6
HH 153 - 24
HCH 1952/22
DERECK TENDAYI KWARAMBA
versus
RUFARO RACHEL KWARAMBA (nee Musoni)
HIGH COURT OF ZIMBABWE
MUCHAWA J
HARARE, 7 February and 17 April 2024
Opposed Matter
C Muchichwa, for the applicant
Ms S Mushonga, for the respondent
MUCHAWA J: This is allegedly an application to set aside an order granted by consent. The draft order sought is in the following terms:
“IT IS HEREBY ORDERED THAT:
The judgment by consent granted under HC 4291/16 be and is hereby set aside.
The applicant be and is hereby granted leave to prosecute his claim.
No costs of suit if the matter is unopposed.”
BACKGROUND FACTS
The parties were married in terms of the then Marriages Act [Chapter 5:11] on 16 August 2002. Two children were born to their marriage being Tanatswa Debra Kwaramba (born on 8 March 1999) and Tatiana Daniella Kwaramba (born on 1 March 2009). They got divorced on 8 February 2018.
During the subsistence of the marriage, they acquired two immovable properties, that is, Stand No. 4641 Manyame Park, Chitungwiza and Stand No. 4 St James Close, Rushden, Northamptonshire, NN10 6DR, United Kingdom.
The divorce proceeded through the unopposed roll following an agreement reached at the pre-trial conference stage. The applicant herein was the plaintiff.
The terms of the divorce order were:
“A decree of divorce be and is hereby granted.
The defendant be and is hereby awarded all movable property which the plaintiff and defendant acquired during the subsistence of the marriage including but not limited to _ _ _ _
Stand No. 4641 Manyame Park, Chitungwiza be and is hereby awarded to the plaintiff and Stand No. 4 St James Close, Rushden, Northamptonshire, NN10 6DR, United Kingdom which is mortgaged to the Royal Bank of Scotland be and is hereby awarded to the defendant.
Custody of Tanatswa Debra Kwaramba and Tatiana Daniella Kwaramba be and is hereby awarded to the defendant.
The plaintiff be and is hereby allowed reasonable access to Tanatswa Debra Kwaramba and Tatiana Daniella Kwaramba as follows: -
Having access to the children two weekends of every month beginning on Friday evening at 6:00pm to Sunday evening at 6:00pm.
Having access to the children for one week during the August school holidays every year.
Having access to the children during festive seasons and public holidays provided the plaintiff and defendant alternate to have the children during these periods.
The plaintiff be and is hereby ordered to contribute towards maintenance of Tanatswa Debra Kwaramba and Tatiana Daniella Kwaramba until both children reach the age of 18 years or become self-supporting as follows:
USD 150 per month per child
USD 112 per child in July and December every year to cater for casual clothes and school uniforms.
Each party shall bear its own costs.”
POINTS IN LIMINE RAISED
At the hearing of this matter the applicant raised three points in limine which I dismissed. The first was that the notice of opposition had been filed out of time and respondent was therefore barred. This was because the application was served on the respondent on 18 August 2022 and she only filed her notice of opposition on 9 September 2022. I found that r 59 (6) provides that the time within which a respondent in a court application may be required to file a notice of opposition and opposing affidavit shall not be less than ten days, exclusive of the day of service, plus one day for every 200 kilometers or part thereof where the place where the application is served is more than 200km from the court where the application is to be heard. As the respondent was served in the United Kingdom which is more than twelve thousand kilometers away from Harare, the respondent was therefore not barred.
A second point raised was that the notice of opposition itself exceeds 5 pages but is not paginated, in contravention of r 58(2)(a). It was prayed that the notice of opposition be expunged from the record.
Another legal point raised is that the respondent acted contrary to the Rules in filing her heads of argument ahead of those of the applicant and that it is as if there are no heads of argument filed. It was prayed that the heads of argument be expunged from the record.
Indeed r 59(21) provides that the respondent’s heads of argument be filed not more than ten days after head of argument of the applicant. It is also true that r 58(2)(a) provides for pagination of a notice of opposition which comprises of more than five pages.
Mr Mushonga pleaded that since this is a divorce matter relating to change of status, the court should extend its indulgence and allow the parties to be heard on the merits. I elected to proceed in terms of r 7 and condoned the respondent’s departure from the rules as l noted that there was no prejudice suffered by the applicant in respondent expediating the matter and that it was in the interests of justice for me to determine the matter on merits.
