Arguments over legal processes continue to dog efforts by Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi to proceed with divorce proceedings against his wife, Ms Florence Ziyambi nee Mhizha, with Mrs Ziyambi now disputing the validity of how the divorce summons was served.
She is asking the High Court to rescind an order granted to her husband to serve her with divorce summons through publication in local newspapers because he found it impossible to serve the summons on her physically.
Minister Ziyambi has instituted divorce proceedings against his wife at the High Court claiming that their marriage had irretrievably broken down, but the legal process requires that she is served with a formal summons for divorce.
He had successfully sought the court’s leave to serve her with divorce summons through publication in local newspapers after stating that the Sheriff’s office’s six attempts to serve the divorce summons to Ms Ziyambi at both her given residential address and workplace had failed.
Ms Ziyambi has now approached the court seeking a rescission of the order, arguing the court made an error in granting the order without considering her opposition in the record.
She wants the order to serve her with the summons through the media declared invalid and set aside.
In a letter to the registrar of the court, Justice Jacob Manzunzu wrote that he had become aware of Ms Ziyambi’s notice of opposition on November 3, the day after he received the chamber application to allow the service of summons through the media.
He had granted the draft order sought without regard to the notice of opposition because of the failure by the registrar of the High Court to place the opposing papers before him.
He then invited the parties to appear before him on November 16 through their legal counsel for the judge to deal with the matter in terms of the court’s rules, resulting the judge issuing a varied order.
Ms Ziyambi contends that her lawyers consented to the varied order without her consent, because it had been brought to their attention that the November 2 order had been complied with since the sheriff had already served the summons on a member of the police stationed at Ms Ziyambi’s residence.
“In matrimonial proceedings, summons and declaration must be served personally on the defendant because it is a matter affecting the status of the defendant,” she said.
“There must be strict compliance with this rule.”
In addition, Ms Ziyambi said the right to be heard in matter she had opposed was a constitutional right which must be protected.
“The hearing of the matter without regard to my opposition on November 2 2020 was, therefore, a violation of my constitutional right,” she said.
“The service of the summons in terms of a defective order which was granted in violation of my right to be heard by the court cannot be a bar to setting aside of the defective order. The setting aside of the order of November 2, 2020 must, therefore, be done as a matter of law and good procedure. It is an order granted unprocedurally.” The Herald.