Thandazile Jubane (nee Khumalo) v Khumbulani Jubane

The applicant and respondent were married on 13 July 2001 under the Marriage Act and had three children together, including Donna Jubane (born 28 September 2011). The family relocated to the United Kingdom in 2001 and acquired British citizenship; Donna was born in the UK and is a British citizen by birth. In 2013, the marriage encountered difficulties and the parties commenced living apart. The respondent returned to Zimbabwe with a Jamaican woman, leaving the applicant in the UK with the children. The parties had a shared custody arrangement for Donna, with the respondent regularly bringing her to Zimbabwe. In October 2014, while the applicant was in the UK, the respondent issued divorce summons in Zimbabwe (HC 2187/14), fraudulently stating the applicant's address as the parties' Zimbabwean home despite knowing she was in the UK. After failed service attempts, the respondent obtained an order for substituted service by publication. Without the applicant's knowledge, a divorce decree was granted on 16 July 2015, awarding the respondent custody of Donna. In August 2016, the applicant allowed Donna to visit Zimbabwe with the respondent for two months, but he refused to return her. The applicant only learned of the divorce order upon arriving in Zimbabwe to reclaim her daughter.

• Whether the matter was urgent and properly before the court
• Whether the divorce order obtained through fraud should be suspended pending rescission
• Whether interim custody should be granted to the applicant pending final determination
• Whether the applicant was entitled to sole custody under section 5(1) of the Guardianship of Minors Act
• Whether the court should order the return of the child to the United Kingdom
• The proper jurisdiction for determining permanent custody

The court granted a provisional order with the following interim relief: (1) The order of 16 July 2015 in HC 2187/14 was suspended to the extent it awarded custody to the respondent; (2) The minor child was to be returned to the United Kingdom by 9 April 2017; (3) While in the UK, the parties were to approach UK courts to determine permanent custody; (4) Either party could approach the Zimbabwean court if unable to do so; (5) Pending determination of permanent custody, the child was to be given to the applicant.

A judgment or order obtained through fraud may be suspended pending rescission proceedings where the applicant demonstrates merit in the rescission application. Under section 5(1) of the Guardianship of Minors Act, when parents commence to live apart, the mother has sole custody of a minor child until an order regulating custody is made by the court. A party who has obtained a court order through fraudulent misrepresentation and false evidence should not be permitted to benefit from such ill-gotten order. The decision to treat a matter as urgent involves the exercise of judicial discretion, and urgency is not negated merely because the applicant took time to gather resources to approach the court, particularly when based in another country. A witness who gives false evidence and lies to the court is unreliable and such evidence has no evidentiary value.

Mathonsi J observed that there has been a disturbing increase in cases of fraud in divorce proceedings, particularly involving Zimbabweans in the diaspora who abuse the procedure for substituted service by claiming lack of knowledge of their spouse's whereabouts to obtain quick uncontested divorces. The court noted this is a 'despicable' and 'obnoxious practice which threatens to erode confidence in our judicial system in unopposed divorce matters.' The court emphasized that while seeking opportunities abroad is commendable, litigants must appreciate that courts should not be subjected to abuse by the unscrupulous who no longer know how to act honourably, and it is usually the dishonourable who associate with 'bush lawyers.' The court also commented that the issue of self-created urgency has been either misunderstood or blown out of proportion, noting that litigants do not 'eat, move and have their being' in filing court process and have other issues to attend to.

This case is significant in South African and Zimbabwean family law for addressing the abuse of substituted service procedures by litigants in the diaspora to obtain fraudulent divorce orders. It reinforces that judgments obtained through fraud may be suspended pending rescission, and emphasizes the statutory protection afforded to mothers under section 5(1) of the Guardianship of Minors Act when parents commence living apart. The case highlights the court's duty to scrutinize applications for substituted service and demonstrates judicial intolerance for dishonest conduct designed to circumvent proper service of process. It also addresses jurisdictional issues in international custody disputes involving children with dual citizenship and habitual residence abroad.