THE APPLICANT’S SUBMISSIONS
Mr Muchichwa submitted that this is an application to set aside an order granted by consent under case no. HC 4291/16. It is averred that the applicant is relying on r 27, formerly r 56 of the High Court Rules, 1971. It is pointed out that though the order sought to be set aside appears like a default judgment, it was in fact an order granted by consent after the parties signed consent papers. The court was urged to have regard to its own records to establish this.
The rationale for the terms of the consent paper and the terms incorporated in the order is explained as that the applicant agreed to have the respondent enjoy usufructuary rights over the United Kingdom property as she would have custody of the children. It is explained that it was the aim of the parties that the children would inherit this property. The awarding of the house to the respondent is said to have been a means to safeguard the children.
There are two developments related to, which are said to justify this application. The first is that the Social Welfare Department in the United Kingdom has divested the respondent of custody of the minor child living with a disability. The second is that the other child has attained the age of majority and is no longer living at the United Kingdom property in issue. The result is that the respondent now has the full benefit of living in the property all alone contrary to the spirit and letter of the agreement between the parties.
The rule relied on by the applicant is said to provide as follows:
“A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit.”
This is said to be found in r 27, formerly r 56 of the High Court Rules 1971.
The case of Mahomed v Dudhia & Anor HH 140/18 is relied on to explain what good and sufficient cause means.
Further it is argued that the applicant agreed to settle the matter but now there is serious dissonance between what he thought he was agreeing to and what the respondent was envisaging so there is need to set aside the order. It is contended that the applicant was of the firm belief that executing the consent paper would assist the dissolution of the marriage, sharing of matrimonial property, inheritance and legacy issues but this has not turned out as planned. The applicant says he did not consent to a judgment whereby the respondent would benefit from the matrimonial home on her own. The court was referred to the case of First Class Enterprise Limited v Scanlink (Pvt) Ltd HH 187/2010.
The applicant avers that he has a good case in relation to the sharing of the matrimonial property as they had been married for more than 12 years and contributed jointly to the acquisition of the United Kingdom property.
Section 26 of the Constitution of Zimbabwe is pointed to as espousing the principle of equality of rights and obligations of spouses during marriage and at its dissolution. The court was urged to ensure there is no discrimination against the applicant as provided in Section 56 of the Constitution. On the international front, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Declaration of Human Rights and the Covenant on Civil and Political Rights are leaned on. On the regional level, the African Charter on Human Rights and its Protocol on the rights of women are pointed to. It is argued that all these instruments contain important provisions on men and women’s status within the family, in particular on dissolution of a marriage, which should guide the court.
Upon the setting aside of this order by consent, it is averred that the Matrimonial Causes Act [Chapter 5:13] would then apply and the court would be enjoined to consider the factors set out in S 7(4) thereof which include the income earning capacity of the spouses, financial needs, obligations and responsibilities, standard of living, age, physical and mental condition of each spouse, direct and indirect contributions, amongst others.
Case authorities such as Usayi v Usayi 2003 (1) ZLR 684 (5) and Mhora v Mhora SC 89/20 are cited to argue that the courts are embracing a transformative approach of different but equal in respect of the roles of spouses in marriage. Though he was married to the respondent for 12 years and gainfully employed as a medical doctor at all times and the respondent is alleged to have been a mere bystander financially, the applicant believes that the court revisiting the distribution of the matrimonial property, would most likely split the United Kingdom home on a 50/50 basis and also share the Manyame Park house.
It is prayed that the application succeeds in terms of the draft order.
THE RESPONDENT’S SUBMISSIONS
Mr Mushonga pointed to the order of 20 February 2018 and said that it was in fact an order granted to the applicant in default of the respondent. It was argued that it is therefore a misrepresentation to call it an order by consent. It is averred that it was in fact the applicant who sought that order in his favour who has now turned around and wants the same order he got in default to be set aside.
Rule 27 relied on by the applicant, it is contended, refers to the setting aside of a judgment granted in default within one month of its granting.
It is argued that there is no rule which supports the process the applicant has embarked on as he was not the one in default on 20 February 2018. The application is alleged to be fatal and defective therefore.
Mr Mushonga contended that there should be a time limit within which a divorced spouse can institute proceedings for division of matrimonial property and that such a claim must be brought within a reasonable time otherwise the Prescription Act [Chapter 8:11] would kick in.
In case the matter is alleged to be prescribed as the order sought to be set aside is of 8 February 2018 which is now more than 5 years ago. Section 7(1) of the Matrimonial Causes Act which authorizes a court to order division of matrimonial property at any time after divorce was said to be inapplicable therefore.
Another argument advanced is that this court is now functus officio as it already pronounced itself on the issues and rendered a final judgment. It was stated that the court cannot revisit its final order to correct, alter or supplement it on the authority of cases such as Firestone SA (Private) Limited v Genticuro AG 1997 (4) SA 298 (A).
