Herbet Jena v Sandra Manyangadze

### Preamble
1
HH 546 - 25
HCHF 994/25
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HERBET JENA

versus

SANDRA MANYANGADZE

HIGH COURT OF ZIMBABWE

MHURI J

HARARE; 7 July & 15 September 2025

Opposed Application

Mr P Tichaona, for the applicant

Mr A Masango, for the respondent

MHURI J:

The applicant approached this Court, with a composite application wherein he is seeking condonation for late filing of an application for rescission and rescission of the order granted by this court on 15 November 2024. The brief background giving rise to this application is that applicant was served with summons for the division of matrimonial property in February 2024. He did not enter appearance to defend, deliberately so because according to him he had liaised with the respondent advising her that he was not opposing the division of the property, save for two motor vehicles to wit: - a Mercedes Benz GLE registration AGF 6111 and a Volkswagen Gold engine number CHH 36081256984. He was meant to believe by respondent that she was going to liaise with her erstwhile legal practitioners Mr Sadowera that the two motor vehicles were going to be removed from the list of properties to be distributed.

Having filed no appearance to defend or consent paper the matter proceeded as unopposed without the list being amended and an order was granted on 15 November 2024 to this effect:

1 (a).	An order that the matrimonial house known as stand 3852 Tynwald Township of 			Lot 5 of Tynwald measuring 546 square metres with Deed of Transfer Number 			1284/11 be and is hereby shared equally between the plaintiff and the defendant.

b)	The house ….. mentioned above be sold by the plaintiff at the available market 			price and the parties share proceeds on an equal ratio.

c)	The movable properties be divided in terms of paragraph 13 of plaintiff’s 				declaration, the plaintiff also moves to keep the following movable properties 			which were acquired during the subsistence of the marriage as she significantly 			contributed in their acquisition.

The movable properties are as follows: -

1.1	A Mercedes Benz GLE motor vehicle with registration number AGF 6111 white in 		colour.

1.2	A Volkswagen Golf white motor vehicle with engine number CHH 36081256984.

1.3	Sofa Dining Table

1.4	Lounge Table

1.5	A television set in the dining room 3 inch

1.6	A television set in the bedroom

1.7	Matrimonial bed

1.8	Dressing table

1.9	Headboard in the bedroom

1.10	Brown leather sofa

1.11 	Kitchen utensils

d)	Defendant pays cost of suit.

Consequent upon the granting of the order, a letter dated 19 February 2025 by Malinga Masango Legal Practice demanding release of the said motor vehicles was served on the applicant on 28 February 2025.

Applicant contended that it was on this day that he became aware of the fact that contrary to the undertaking made by respondent, the two motor vehicles had not been removed from the list of properties to be distributed. He then filed this application on 14 March 2025.

In applications such as this one, the court has to consider the length of the delay, the explanation for the delay, prospects of success, finality to litigation and convenience to the other party. The list is not exhaustive. See: - Mzite v Damafalls Investment (Pvt) Ltd & Anor SC 21/18. See also Kombayi v Berkout 1988 (1) ZLR 53 (S).

The date of the order is 15 November 2024 and this application was filed on 14 March 2025. Hence the delay is four (4) months. He submitted that he became aware of the order on 28 February 2025. If this submission was to be believed, then applicant would not have been out of time to file the application for rescission since he filed his application on 14 March 2025 (i.e on the 10th day of becoming aware of the order). He was therefore within 30 days as required by the Rules. His explanation for seeking condonation was that it was out of abundance of caution in the event that respondent raises the point that the application for rescission was out of time.

Rule 29(2) of this Court’s Rules provides:-

“Any party desiring any relief under this rule may make a court application on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment” (emphasis added)

The explanation for seeking condonation in my view is hard to believe. I am persuaded by respondent’s submission that applicant became aware of the order, that is in November 2024 as the applicant complied with part of the order in January 2025 by selling the property in question. He only jolted into action when he received the letter of demand to release the motor vehicles on 28 February 2025. Applicant has not been candid with this court. I find therefore that there is no explanation for the delay at all. The default was wilful.

The “explanation” given is totally unbelievable or false to say the least. McNally JA aptly remarked in Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 at 212 G-H:

“……The court should not be asked to believe this kind of nonsense, and the client should be told that a candid and comprehensive explanation is required if he is to obtain the indulgence he seeks”

In Thokozani Khumalo v D.S. Mafurirano HB 11/2004 the same sentiments were echoed, “This kind of explanation is an insult to the intelligence of the court…… But anyone who puts forward a “reason” which is an insult to the intelligence of the court may have difficulty in satisfying the court of his good faith.”

Bartlet J did not mince his words either when he held that:-

“People are not allowed to come to court seeking the court’s assistance if they are guilty of lack of probity and honesty in respect of circumstances which causes them to seek relief from the court.”

See Deputy Sheriff Harare v Mahleza & Anor 1997 (2) ZLR 426 (H)

I echo the same sentiments as stated in the above cases.

As for prospects of success, I find that there are no prospects of success at all. Applicant intends to have rescinded an entire order whose other terms except for the term in respect of the two motor vehicles, he is not contesting. He intends to have rescinded an order arising from proceedings he deliberately took a position not to defend the summons. He filed no plea, deliberately so as per his submission on the basis that respondent had undertaken to remove from the list of assets to be distributed. This communication was not reduced into writing or into a consent paper.  Further, applicant has not said anything about the Volkswagen motor vehicle in this application save for an agreement of sale of the Mercedes Benz which in my view does not assist him without any affidavit from the said “owner” of the Mercedes Benz.

This application is not bonafides. It is meant to delay the inevitable. The balance of convenience favours not the applicant but the respondent. It has been said time without number by these courts, that there must be finality to litigation. In casu, that adage is apt.

I find that applicant has failed to pass the first hurdle of his composite application, i.e. condonation of late filing of the application for rescission. In that regard condonation is denied. In the result, rescission cannot be granted as it falls away.

It is therefore ordered that the application be and is hereby dismissed with costs on the legal practitioner and client scale as prayed for by respondent. This is an application which ought not to have been filed in the first place.

Mhuri J: …………………………………………………………..

Chatsama & Partners, applicant’s legal practitioners

Malinga Masango Legal Practice, respondent’s legal practitioners