Mwandisa Jonas Musara v Winnet Paidamoyo Motsi

The Plaintiff instituted summons on 13 October 2023 seeking a decree of divorce and ancillary relief against the Defendant. The Defendant is domiciled in Canada and has been there for a significant period. The Defendant filed both a substantive plea and a special plea arguing that the court has no jurisdiction and that the matter is lis alibi pendens (another action pending elsewhere). Prior to the Zimbabwean proceedings, the Defendant had filed divorce proceedings in Canada which were still pending. The Plaintiff complained that he was being prejudiced as he was being denied access to minor children and argued that the court should exercise its inherent jurisdiction. The Plaintiff sought an order that the minor children be awarded to the Defendant.

• Whether the Zimbabwean High Court has jurisdiction to hear the divorce matter when the Defendant is domiciled in Canada and has not submitted to the jurisdiction of the court
• Whether the matter should be stayed on the basis of lis alibi pendens given that divorce proceedings were already pending in Canada
• Whether the court should exercise its inherent jurisdiction to protect the interests of minor children despite the jurisdictional challenges
• The application of the actor forum rei principle in determining jurisdiction in divorce matters

The special plea was upheld. The High Court of Zimbabwe withheld its jurisdiction in the matter.

A court must have both subject matter jurisdiction and personal jurisdiction over the parties to make an effective and binding decision. Under the actor forum rei principle, the court of the defendant's domicile has jurisdiction in divorce matters. A Zimbabwean court cannot assume jurisdiction simply because the plaintiff is domiciled or resident in Zimbabwe when the defendant is domiciled elsewhere and has not submitted to the court's jurisdiction. Where the same matter is pending before another court of competent jurisdiction (lis alibi pendens), the court should decline to hear the case to avoid duplication and conflicting judgments in accordance with principles of judicial comity and efficiency. The court will withhold its jurisdiction when proceedings were instituted in another jurisdiction prior to the domestic proceedings, involving the same parties and same issues.

The court observed that if the Plaintiff believes the Defendant is unnecessarily dragging the Canadian proceedings, there should be ways to have that matter dismissed by the Canadian court if the Defendant is not following the rules in that jurisdiction. Once that is done, the Plaintiff could then properly approach the Zimbabwean court, assuming the Defendant would submit to its jurisdiction. The court also noted that the issue of enforcement of an access order being defied is not for jurisdictional proceedings and that the Plaintiff should be advised on what steps to take to enforce rights granted by a court order. The court commented that the fact that the Plaintiff was seeking an order awarding the minor children to the Defendant (in Canada) made it more appropriate for the Canadian court to deal with the issue of maintenance of the minor children. The court acknowledged the principle from Mackintosh v Mackintosh that children's interests are always paramount and that courts must be guided by their own experiences and sense of fairness, though this principle could not override the jurisdictional defects in the present case.

This case demonstrates the Zimbabwean courts' application of traditional principles of jurisdiction in divorce matters involving international elements. It affirms the actor forum rei principle (action follows the defendant's domicile) and the doctrine of lis alibi pendens in preventing duplicate proceedings and conflicting judgments. The case illustrates the limits of the court's inherent jurisdiction and its upper guardianship role over children when jurisdictional prerequisites are not met. It reinforces the importance of judicial comity between courts of different jurisdictions and shows that even considerations of children's best interests cannot override fundamental jurisdictional requirements where the defendant has not submitted to the court's jurisdiction and proceedings are already pending in the court of the defendant's domicile.