The need for relative certainty and finality to litigation was raised and supported by the case of Grantully (Pvt) Ltd & Anor v UDC Limited 2000 (1) ZLR 361 (5).
On another note it was averred that the applicant is approaching the court with dirty hands. Though in the papers it had been alleged that the applicant is not paying maintenance for the two children since the court order, this was not persisted with in oral submissions. I believe it is because the applicant provided proof of payment of maintenance. The argument of dirty hands was advanced on the ground that the applicant took custody of the minor child without a court order. It is averred that the court cannot condone the applicant’s open defiance of its own order.
The elder child, though above 18 years of age, is said to be in college and not yet self-supporting.
This matter is also said to be res judicata as the intended process would be between the same parties, concerned with the same subject matter and based on the same cause of action. This, it was argued, is improper at law.
It is averred that since since the court order of 2018, the respondent has been burdened by payments of the mortgage bond for the United Kingdom property whilst the applicant has been enjoying rental income from the Zimbabwean property whose status has not been disclosed.
It is further argued that there is no rule relied on by the applicant which allows for the setting aside of an order by the issuing court except if there is a patent error. It is argued that this is not the applicant’s case and the matter should fail.
The respondent prays for costs on a legal practitioner client scale as the applicant’s conduct is meant to stifle the respondent from moving on and has resulted in her incurring costs unnecessarily.
WHETHER THIS APPLICATION IS FATALLY DEFECTIVE?
The applicant has titled his application as follows:
“Court application to set aside an order by consent.”
In paragraph 3 of the founding affidavit the applicant says that this is a court application to set aside a judgment by consent in terms of the Rules of this Honourable Court.
It is only in the heads of argument that the applicant specifies the particular rule he relies on as r 27, formerly r 56 of the High Court rules 1971, whereby he seeks to set aside an order for divorce that was granted after a consent order.
The applicant, in explaining the rule which he is relying on says:
“The Rule upon which the applicant relies on provides:
A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit.”
My perusal of r 27 of the High Court Rules, 2021 shows that it provides for the following: -
“Court may set aside judgment given in default
27. (1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has knowledge of the judgment for the judgment to be set aside, and thereafter the rules of court relating to the filing of opposition, heads of argument and the set down of opposed matters, if opposed, shall apply.
(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend and to the plaintiff to prosecute the action on such terms as to costs and otherwise as the court considers just.”
It is clear from the facts of this matter that the applicant is not alleging that the judgment in issue was given in his default and he later got to know of the order and has good and sufficient cause to explain his default so as to persuade the court to set aside the default judgment.
It was in fact the applicant who was in attendance at the hearing of matter HC 4291/16. He has always known of this order therefore. He was not in default. In fact the applicant argues that the order, though looking like a default judgment, on the face of it, was an order by consent.
It is clear that r 27 is not the appropriate rule for the applicant’s application. In any event what is quoted as the provision in r 27 is alien to these rules. My thorough perusal of the rules left me wondering whether the applicant was reading from the High Court Rules, 2021.
The case of City of Bulawayo v Megalithic Marketing (Pvt) Ltd HB 41/17 made clear the need for a party to specify the sub – rule or paragraph on which their application is based in the founding affidavit as a matter stands or falls on the founding affidavit.
In casu, the applicant does not specify the rule relied on in his founding affidavit. His attempt to beef up his skeletal case through the heads of argument is unacceptable. This may explain why the rule then identified does not fit to the facts.
There is no doubt therefore that this application is indeed fatally defective as it not based on any properly identified rule of this court. In such circumstances all the other arguments made are being put on nothing. They will surely collapse.
COSTS
The applicant should indeed be censured for his conduct of unnecessarily putting the respondent out of pocket due to his unreasonable and objectionable conduct of placing the respondent to considerable inconvenience well knowing that he has no leg to stand on in the High Court Rules, 2021. The court has been taken on a wild goose chase as the applicant cited a non-existent rule. This wasted the court’s time. In my opinion, costs on a higher scale are justified. See Crief Investments (Pvt) Ltd & Anor v Grand Home Centre (Pvt) Ltd & Ors HH 12/18 and Mahembe v Matambo 2003 (1) ZLR 149 @ 150C.
DISPOSITION
There being no application before me, the matter is struck off the roll with costs on a legal practitioner and client scale.
Muchawa J:…………………………..
Messrs Mushangwe & Company, applicant’s legal practitioners
Mushonga Mutsvairo & Associates, respondent’s legal practitioners