James Sambawamedza v Linda Chiyangwa

The applicant and respondent were formerly husband and wife. On 2 November 2006, under Case No HC 8631/03, the court granted the respondent a decree of divorce and ancillary relief in default of the applicant. The applicant had instructed legal practitioners to represent him but was unaware they had renounced agency on 14 February 2005. The applicant, based in South Africa, had appointed John Nhema as his agent to deal with the legal practitioners. The applicant believed his case was proceeding to trial and only discovered the default judgment when an estate agent approached his agent about selling the matrimonial home. The legal practitioners had not informed the applicant or his agent of their renunciation of agency. On 11 May 2007, the applicant filed an application to set aside the default judgment. The applicant accepted that the marriage had broken down irretrievably but disputed the division of assets, particularly two immovable properties in Cranborne and Adore Gold Norton, arguing he had made disproportionate contributions. The respondent filed papers in opposition but failed to appear at the hearing.

• Whether a decree of divorce granted in default is capable of rescission under Zimbabwe law
• Whether Order 9 Rule 63 of the High Court Rules permits the setting aside of a default judgment for divorce
• Whether section 9 of the Matrimonial Causes Act [Cap 5:13] allows for rescission of orders relating to division of matrimonial assets
• Whether partial rescission of a divorce order is permissible
• Whether the applicant demonstrated good and sufficient cause for the default judgment to be set aside

Paragraph 5 of the order of the court under case number HC 8631/03, relating to the division of the immovable properties of the parties, was set aside. The applicant was ordered to bear the costs of the application.

A default judgment in divorce proceedings, particularly orders relating to the division of matrimonial assets made under section 7 of the Matrimonial Causes Act [Cap 5:13], is capable of rescission under section 9 of that Act and Order 9 Rule 63 of the High Court Rules. Partial rescission of a divorce order is permissible, allowing the decree of divorce itself to stand while setting aside ancillary orders relating to property division where the party seeking rescission accepts that the marriage has broken down irretrievably. Section 9 of the Matrimonial Causes Act grants the court power to vary, suspend or rescind orders made in terms of section 7 (relating to matrimonial assets and maintenance) but does not extend to the dissolution of the marriage itself under sections 4, 5 and 6 of the Act.

The court observed that there was no authority in Zimbabwe directly addressing the rescission of a decree of divorce granted in default. The court noted that it has wide discretionary powers when considering the ambit of 'good and sufficient cause' for rescission. The court remarked that it would not be appropriate to embark upon the merits of an application to set aside a decree of divorce itself where proceedings are unopposed, and therefore did not debate the full circumstances under which the jurisdiction may set aside a decree of divorce granted in the absence of a party. The court expressed that it was not necessary to determine whether the applicant had shown good and sufficient cause for the default judgment to be set aside, given that the respondent chose not to appear and the application was unopposed. The court also noted with approval the principle from South African authorities that a decree of divorce induced by fraud or granted erroneously could be rescinded.

This case is significant in Zimbabwean matrimonial law as it establishes that: (1) a decree of divorce granted in default is capable of rescission, though the court did not have to fully determine this issue due to the unopposed nature of the proceedings; (2) partial rescission of divorce orders is permissible, specifically allowing for the decree of divorce to stand while setting aside ancillary orders relating to property division; (3) section 9 of the Matrimonial Causes Act permits rescission of orders relating to distribution of matrimonial assets but not the dissolution of marriage itself; and (4) the court may invoke its discretionary powers to grant relief where legal practitioners failed to notify a party of renunciation of agency. The case provides important guidance on the rescindability of different components of divorce orders in Zimbabwe.