Lincoln Tafadzwa Ushamba v Damson Zuva and The Presiding Magistrate (S Ndhlovu) Bulawayo Magistrate Court

The applicant and first respondent had a relationship that resulted in the birth of a minor child, Khloe Damson, in May 2009. The first respondent obtained various maintenance orders and variations in Harare in 2010, 2011, and May 2014 (the latter requiring payment of school fees and $500 maintenance). On 23 January 2020, the first respondent obtained an upward variation of the May 2014 order in default before the Bulawayo Magistrate Court (case M9/20). The applicant successfully applied for rescission of this default judgment, and on 29 June 2020, Magistrate Ncube granted the rescission and ordered that the main matter be set down for hearing within seven days. However, on 6 July 2020, Magistrate Ndhlovu (second respondent) issued a default judgment rescinding the rescission of judgment granted by Magistrate Ncube and reinstating the order of 23 January 2020. The applicant then approached the High Court seeking review of Magistrate Ndhlovu's decision. During the pendency of the review, maintenance payments for the minor child were suspended.

• Whether the application for review was filed out of time and whether condonation should be granted
• Whether the second respondent's decision to rescind a rescission of judgment was grossly irregular
• Whether the second respondent misdirected herself by ordering the reinstatement of the order of 23 January 2020 after it had been rescinded
• Whether a magistrate can review the decision of another magistrate of the same court
• Whether an order granting rescission of judgment is interlocutory in nature
• The application of the best interests of the child principle in maintenance disputes

1. The current valid order in the maintenance dispute is the order dated 23 June 2020 by Magistrate N. Ncube under Case Number M9/20. 2. The order of Magistrate S. Ndhlovu dated 6 July 2020 under Case Number M9/20 is set aside in toto. 3. The applicant is ordered to set down the maintenance matter for enquiry within seven days. 4. The first respondent is ordered to set down the matter as prescribed in paragraph 2 of Magistrate Ncube's order if the applicant fails to comply. 5. Parties to exchange current addresses and necessary information for effective service of process. 6. Interim maintenance of ZWL$15,000 to be paid by the applicant until finalization of the maintenance enquiry. 7. No order as to costs.

A magistrate cannot rescind a rescission of judgment granted by another magistrate of the same court, as this constitutes an impermissible review of a coordinate court's decision and amounts to a gross irregularity. An order granting rescission of judgment is interlocutory in nature as it does not dispose of the rights of parties or have the effect of disposing of the whole or portion of relief claimed. Default judgments do not address the merits of a dispute, and rescission orders should be granted to allow parties to canvass issues on the merits rather than to perpetuate procedural skirmishes. The best interests of the child, as enshrined in s 81(2) of the Constitution, are paramount in maintenance disputes and may justify the exercise of judicial discretion to condone procedural irregularities in terms of Rule 7 of the High Court Rules when necessary to protect those interests. The High Court, as Upper Guardian of minor children under s 81(3) of the Constitution, has an obligation to ensure adequate protection of children's interests, including in maintenance proceedings.

The court made several important observations: (1) It noted that both parties were "very litigious" with numerous accusations about how matters had been handled, and that there were several lawsuits pending before different courts relating to the minor child; (2) The court observed that counsel for the first respondent had allegedly obtained close to fifty-four postponements on pending maintenance cases; (3) The court invoked the adage "When elephants fight the grass suffers" to illustrate how children suffer when parents are "egocentrically fighting their battles without considering the short and long term, socio-psychological impact on their children"; (4) The court emphasized the policy of the law favoring finality to litigation without doing injustice to parties, citing the need to avoid multiplicity of lawsuits; (5) The court noted that rescission of a rescission is "undesirable" as courts lean in favor of disposition of disputes on their merits; (6) The court commented that the first respondent chose not to take the route that would have ensured finality to the dispute by proceeding to have the matter heard on the merits as directed, instead opting for further default proceedings.

This case is significant in Zimbabwean civil procedure and family law for several reasons: (1) It clarifies that a magistrate cannot rescind a rescission of judgment granted by another magistrate of the same court, as this would amount to impermissible review of a coordinate court's decision; (2) It reinforces the principle that courts should favor disposition of disputes on their merits rather than through default judgments and successive procedural applications; (3) It confirms that an order granting rescission of judgment is interlocutory in nature and does not dispose of the parties' rights; (4) It demonstrates the court's willingness to exercise its discretion to condone procedural irregularities in the interests of justice, particularly where children's welfare is at stake; (5) It emphasizes the paramountcy of the best interests of the child principle enshrined in s 81(2) of the Constitution in maintenance disputes; and (6) It affirms the High Court's role as Upper Guardian of minor children under s 81(3) of the Constitution, requiring active intervention to protect children's interests even when parents are engaged in protracted litigation.