UK-Based Zim Man Tries to Cancel Divorce After Wife Dies in Australia to Claim Estate – High Court Says No
Bid to inherit everything as surviving spouse flops
By Fanuel Viriri
A Zimbabwean man based in the United Kingdom whose wife died in Australia during divorce proceedings approached the High Court seeking cancellation of the divorce decree so he could inherit “everything” as surviving spouse.
The High Court has dismissed his bid with costs, holding that the application was incompetent and had been overtaken by events.
Nicodemus Khafula, formerly known as Nichodemus Kavara, filed application HCHF 968/26 for rescission of a default judgment in terms of Rule 29 of the High Court Rules 2021. He sought to set aside a divorce decree granted under case number HCH 5834/22 on 16 February 2023 which dissolved his marriage to the late Christine Khafula.
Khafula (Nicodemus) told the court that he and his late wife had agreed to divorce amicably in 2022 on an uncontested basis.
The first consent paper they signed was queried by the court. He said he instructed his legal practitioner, Emmanuel Tafadzwa Nhachi, who is cited as second respondent, to wait for further instructions because his wife was critically ill and on life support in Australia. He said he never got the chance to revert with instructions because his wife died on 25 February 2023, just nine days after the decree was granted.
His case is that without his knowledge, consent or authority, Nhachi filed a forged amended consent paper purportedly executed by him and his wife on 19 December 2022 in Harare and appeared before the court purporting to act on his behalf.
He argued that both he and his wife were abroad at that time, he in the United Kingdom and his wife in Australia, making the claim that they signed in Harare a misrepresentation with fraudulent connotations. He produced his passport and a report from the Chief Immigration Officer to show he was not in Harare and argued that any document signed in England would have needed notarisation by a Notary Public.
Relying on that decree, Pelagia Makonese N.O, cited as first respondent in her capacity as Executrix of the Estate of the Late Christine Khafula under DR 2287/24, was appointed to administer the estate. Khafula argued the decree was erroneously granted in his absence and was affecting his proprietary rights.
The first and second respondents opposed the application and raised preliminary points. The first was that Khafula raised new material facts about his wife’s illness in his answering affidavit that were not in his founding affidavit, contrary to the principle in Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (S). Justice Phillipa Phillips dismissed that point, finding the additional dates merely amplified facts already pleaded and did not introduce a new cause of action.
The second preliminary point was that Khafula cited the wrong rule. Rule 29(1)(a) provides for rescission where an order was erroneously sought or erroneously granted in the absence of a party affected. The respondents argued Khafula was not absent as his lawyer of record was present before Justice Wamambo and the order itself records that the plaintiff was represented. The third point was mootness, that the application has been overtaken by events because the ex-wife is deceased, her estate has been registered, and rescinding the divorce would have no practical effect as the marriage would have ended by death in any event.
In his judgment, Justice Phillipa Phillips explained that Rule 29 is an exception to the general principle that a final order cannot be altered, and allows a court to revisit a decision in restricted circumstances as set out in Grantually (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S). Citing Munyimi v Tauro SC41/13, she said an applicant must show the judgment was erroneously sought or granted, it was granted in his absence, and his rights are affected.
She found the order was not erroneously granted and the applicant was not absent as the second respondent was representing him. She said although Khafula alleged he told the second respondent he would revert with further instructions, there was no proof of that and on a balance of probabilities it was more likely the second respondent was able to proceed with instructions to obtain the decree.
On mootness, she relied on Ndewere v President of Zimbabwe NO & Ors SC 57/22, Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19 and MDC & Ors v Mashavira & Ors SC 56/20, where it was held that a court may decline jurisdiction where the dispute becomes academic by reason of changed circumstances. She agreed the matter is now moot, asking who the applicant would be married to should the divorce be rescinded and why he waited until after his wife’s death to seek rescission. She said the death of the ex-wife and registration of her estate ended the controversy.
Accordingly, the court upheld the second and third preliminary points and dismissed the application with costs, with the effect that Pelagia Makonese remains as Executrix and will continue to wind up the estate in terms of the will or the law of succession, with Khafula excluded as surviving spouse.