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EX-EBIS BOSS DIVORCES WIFE WITHOUT HER KNOWLEDGE

11/12/2022 07:45:00 Welcome Dlamini

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MBABANE – Bombshell!

Two days after former Eswatini Broadcasting and Information Services (EBIS) Director Martin Dlamini passed away, his estranged wife discovered that he had divorced her without her knowledge. All along, Lungile Magdalene Ndlovu knew that the matter was still in court as she was opposing an application filed by Dlamini seeking to have their marriage declared invalid.

However, on November 10, 2022, High Court Judge Mzwandile Fakudze issued an order, without Ndlovu’s knowledge or presence, directing that the marriage was invalid. Dlamini, who is scheduled to be buried today, died on November 30, 2022 after collapsing at his home and at the time of his death he was under secretary in the Ministry of Housing and Urban Development. Ndlovu currently resides at Springs, in Johannesburg, South Africa and says she is married to Dlamini in community of property.

Divorced

According to Ndlovu, she got to know that she was divorced from Dlamini after seeing his death certificate, which was sent to their son, whom she lives with in SA, for purposes of obtaining a travel document. She has now filed an urgent court application seeking to set aside the order issued by High Court Judge Mzwandile Fakudze directing that the marriage between her and Dlamini was invalid.

On Friday, Judge Khontaphi Manzini issued an interim order staying execution of the judgment by Judge Fakudze pending determination of Ndlovu’s application. Judge Manzini has referred the matter back to the Registrar of the High Court for Judge Fakudze to determine the application for rescission of his November 10, 2022 judgment.

Anomalies

Ndlovu has listed a number of alleged anomalies regarding the order issued by Judge Fakudze, among which is that recordings of the court proceedings of matters heard by the judge on the days the matter was supposedly heard were not made. She also alleged that the order was not granted in open court but in chambers.

Ndlovu further alleged that whereas the Registrar of Births, Deaths and Marriages was cited and served with the court order, there was no order directing the registrar to do anything, meaning no order was sought and granted for the registrar of marriages to deregister the marriage and/or to expunge it from the marriage registry; they were only cited and served.

“I was also not served with the order issued on November 10, 2022 and was not aware that there was such an order against me until December 2, when my attorneys did a search in the court file only to find the order stamped and filed in the court filed without being served,” she alleged.Ndlovu narrates in her application that on or about August 15, 2022, Dlamini instituted court proceedings in which he sought an order directing that the marriage between them be considered invalid.

She said the application was served upon her attorneys on August 15, 2022 and they in turn filed a notice to oppose Dlamini’s application; this notice was served and filed on August 18, 2022. Hearing of the matter was reportedly scheduled for September 9, 2022.

Application

“I am advised by my attorneys that this application did not proceed on September 9, 2022 as indicated in the Notice of Application but was set down in court on September 16, 2022. On this say my attorneys were present in court before Justice Langwenya,” Ndlovu alleged. She said at that time she had not filed her answering affidavit and Dlamini’s lawyers were requested by her attorneys for an indulgence to file the affidavit as soon as she had signed same.

“I state that I reside in the Republic of South Africa and was unable to sign the affidavit at the time. However, the proceedings were contested and have always remained so, this is evidenced by the counter-claim which I filed in the main action,” she averred.Ndlovu said she had been advised by her attorneys that on September 16, 2022, Dlamini, through his attorneys, made an application to the court that they should be granted the order directing that the marriage between her and him was invalid for reasons that she had not filed an answering affidavit to their application.

She said her attorneys informed the court that there was a divorce action that was instituted by Dlamini and which action was not finalised and remained pending in the courts at the time. “The court was informed, further, by my attorneys that I was vehemently resisting the divorce and I had filed a counter-claim and that the divorce action was at discovery stage,” Ndlovu averred.

She said advice from her attorneys was that they also submitted to the court that they had filed a notice to compel discovery and that Dlamini had not filed the discovery affidavit. She alleged that Judge Langwenya then rejected Dlamini’s application for an order that the marriage was invalid.

Compel

“Instead, Justice Langwenya ordered the 1st respondent (Dlamini) as compelled by my attorneys in the notice to compel discovery, to file their discovery affidavit by close of business on September 16, 2022. The matter was then removed from the Roll to take its normal course. All this happened in Court on September 16, 2022,” she alleged.
Ndlovu further alleged that Dlamini did not file his discovery affidavit by close of business on September 16, 2022 as directed by the court and only served her attorneys with same on October 7, 2022.

She alleged that this discovery affidavit, which was served upon her attorneys on October 7, 2022, had the Registrar of the High Court’s stamp of September 16, 2022. On November 12, 2022, Ndlovu’s attorneys reportedly filed a notice of withdrawal as her attorneys of record; the matter then went quiet until she re-engaged her attorneys to be on record because she wanted to have the divorce action finalised.

