HARARE – The Constitutional Court has dismissed an application by banker-turned-cleric Julius Tawona Makoni seeking to overturn a Supreme Court ruling that allowed the enforcement in Zimbabwe of a divorce and property distribution order issued by a court in England.
In a unanimous judgement delivered by Justice Bharat Patel on Tuesday, with Justice Rita Makarau and Justice Anne-Marie Gowora concurring, the court found that Makoni had failed to establish any violation of his constitutional rights and had no prospects of success warranting direct access to the apex court.
The Anglican Church bishop had approached the Constitutional Court challenging a Supreme Court decision which set aside a High Court ruling that had declared unenforceable part of a 2013 English divorce order awarding his ex-wife, Pauline Mutsa Makoni, the Harare matrimonial home in Chisipite.
The parties were married in Zimbabwe in 1983 and later acquired substantial assets in both Zimbabwe and the United Kingdom. Makoni relocated to England in the mid-1980s and remained there for decades.
In 2010, Pauline Makoni instituted divorce proceedings in England, resulting in a decree that awarded her the London matrimonial home, the Harare house in Chisipite, a Shawasha Hills stand and household goods. Makoni retained extensive assets, including multiple properties, offshore bank accounts and significant shareholdings in National Merchant Bank of Zimbabwe.
The English court criticised Makoni for failing to fully disclose his assets and made the property distribution accordingly.
Instead of challenging the interim order in England, Makoni later sought a declaratory order in the High Court of Zimbabwe, arguing that the award of the Harare house was contrary to public policy and left him homeless.
The High Court ruled in his favour, finding that the English court lacked jurisdiction and that the property distribution offended Zimbabwean public policy.
However, the Supreme Court overturned that decision, holding that the High Court had misdirected itself and that the English judgement was valid, fair and enforceable.
Before the Constitutional Court, Makoni – who was represented by Professor Welshman Ncube and Professor Lovemore Madhuku – argued that the Supreme Court violated his rights to a fair hearing and equal protection of the law. He also claimed the ruling infringed his right to a home.
The court rejected all these arguments.
On the complaint that the Supreme Court delayed providing reasons for its decision, the court held that delay alone does not amount to a violation of the right to a fair hearing, particularly where no prejudice was shown.
“The applicant did not suffer any prejudice that would warrant the setting aside of the court a quo’s decision,” Justice Patel said, noting that reasons were eventually provided and enabled Makoni to approach the Constitutional Court.
On the question of equal protection of the law, the court found that Makoni had failed to show that he was treated differently from anyone in a similar position.
A key issue was whether the English court had jurisdiction to determine the divorce and property dispute.
The Constitutional Court held that Makoni had lost his Zimbabwean domicile long before the divorce proceedings were instituted, having lived and worked outside the country for decades.
Applying section 3(4) of the Immigration Act, the court found that Makoni’s prolonged absence from Zimbabwe, establishment of a life abroad and failure to rebut statutory presumptions meant he was domiciled in the United Kingdom at the relevant time.
“As a result, the court in England was vested with the requisite jurisdictional competence to decide the matrimonial proceedings,” the judgement said.
The court also dismissed Makoni’s claim that the divorce order violated his constitutional right to a home.
It held that section 74 of the constitution, which protects against eviction without a court order, was irrelevant to the case, as the property distribution followed a court process that considered all relevant circumstances.
The court noted that Makoni retained assets worth significantly more than those awarded to his former wife.
“It seems almost risible to suggest that the divorce order rendered the applicant destitute, let alone homeless,” Justice Patel said.
The court concluded that Makoni’s application for direct access was without merit and amounted to an attempt to relitigate issues already settled by the Supreme Court.
The application was dismissed, with no order as to costs, the court noting that although the proceedings appeared vexatious, constitutional matters ordinarily do not attract costs.
Advocate Thabani Mpofu appeared for Pauline Makoni. – ZimLive
