Two sisters from the Zimbabwean diaspora are embroiled in a nasty legal battle over fees paid by their older brother to their younger sister’s son, in a case with legal and ethical complications.
The boy disappeared from his older sister’s house in Canada shortly after graduating and secretly joined his mother, leaving his benefactor who has not made her disappointment a secret since, hence the legal battle.
Pearly Nkwazi (72) and Grace Mutasa – who share the same mother, but different fathers – are now bitter enemies over $120,000 in fees and maintenance Nkwazi paid to Mutasa’s son, Tawanda, while he was studying in Canada.
Tawanda, who now works as an engineer, has since joined his mother (Mutasa) and moved to Australia where they are “living comfortably” while Nkwazi claims she is living in poverty and failing to service the loans she took from banks for Tawanda’s education. .
Nkwazi says she feels deeply betrayed.
After graduating from the University of Saskatchewan, Canada, in 2011, Tawanda disappeared, only to resurface years later in Australia, where he now works as an advanced process engineer and lives with his mother.
The dispute is now in the courts, with Nkwazi, now retired, claiming she failed to repay her loans, the interest of which has swelled over the years to $65,000 Canadian dollars.
At one point, Nkwazi successfully sued Mutasa in the High Court in Harare, but lost on appeal to the High Court. She then changed her mind and filed a lawsuit against Tawanda in the High Court.
When the case came before Judge Never Katyo last week, Tawanda filed a special plea, which the judge upheld.
The dispute started after Tawanda completed his secondary education in Zimbabwe. He applied to study at a university in Canada where his aunt resides.
Mutasa asked her sister Nkwazi for help, who agreed, albeit without written consent.
Not only did Nkwazi pay the required application fee, he appointed Tawanda 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.
I stopped funding his education.
This was after she discovered that Mrs Mutasa and her other son, Tawanda’s brother, were sending money to Tawanda without her knowledge.
She filed a case in the High Court in 2012 against Mutasa, but lost the case because she did not join Tawanda in her suit.
“Despite repeated demands from the plaintiff (Nkwazi) to the defendant (Tawanda) and his mother for repayment of the money paid by the plaintiff for his education, the defendant steadfastly ignored the demands and did not repay the plaintiff a single cent of the amounts in question.
“The money provided by the plaintiff for the defendant’s university education as stated was obtained by the plaintiff from her bank with huge interest, which the plaintiff has to repay loans and interest from her meager pension since she retired from work in 2017 due to her advanced age.
“Accumulated interest on the loans under issuance now exceeds C$650,000,” she said.
She said Nkwazi’s claim against Tawanda was based on a fraudulent misrepresentation to her by Tawanda and his mother that the money in question would be repaid once her nephew got a job.
Through his lawyer, Ms Baida Mavura of Muza and Nyabadi, Tawanda filed a special petition, arguing that the matter had already been decided by the High Court.
“The matter is adjudicated (already decided) as it has already been heard and decided by a competent court under Case No. SC163/19,” Ms Mavura said.
“The parties are bound by the ruling in that the defendant was privy to the oral agreement between the plaintiff and his mother, which is the same cause of action. Therefore, the prior suit was between the plaintiff and the defendant’s mother.”
The Supreme Court ruling declared the oral agreement void and not legally binding because there was no hostility against it (intent to be bound by contractual, treaty or other legal obligations).
Ms. Mavura further asserted that the court had no jurisdiction to hear the matter on the basis that Tawanda and Nkwazi were not residents of Zimbabwe.
They both reside in foreign countries.
Ms Nkwazi also failed to pay security for costs as required under the rules of court.
“Furthermore, the plaintiff has not disclosed ownership of the property within Zimbabwe which could be linked to dispensing with the need for cost security as requested.”
Both parties provided the court with their foreign addresses.
The case has legal and moral lessons for relatives who may find themselves in the same situation. Announce
