Fatima Rosina Mugwadhi (nee Muvazhi) v Nixon Mugwadhi and Registrar of Deeds NO

The applicant and first respondent are former husband and wife whose marriage was dissolved on 11 May 2017 under case HC 3711/17. A consent paper was incorporated into the decree of divorce regulating custody, access, maintenance, division of property and costs. The applicant sought to amend the consent paper, claiming it was not properly worded and did not provide for consequences of non-compliance, leading to the first respondent deliberately ignoring compliance. The applicant specifically sought amendments relating to division of matrimonial property to enable transfer of properties granted to each party, including compelling the first respondent to surrender title deeds and sign consent to transfer documents within two weeks, failing which the Deputy Sheriff would sign transfer papers. The application was purportedly made in terms of section 7 of the Matrimonial Causes Act. The first respondent opposed the application and raised three points in limine at the hearing.

• Whether there was a valid application before the court given the incorrect legal basis cited
• Whether section 7 of the Matrimonial Causes Act provides for amendment of consent papers or whether section 9 should have been used for variation
• Whether the relief sought was competent in that it sought to amend only the consent paper without amending the court order incorporating it
• Whether the applicant had dirty hands and should be denied audience for failing to transfer property to the first respondent as per the original consent order
• Whether costs on a punitive scale were warranted

The application was dismissed with costs on an ordinary scale

An application must be brought under the correct legal provision to establish the court's jurisdiction to grant the relief sought. Section 7 of the Matrimonial Causes Act does not provide for amendment of consent orders; such relief must be sought under section 9 which deals with variation of orders. Relief sought must be competent and effective - where a consent paper has been incorporated into a court order, one cannot amend only the consent paper without also amending the incorporating order, as this would create confusion and render the amendment ineffective. A party seeking the court's assistance to enforce compliance with a consent order must themselves have complied with their own obligations under that order (the clean hands doctrine) - a court will not entertain an application by a party who is in contempt of the same order they seek to enforce or amend until they have purged their contempt.

The court observed that while costs on a higher scale should be awarded in exceptional circumstances where a party's conduct is mischievous, objectionable and the cause of all costs, or where there is dishonesty in litigation, a merely ill-conceived application that is doomed to fail does not necessarily warrant punitive costs. The court noted that despite the applicant having brought previous unsuccessful applications and having received clear directions from the court in case HC 8513/19, this conduct did not rise to the level of objectionable behavior justifying costs on a higher scale. The court also noted that when seeking to amend something, one is in fact seeking a variation from the original, making the distinction between "amendment" and "variation" largely semantic in this context.

This case reinforces important principles of Zimbabwean civil procedure and family law: (1) the requirement for applicants to cite the correct legal basis when approaching the court to enable proper assessment of jurisdiction; (2) the distinction between sections 7 and 9 of the Matrimonial Causes Act - section 7 does not provide for amendment of orders while section 9 governs variation of existing orders; (3) the requirement that relief sought must be competent and effective - one cannot amend a consent paper incorporated into a court order without also amending the court order itself; (4) the application of the "clean hands" doctrine in matrimonial matters - a party seeking enforcement or amendment of a consent order must themselves have complied with their obligations under that order; and (5) the limited circumstances in which costs on a higher scale are appropriate, requiring exceptional circumstances involving dishonesty or objectionable conduct rather than merely a poorly conceived application.