Lincoln Tafadzwa Ushamba v Damson Zuwa and Others

The applicant and first respondent had a child, Khloe Damson, born in May 2009. The first respondent obtained a maintenance order against the applicant in Bulawayo Maintenance Court (M9/20). On 23 January 2020, the court varied the maintenance order upwards requiring the applicant to pay $5,000.00 monthly plus 50% of school fees. The applicant successfully applied for rescission of this default judgment on 17 June 2020 (Ncube judgment). The first respondent then applied to rescind the rescission order, which was granted on 6 July 2020 by Magistrate Ndhlovu, reinstating the default judgment. The applicant successfully reviewed the Ndhlovu judgment before the High Court (HH 452-22), which set it aside as irregular and declared the Ncube rescission order valid. Meanwhile, the applicant was criminally charged and convicted under s 23(1) of the Maintenance Act for failure to pay maintenance totaling $492,000.00, sentenced to 5 months imprisonment suspended on condition of payment by 30 June 2022. His application to the magistrate for suspension of sentence pending appeal was dismissed, with only an extension to 15 July 2022 granted. The applicant then filed this urgent application seeking suspension of the sentence.

• Whether the application was procedurally competent given that the same relief had already been refused by the convicting magistrate
• Whether a court can grant relief that conflicts with an existing order of the magistrates court without following proper procedures for review or appeal
• Whether a provisional order can be granted when founded on a procedurally irregular or incompetent application
• Whether magistrates of equal rank have jurisdiction to set aside each other's judgments
• The proper procedure for seeking suspension of sentence pending appeal
• Whether the matter was properly urgent

The application was struck off the roll with costs against the applicant. The court ordered the applicant to pay the wasted costs.

It is procedurally incompetent and irregular to seek relief from one court that has already been refused by another court without following proper procedures of appeal or review. Once a decision has been made refusing certain relief, the dissatisfied party must either apply for review or note an appeal against that decision. A court cannot grant a provisional order when the main relief sought is founded on a procedurally irregular or null application. As established in Macfoy v United Africa Company Ltd and applied in Mutyasira v Gonyora, if an act is void and a nullity, any proceeding founded upon it will collapse. Litigants must adopt correct procedures in seeking relief from the court, otherwise their claims will not be determined on the merits due to procedural irregularity.

The court made several non-binding observations: (1) Cases involving maintenance of minor children should be prioritized and given precedence over ordinary roll matters because delays cause children to suffer, though this is still subject to the particular circumstances of each case determining whether the matter is genuinely urgent; (2) The court agreed with and endorsed the ratio decidendi in HH 452-22 that the Ncube order was the valid order in M9/20; (3) The court noted it was exercising jurisdiction in Harare rather than referring to Bulawayo High Court based on the reasonable explanation that the criminal case was determined in Harare and related High Court matters had been dealt with there; (4) The court observed that judicial officers of like rank do not have power to set aside each other's judgments - this can only be done by superior courts on appeal or review, making the Ndhlovu judgment declaring the rescinded default judgment still stood incompetent; (5) The court chose not to determine arguments about whether the $477,000 was still due or whether the first respondent's appeal suspended the High Court's interim maintenance order, leaving these for a properly constituted application.

This case is significant for emphasizing the importance of procedural propriety in Zimbabwean civil procedure, particularly: (1) the principle that a litigant cannot seek the same relief from a different court that has already been refused without following proper appeal or review procedures; (2) the application of the Macfoy principle that proceedings founded on procedural nullities cannot stand; (3) confirmation that magistrates of equal rank cannot set aside each other's judgments - this can only be done by superior courts on review or appeal; (4) guidance on the proper procedure for seeking suspension of sentence pending appeal; and (5) the principle that even meritorious claims may fail if not brought through correct procedures. The case also illustrates the complexities that can arise from multiple variation applications and conflicting maintenance orders.