“My attorneys duly filed a notice of appointment as my attorneys on November 11, 2022. My attorneys advise me that when they attended at the High Court to file the notice of appointment, the court file could not be located. Consequently, the notice of appointment was left at the civil registry at the High Court, for the clerks to locate the file and file it therein,” Ndlovu alleged. She then moved to November 30, 2022, when Ndlovu’s firstborn son with Dlamini, Gcinezizweni, received the news about his father’s death.

Arrangements

Gcinezizweni’s uncle was the one who reportedly called with the news and further requested that he should travel to Eswatini for funeral arrangements. The son’s aunt is said to be the one who sent a copy of the death certificate on December 2, 2022, to facilitate the issuance of the travel document. “First respondent’s death certificate sent to my son reflected that 1st respondent is divorced. To say I was shocked is an understatement. This is because as far as I was aware, the divorce action between myself and the 1st respondent was still pending at the High Court, it was neither dismissed nor withdrawn,” she said.

Ndlovu further stated: “Traumatised by how I could be divorced without my knowledge in a matter which I was contesting as evidenced by the counter-claim herein (annexure ‘L3) and also the notice of intention to oppose the 1st respondent’s application for an order directing that the marriage between him and myself is invalid which is annexure ‘L2’ herein; I contacted my attorneys on the 2nd December 2022 to investigate this matter.”

Investigate

Ndlovu said she was advised by her attorneys that they attended at the High Court to investigate the issue of the divorce from the court file and they found it on December 2, 2022, even though precisely the file could not be located when they sought to file the notice of appointment. She said further advice from her attorneys was that what they found from the court file was an endorsement in the judge’s file which reflected that Prayer 1 of the notice of motion dated August 15, 2022 had been granted on November 10, 2022.

She alleged that Dlamini’s attorneys issued a court order on November 18, 2022, which reflects that it was granted by Judge Fakudze on November 10, 2022. “The said application was, however, not served to me nor was I made aware of it at any point by any of the respondents. This is notwithstanding that I had filed a counter-claim and notice to oppose the divorce proceedings. The divorce action has always been contested,” Ndlovu further alleged.

She submitted to the court that the order by Judge Fakudze was granted in error because she was not made aware that such a serious matter against her, which she was contesting, would be heard as she was neither served with the notice of set down nor with the court order thereafter. Another error she submitted was that the divorce proceedings filed by Dlamini to which she filed a counter-claim were pending and had not been withdrawn to date.

Invalid

Ndlovu also submitted that another error was having the matter proceed in chambers in her absence on a day (November 10) when it was not on the roll. She averred that she had a good defence to the relief sought by Dlamini in that the marriage between her and him was not invalid. “There was a valid marriage concluded which the 1st respondent, when instating the divorce proceedings, sought to have dissolved. I have also filed a counter-claim,” she said.

Ndlovu said she has been advised and verily believes that in terms of Rule 42 of the Rules of Court, if the court commits an error in the record in the sense of a misstate which if it had been aware of would have induced it not to grant judgment, then the court in that instance would be entitled to rescind the judgment in question. She said the matter was urgent because Dlamini had already taken the order to the marriage registrar, which order was granted in error and the order was misleading and was being paraded as a divorce decree when no such order was issued by the court.

“The order is being used to exclude me in the joint estate matters to which I am entitled to by virtue of the marriage in community or property whose dissolution of remains pending. I state therefore that I cannot be adequately redressed at a hearing in future course in the circumstance,” she submitted. Ndlovu said she was seeking the relief urgently because there would be an estate to be reported and such estate could be distributed on the strength of an invalid curt order without the proprietary consequences of the divorce action herein being determined and her right to the joint estate being determined.

“I aver that it is in the interest of justice that I be granted a stay of execution pending determination of the rescission application therein,” she submitted. She argued that if she was to move an application other than by urgency, it would push the hearing of the matter to the beginning of June 2023 at the earliest.

Determination

She further submitted that if the court were to permit execution of Judge Fakudze’s order, the determination of her application would become academic and she would lose her right to the joint estate before she had to exercise her right to be heard. “I submit that I have made out a clear case for the relief on all the remedies in terms of which a judgment of this honourable court may be rescinded,” Ndlovu added.

Judge Manzini indeed granted her the interim order staying execution of Judge Fakudze’s order pending determination of Ndlovu’s application to rescind the order. Other respondents in the matter are Mbali Patience Thusi who is purported to be Dlamini’s wife; the Public Service Pension Fund; the Registrar of Births, Marriages and Deaths; and the Attorney General. Ndlovu is represented by Setsabile Matsebula from SST Matsebula Attorneys.