Dhiren Shantilal Govan v Reena Narendra Govan

The parties are husband and wife married on 24 July 2016, with a daughter born on 6 December 2016. The appellant instituted divorce proceedings on 3 April 2023, seven years into the marriage. The only contested issues were custody, access, maintenance of the minor child, and which schools the child should attend. A pre-trial conference was held on 3 November 2023 before TSANGA J, where issues for trial were agreed. The trial was initially set for 11 November 2024 but was postponed several times. On 22 November 2024, the parties' legal representatives signed a document titled "INTERIM CONSENT ORDER" regulating interim custody and access arrangements. However, this document was never presented to a judge for conversion into a formal court order. The respondent subsequently filed an application on 20 January 2025 to discharge or set aside what she described as an "interim consent order issued on 22 November 2024" in terms of Rule 21(2) of the High Court Rules, 2021, claiming she was subjected to harassment and pressure before authorizing her legal practitioner to sign it. The High Court set aside the "consent paper" on 17 March 2025 in the best interests of the child and ordered the matter to proceed to trial. The appellant appealed this decision.

• Whether a document signed by parties' legal representatives but never converted into a court order constitutes a 'consent order' capable of being set aside under Rule 21(2) of the High Court Rules, 2021
• Whether the High Court had jurisdiction to set aside a non-existent consent order
• Whether the proceedings before the High Court were irregular and susceptible to review under section 25 of the Supreme Court Act
• What constitutes 'good and sufficient cause' for setting aside a consent judgment under Rule 21(2)

1. The matter is struck off the roll with no order as to costs. 2. In the exercise of the Court's power, jurisdiction and authority under section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings before the court a quo under case number HCHF 223/25 are set aside.

A document signed by parties or their legal representatives does not constitute a consent order of court unless and until it is presented to a judge through a chamber application and the judge enters judgment by consent in accordance with Rule 21(1) of the High Court Rules, 2021. Rule 21(2), which provides for the setting aside of a consent judgment on good and sufficient cause, can only be invoked where a valid consent judgment exists. A court has no jurisdiction under Rule 21(2) to set aside a non-existent consent order. Where proceedings are based on the mistaken premise that a consent order exists when in fact only a signed agreement exists, such proceedings are irregular and may be set aside as a nullity by the Supreme Court exercising its review powers under section 25 of the Supreme Court Act.

The Court expressed concern about the manner in which the parties were conducting their divorce proceedings, noting that they had repeatedly postponed the commencement of trial while fighting over their nine-year-old daughter. The Court observed that the couple had "chosen to repeatedly postpone the commencement of the divorce trial" and had "busied themselves with this side-show" rather than resolving the dispute definitively through trial. MATHONSI JA commented that "as to why the parties in this matter, who are going through a divorce they have elected to pursue at a snail's pace while tenaciously fighting over their nine-year old daughter, have decided to bring up their daughter the way they are doing is difficult to fathom. It is a strain to the mind." The Court also noted, without elaborating, that it was "not apparent from the record why the parties deemed it fit to subject their child to such a process" (referring to requirements for psychological sessions before every access exchange), but stated this fell outside the scope of the inquiry. The Court acknowledged the established principles for what constitutes "good and sufficient cause" for setting aside a consent judgment, citing Roland & Anor v McDonnell 1986 (2) ZLR 216 (S) and Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) 488 (S), which require consideration of: (a) the reasonableness of the explanation for how the consent judgment was entered; (b) the bona fides of the rescission application; and (c) the bona fides of the defence on the merits with some prospect of success.

This case clarifies the critical procedural distinction between an agreement signed by parties (or their legal representatives) and a formal consent order of court in Zimbabwean law. It establishes that Rule 21 of the High Court Rules, 2021 requires a two-stage process: (1) signing and filing a consent to judgment, followed by (2) a chamber application to a judge who then enters judgment by consent. Only after this complete process can Rule 21(2) be invoked to set aside the consent judgment on good and sufficient cause. The case demonstrates the Supreme Court's willingness to invoke its review powers under section 25 of the Supreme Court Act where irregularities come to its attention, even in the context of an appeal. It emphasizes the importance of precision in identifying the legal nature of documents and crafting appropriate relief, particularly in family law matters where parties may be operating under mistaken assumptions about the status of their agreements. The judgment also serves as a cautionary tale about the importance of following proper procedure in converting party agreements into enforceable court orders.