Herbet Jena v Sandra Manyangadze

The respondent instituted proceedings for division of matrimonial property and served summons on the applicant in February 2024. The applicant deliberately did not enter appearance to defend, claiming he had liaised with the respondent and believed she would remove two motor vehicles (a Mercedes Benz GLE registration AGF 6111 and a Volkswagen Golf) from the list of assets to be distributed. The matter proceeded as unopposed and an order for division of matrimonial property, including the two motor vehicles, was granted on 15 November 2024. On 28 February 2025, the applicant was served with a letter of demand for release of the motor vehicles. He then filed a composite application on 14 March 2025 seeking condonation for late filing and rescission of the 15 November 2024 order. The applicant claimed he only became aware of the order on 28 February 2025, though he had sold the matrimonial property in January 2025 in compliance with part of the order.

• Whether condonation should be granted for the late filing of the application for rescission
• Whether the applicant provided a satisfactory explanation for the delay in filing the rescission application
• Whether the applicant had prospects of success in the rescission application
• Whether the applicant's conduct demonstrated good faith and probity
• The application of Rule 29(2) regarding the time period for filing applications for rescission

The application was dismissed with costs on the legal practitioner and client scale. The court specifically ordered: "It is therefore ordered that the application be and is hereby dismissed with costs on the legal practitioner and client scale as prayed for by respondent."

An applicant seeking condonation for late filing of a rescission application must provide a candid, comprehensive and believable explanation for the delay. Where an applicant provides an explanation that is unbelievable or false, and where the court finds the applicant has not been candid, condonation will be refused. A party who deliberately chooses not to defend proceedings based on an unwritten undertaking and then seeks to rescind an order after partially complying with it lacks prospects of success. Courts will not grant relief to applicants who lack probity and honesty in respect of circumstances causing them to seek relief from the court. The principle of finality to litigation must be respected.

The court made strong observations about the quality of the applicant's explanation, characterizing it as "an insult to the intelligence of the court" and "nonsense" that the court should not be asked to believe. MHURI J endorsed and applied previous judicial statements emphasizing that clients must be told that candid and comprehensive explanations are required when seeking the court's indulgence. The court observed that this was an application "which ought not to have been filed in the first place," justifying the punitive costs order on the attorney-client scale. The court noted that the applicant said nothing about the Volkswagen motor vehicle in the application, and that the agreement of sale for the Mercedes Benz did not assist without a supporting affidavit from the purported owner.

This case reinforces important principles in Zimbabwean civil procedure regarding condonation applications and rescission of judgments. It emphasizes the requirement for candid and honest explanations when seeking the court's indulgence, the consequences of deliberate failure to participate in proceedings, and the importance of finality to litigation. The case demonstrates that courts will not tolerate applicants who are not forthright about the circumstances leading them to seek relief, and that willful default combined with false explanations will result in dismissal. The award of costs on the attorney-client scale reflects the court's disapproval of applications that should not have been filed in the first place.