challenge the jurisdiction of the English court
• Whether the English court had jurisdiction to determine the divorce matter and divide matrimonial property situated in Zimbabwe
• Whether the applicant was domiciled in Zimbabwe or England at the time divorce proceedings were instituted
• Whether the English court's order violated Zimbabwean public policy
• Whether the division of matrimonial assets violated the applicant's right to a home under s 74 of the Constitution

The application for direct access is dismissed. There is no order as to costs.

1. A delay in providing reasons for judgment does not violate the right to a fair hearing under s 69(2) of the Constitution where the applicant suffers no actual prejudice and ultimately receives comprehensive reasons enabling further pursuit of remedies. 2. Under s 3(4) of the Immigration Act, a person loses Zimbabwean domicile where they: (a) voluntarily depart Zimbabwe and reside abroad with intention to make their home elsewhere; (b) are absent from Zimbabwe for a continuous period exceeding five years without ministerial authorization; (c) take up residence abroad (constituting prima facie evidence of intention to make home elsewhere, with the onus on the person to prove otherwise); or (d) make statements or conduct themselves in a manner suggesting they no longer regard themselves as resident in Zimbabwe. 3. A foreign court has jurisdiction to determine divorce proceedings and divide matrimonial property where the applicant was domiciled in that foreign jurisdiction at the time proceedings were instituted. 4. The right to equal protection under s 56(1) requires proof of differential treatment compared to others in similar circumstances; jurisdiction is a question of law that can be raised at any time but a litigant may be held to have submitted to jurisdiction. 5. Section 74 of the Constitution does not prevent lawful division of matrimonial property in divorce proceedings where the court properly exercises its wide discretion under s 7 of the Matrimonial Causes Act after considering all relevant circumstances. 6. Direct access to the Constitutional Court requires demonstration of prospects of success and that the interests of justice favor the grant of leave.

The Court observed that the right to a fair hearing 'affirms [and] lies at the heart of the rule of law' and is 'fundamental to a just and credible legal order.' The Court noted that while jurisdiction can be raised at any stage of proceedings, it is ordinarily convenient and apposite for the issue to be taken as a preliminary point at the commencement of proceedings to avoid wasting time and money. The Court commented that courts determining applications for registration of foreign judgments must satisfy themselves mero motu that the foreign court had jurisdiction and that the criteria for recognizing foreign judgments are met. The Court remarked that it 'seems almost risible to suggest that the divorce order rendered the applicant destitute let alone homeless' given the substantial assets he was awarded. While the respondent's counsel argued the applicant was engaging in attritional proceedings, the Court declined to depart from the norm of not awarding costs in constitutional matters despite the applicant's seemingly vexatious conduct.

This case establishes important principles regarding: (1) the requirements for granting direct access to the Constitutional Court, particularly the need to demonstrate actual prejudice and prospects of success; (2) the interpretation of s 3(4) of the Immigration Act regarding loss of domicile, clarifying that prolonged absence beyond five years, establishment of life abroad, and failure to discharge the statutory onus results in loss of Zimbabwean domicile; (3) the recognition and enforcement of foreign divorce judgments, confirming that foreign courts have jurisdiction where the party is domiciled in that jurisdiction; (4) the limited scope of s 74 constitutional protection, which does not prevent lawful property division in divorce proceedings; (5) that delay in providing judgment reasons does not violate fair hearing rights absent actual prejudice; and (6) the wide discretion of courts in dividing matrimonial property under the Matrimonial Causes Act. The judgment reinforces principles of private international law regarding recognition of foreign judgments and clarifies the application of immigration law provisions on domicile to matrimonial proceedings.