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.