Phillip Morosse Sakadza v Jeniffer Charumbira

The respondent issued summons for divorce against the applicant in May 2016. The applicant filed his plea and counterclaim. Following a pre-trial conference where parties failed to agree, the trial was initially set for 3-5 October 2018 but was postponed sine die. The trial was set down again for 1 April 2019. The applicant, who was in Portugal, failed to appear for trial. His lawyers, who had renounced agency, attended to advise the court he was unavailable. On 8 April 2019, the respondent obtained a default judgment granting the divorce and distributing matrimonial property. The default order awarded the respondent Stand 1127 Uplands Waterfalls and House 14208 Kuwadzana Extension as her exclusive property. The applicant was awarded three other immovable properties. The applicant admitted learning of the default judgment in April 2019 and sent money to his lawyers. On 17 November 2021, the respondent obtained an eviction order against the applicant. The applicant only filed this application for condonation to seek rescission of the default judgment in January 2022, approximately two years and eight months after the default judgment.

• Whether condonation should be granted for late noting of an application for rescission of a default judgment
• What factors should be considered in granting condonation: the extent and explanation for delay, prospects of success, and balance of convenience
• Whether the applicant's explanation for non-appearance at trial was reasonable
• Whether the applicant demonstrated good prospects of success in challenging the property distribution in the default judgment
• Whether the inordinate delay in seeking rescission was excusable

The application for condonation for late noting of an application for rescission of default judgment was dismissed with costs.

1. Condonation for late filing of rescission applications requires careful consideration of: the extent of delay, the explanation for delay, prospects of success, and balance of convenience. 2. An applicant seeking condonation must provide a full, frank and consistent explanation for the delay - material contradictions and lack of candour will be fatal to the application. 3. In assessing prospects of success for rescission, the court will examine the original pleadings; an applicant cannot use rescission to claim more than was pleaded in the original counterclaim. 4. Where a default judgment is consistent with what a party originally sought or proposed in their pleadings, there are no prospects of success in challenging it. 5. Inordinate delay (in this case nearly three years) combined with an inadequate or contradictory explanation will result in refusal of condonation. 6. In no-fault divorce jurisdictions, allegations of adultery do not determine property distribution, and women's indirect contributions to matrimonial property are recognized and protected.

The court observed that various paths lead to a divorce order - some after trial, most by consent following settlement agreements, and some by default. Default judgments are precarious because one party can seek to have them reversed, but courts require compelling reasons, especially where time has passed, parties have moved on, and life has settled. The court noted that there is no law mandating parents to register their matrimonial properties in their children's names upon divorce - property distribution is between the divorcing spouses regarding property acquired during marriage. The court expressed that courts are generally loath to make default judgments in divorce matters final due to the need to do justice, but are also alive to the fact that after a default judgment is granted and no action is taken, parties move on and life settles. The court commented that if the applicant wanted properties in his children's names, nothing prevented him from transferring his own awarded share to them.

This case clarifies the strict requirements for obtaining condonation to seek rescission of default judgments in Zimbabwe, particularly in divorce matters. It emphasizes that courts will carefully scrutinize the explanation for delay, consistency of affidavit evidence, and whether an applicant's current position contradicts their original pleadings. The case demonstrates the importance of finality in divorce proceedings and that parties cannot use rescission applications to improve upon positions they originally took in their pleadings. It also reinforces that in Zimbabwe's no-fault divorce jurisdiction, allegations of infidelity do not determine property distribution, and indirect contributions by spouses are recognized. The judgment illustrates that lack of candour and material contradictions in affidavits will be fatal to applications for condonation.