Supreme Court dismisses woman's property, custody appeal

The Supreme Court has dismissed Memory Kanyekanye's attempt to overturn a High Court ruling that denied her a share of a Borrowdale property, awarded custody of her minor child to her former husband, Celestino Kanyekanye, and ordered her to share maintenance responsibilities.

Justice George Chiweshe, ruling in chambers, found no merit in Memory's application for condonation and extension of time to appeal, criticising her for inordinate delays, implausible explanations, and weak prospects of success.

"This application is a clear example of unnecessary delays in the administration of justice. It has no merit," Justice Chiweshe said.

The dispute arose from the couple's divorce after nearly two decades of marriage, centring on the Borrowdale double-storey property, custody of their minor child, and financial support for their children, including one studying in Poland.

The High Court had ruled in Celestino's favour, granting him sole ownership of the Borrowdale property after establishing that Memory had not contributed to purchasing the stand or constructing the house. Instead, she had independently acquired another property, 23 Kimmich Heights, which was awarded to her.

Justice Chiweshe upheld the lower court's findings: "The court a quo exercised its discretion fairly and judicially after a thorough interrogation of the facts. An appeal court will not lightly interfere with such discretion."

Memory had argued that her contributions to household support and income supplementation through selling suits were overlooked, and that she was coerced into signing a post-nuptial agreement without full awareness. The court, however, found the agreement valid and binding, rejecting her claims.

She further raised constitutional arguments about spousal equality for the first time on appeal, but Justice Chiweshe dismissed this as improper: "The purpose of an appeal is to test the correctness of the judgment of the court a quo. The court a quo did not and could not determine an issue not put before it."

On custody, the High Court had awarded the minor child to Celestino, noting that Memory's work in Shamva kept her away from Harare during the week, leaving the child under a maid's care, which was linked to a decline in academic performance. The Supreme Court found no reason to interfere with this decision.

Her challenge to the maintenance order also failed, as the issue had been resolved during a pretrial conference and was uncontested at the High Court.

Justice Chiweshe also rejected her explanation for the late filing of the appeal, in which she accused her former lawyer of misconduct without providing supporting evidence. The court noted that Memory had already taken steps to enforce parts of the High Court judgment, showing acquiescence.

"The respondent has since moved on with his life. There is no reason why he should be endlessly engaged in legal suits over a matter that all along he had been made to believe had been finalised," Justice Chiweshe ruled.

The Supreme Court dismissed the application with costs, bringing finality to the protracted legal battle. Celestino retains ownership of the Borrowdale property and custody of the minor child, while Memory keeps the Kimmich Heights property. Both will continue sharing maintenance responsibilities.