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. Herald
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