Roselynne Mangota v David Mangota

The applicant sought an order for payment of maintenance pendente lite and contribution of costs in terms of the Matrimonial Causes Act and Order 35 r 274 of the High Court Rules. There was a pending matrimonial matter (HC-2576-16) in which the respondent sought a decree of divorce and other ancillary relief. The matter was set down for hearing on multiple occasions (25 September 2020, 16 November 2020, 29 January 2021, 20 April 2021, and 30 June 2021). The applicant failed to attend several hearings, with her legal practitioner indicating she was ill-disposed and that they had failed to get hold of her. On 30 June 2021, the applicant's legal practitioner applied for removal of the matter from the roll on grounds that the applicant was ill-disposed. The respondent did not oppose this application. It also emerged that the applicant was not paying legal fees to her law firm. The court had previously invoked Order 32 r 229B requiring oral evidence from both parties to determine the application.

• Whether the matter should be removed from the roll on grounds of the applicant being ill-disposed
• Whether oral evidence is required in maintenance pendente lite applications where parties have adopted different positions
• Whether a non-fee paying litigant is entitled to contribution towards legal costs
• Whether Rule 18 on issuing summons against a High Court judge without leave was applicable to the matter

1. The matter was removed from the roll. 2. No order as to costs.

The binding legal principles established are: (1) A court has discretion to remove a matter from the roll, but should provide clear written reasons in exceptional cases to assist judges who subsequently handle the matter; (2) In maintenance pendente lite applications where parties adopt significantly different positions and file numerous supporting documents, oral evidence may be required despite the generally less stringent standard applicable to such applications compared to post-divorce maintenance; (3) The court may invoke Order 32 r 229B to require oral evidence in application proceedings where the interests of justice so demand; (4) When balancing the interests of the applicant as dominus litis against the respondent's entitlement to finality in litigation, removal from the roll may be the appropriate remedy where oral evidence is necessary but the applicant has repeatedly failed to attend hearings.

The court made several non-binding observations: (1) That over the years, matters are often removed from the roll without clear reasons or no reasons being endorsed on the file, making it difficult for subsequent judges to understand the history; (2) That Practice Direction Number 3/13 still has the force of law notwithstanding the Supreme Court judgment in Dube v Premier Service Medical Aid Society, SC-73-19; (3) That the legal issue of whether a non-fee paying litigant is entitled to contribution towards legal costs needs to be addressed by legal practitioners after obtaining clarity from the applicant; (4) That this was a matter warranting no order as to costs in the exercise of the court's discretion. The court also noted mero motu consideration of whether Rule 18 on issuing summons against a High Court judge without leave was applicable, ultimately determining it was not applicable to this matter.

This case is significant for several procedural reasons in Zimbabwean law: (1) It emphasizes the importance of providing clear reasons when removing matters from the roll, particularly for the benefit of other judges who may subsequently handle the matter; (2) It clarifies that while Practice Direction Number 3/13 does not require written judgments for all removals from the roll, exceptional matters warrant written reasons; (3) It confirms that maintenance pendente lite applications, despite having a lower evidentiary standard than post-divorce maintenance, may still require oral evidence where parties have adopted significantly different positions; (4) It demonstrates the court's power under Order 32 r 229B to call persons to give oral evidence in applications in the interests of justice; (5) It raises the important question of whether non-fee paying litigants are entitled to contribution towards legal costs in matrimonial matters.