Two Zimbabwean sisters in the Diaspora are embroiled in a nasty legal fight over US$120 000 , fees the elder sibling paid for the son of her younger sister, in a case that has legal and moral complications.
The boy disappeared from the elder sister’s home in Canada soon after graduation and secretly joined his mother, abandoning his benefactor who has since not made her disappointment a secret, hence the legal combat.
Berly Nkwazi (72) and Grace Mutasa — who share the same mother, but are from different fathers — are now sworn enemies over US$120 000 fees and upkeep paid by Nkwazi for Mutasa’s son Tawanda while studying in Canada.
Tawanda, who is now employed as an engineer, has since rejoined his mother (Mutasa) and moved to Australia where they “are living comfortably” while Nkwazi claims to be living in poverty and failing to service the loans she got from banks for Tawanda’s education.
Nkwazi says she strongly feels betrayed.
After graduating from Saskatchewan University in Canada, in 2011, Tawanda disappeared only to resurface years later in Australia where he is now working as an advanced processing engineer and staying with his mother.
The feud is now playing out in the courts, with Nkwazi who is now a pensioner claiming that she is failing to service her loans, whose interests have ballooned over the years to 65 000 Canadian dollars.
At one point Nkwazi succeeded in suing Mutasa at the High Court in Harare, but lost on appeal at the Supreme Court.
She then changed and sued Tawanda at the High Court.
When the matter was brought for hearing before Justice Never Katiyo last week, Tawanda raised a special plea, which the judge upheld.
The feud started after Tawanda completed his high school education in Zimbabwe. He applied to study at a university in Canada where his aunt resides.
Mutasa appealed for assistance from her sister, Nkwazi, who agreed, albeit without a written agreement.
Nkwazi not only paid for the required application fee, but took Tawanda in, and became responsible for his board, tuition and other incidental expenses for more than three years.
Four months before Tawanda completed his studies, Ms Nkwazi asked him to pack his bags and leave her house.
She stopped funding his education.
This was after she discovered that Ms Mutasa and her other son, Tawanda’s brother, were sending money to Tawanda without her knowledge.
She instituted a claim in the High Court in 2012 against Mutasa, but lost the case because she had not joined Tawanda in her claim.
“Despite repeated demands by plaintiff (Nkwazi) to the defendant (Tawanda) and his mother to repay the monies plaintiff advanced to for his education, defendant has steadfastly ignored the demands and not repaid plaintiff a single cent of the amounts involved.
“The monies plaintiff advanced for defendant’s university education as aforesaid were acquired by plaintiff from her bank at considerable interest, which loans and interest plaintiff is having to repay from her meagre pension since she retired from work in 2017 due to her advanced age.
“The accumulated interest over the loans in issue now exceeds the sum of CAD$65 0000,” she said.
Nkwazi’s claim against Tawanda, she argued was premised on fraudulent misrepresentation to her by Tawanda and his mother to the effect that the money in issue would be repaid once her nephew got employed.
Through his lawyer, Ms Paida Mavura of Muza and Nyapadi, Tawanda raised a special plea, arguing that the matter had already been decided by the Supreme Court.
“The matter is res judicata (already decided) in that it has already been heard and decided by a competent court under case Number SC163/19,” said Ms Mavura.
“Both parties are bound by the judgment in that the defendant was privy to the oral agreement between plaintiff and his mother, which is the same cause of action. Thus, the previous claim was between plaintiff and defendant’s mother.”
The Supreme Court ruling declared oral agreement to be void and not binding at law in that there was no animus contrahendi (an intention to be bound by contractual, treaty, or other legal obligations).
Ms Mavura further submitted that the court has no jurisdiction to hear the matter on the basis that both Tawanda and Nkwazi were not resident in Zimbabwe.
They are both residents in foreign countries.
Ms Nkwazi also failed to pay for security of costs as required in terms of the Rules of the Court.
“Further, the plaintiff has not disclosed ownership of property within Zimbabwe which is capable of being attached to dispense with the need for security of cost as requested.”
Both parties furnished the court with their foreign addresses.
The case has legal and moral lessons for relatives who may find themselves in the same situation.
