Rodger Sibanda v Casenge Thandiwe Sibanda

### Preamble
Judgment No. SC 71/25
1
Chamber Application No. SCB 97/25
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REPORTABLE	(71)

RODGER     SIBANDA

v

CASENEGE     THANDIWE     SIBANDA

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & MATHONSI JA

HARARE: 16 JULY 2025 & 20 AUGUST 2025

B. Magogo, for the applicant

S. Nkomo with Ms M. N. Sibanda, for the respondent

IN CHAMBERS

MATHONSI JA:	This is an opposed application for condonation of the failure to comply with the rules of this Court and for extension of time within which to appeal, which application is made in terms of r 50 (1) of the Supreme Court Rules, 2025.

The application was filed on 7 July 2025 while the judgment sought to be appealed was handed down by the High Court (the court a quo) on 10 August 2023.  In terms of the rules the applicant should have noted his appeal within 15 days thereafter, that is, by 30 August 2023 meaning that the applicant is almost 2 years out of time to note the intended appeal.  The judgment sought to be appealed granted a decree of divorce in favor of the applicant and ancillary relief thereof but the applicant, in essence, desires to challenge only part of the judgment, namely, the award of the matrimonial home and a motor vehicle to the respondent, his former wife.

Finding himself woefully out of time to undertake that exercise, the appellant has brought this application alleging that he has a reasonable explanation for the delay and that the proposed appeal enjoys very bright prospects of success.  The Court finds that the delay is extremely inordinate, the explanation for it is tenuous indeed and that the applicant has absolutely no arguable case on appeal.

The applicant does not deserve the indulgence of condonation and extension of time within which to prosecute a doomed appeal. He appears to be motivated by greed and an unbelievable lack of consideration for the best interests of his two minor children and the interests of his former wife. He married his former wife at the tender age of 19 years, having forced her out of school after persuading her to drop out and start working to earn a living for the family.

The application ought to be dismissed with costs as it lacks merit.

THE FACTS

At the time that the parties got married on 23 December 2011, the applicant was a 42 year old Principal Human Resources Officer at Zimbabwe Electricity Transmission and Distribution Company (ZETDC) who had earlier that year customarily married the then 19 year old respondent and commenced living with her in August 2011.  The moment they met and even before they got customarily married, the applicant persuaded the respondent to drop out of school and find employment for them to financially assist each other.  At that time the respondent was awaiting her ‘O’ level examination results intending to proceed to lower sixth form.

In pursuance of that agenda, the applicant arranged an interview for the respondent at ZETDC recalling her from Botswana where she was based and she was subsequently employed by that company as an Artisan Assistant.  During the subsistence of their marriage, although there was no convergence between them on how and when the property was acquired, they acquired both movable and immovable properties.  Their marriage having hit turbulence in 2017, they commenced living apart and the applicant instituted divorce proceedings in the court a quo.

The process of divorce was acrimonious in the extreme and had to be resolved after a full trial.  Following the trial at which they contested everything including the custody of their children, the court a quo underscored the need, in terms of s 26 (c) and (d) of the Constitution, for the State to ensure equality of rights and obligations of spouses during marriage and at its dissolution.  Having said that, the court a quo went on to assess the evidence placed before it in great detail.  Taking into account what it called “the mutually destructive evidence” of the parties, it found that the respondent was “a suitable parent to be awarded custody of the minor children.”

Regarding the distribution of the Mercedes Benz CI80 motor vehicle registration number AEA 9324, the court a quo again found that the parties “provided two mutually destructive versions”.  It however found credible, the evidence that all 5 motor vehicles, except for a Lucida motor vehicle registered in the name of the applicant’s son Ricardo, were registered in the applicant’s name. It also found credible, the evidence that the motor vehicles were kept by the applicant either at his work place or at home, were at the applicant’s disposal and that none of his business partners, including the one who testified on behalf of the applicant, lay a claim to the Mercedes Benz motor vehicle.

Taking into account the totality of the evidence, the court a quo concluded that the Mercedes Benz motor vehicle was matrimonial property.  In accordance with s 7 (4) of the Matrimonial Causes Act, it awarded the vehicle to the respondent thereby “leaving the plaintiff (the applicant herein) with five vehicles.”

In dealing with the immovable property known as number 64 Buena Vista, Bulawayo, which was still under construction when it was purchased, having been bought as an incomplete house and cottage, the court a quo rejected the evidence of the applicant because his “credibility was very poor.”  It embraced that of the respondent because it was “clear, straight forward and reliable.”  It found that the respondent contributed to its construction after it was purchased in 2011 and as such it was matrimonial property.

Taking into account the direct and indirect contribution of the parties to the rest of the immovable properties in Cowdray Park and Mahatshula suburbs of Bulawayo which remained with the applicant, the court a quo awarded number 64 Buena Vista, Bulawayo to the respondent.  In doing so, it reasoned thus:

“In distributing the matrimonial assets, the court is guided by s 7 (1) (4) of the Matrimonial Causes Act and the court’s discretion must be exercised in line with this section.  Accordingly, I have considered the number of immovable properties acquired by the parties during their 6 year marriage.  I have also considered the parties’ responsibilities especially the plaintiff’s responsibility to provide shelter for his children in a fair and just manner.”

It is that outcome which riled the applicant who, despite retaining the lion’s share of the matrimonial assets, would like to appeal against the judgment of the court a quo awarding the Mercedes Benz motor vehicle and number 64 Buena Vista, Bulawayo to the respondent.  Significantly, those are the only properties awarded by the court a quo to the respondent.  In his prayer in the proposed notice of appeal, the applicant proposes in the main, that stand 64 Buena Vista, Bulawayo be awarded to himself as his sole and exclusive property and that the Mercedes Benz motor vehicle be declared not part of the joint matrimonial estate.  Should that fail, he would rather the immovable property is shared equally between them subject to him being accorded 6 months within which to buy out the respondent.

Considering that the applicant is not challenging the award of custody of their minor children, now aged 12 and 10 respectively ( a girl born on 21 October 2013 and a boy born on 23 June 2015), the applicant would want the children and their mother to be rendered homeless and to use public transport to school and to work.  On his part, he would have the luxury of about 4 or so motor vehicles and 3 immovable properties.  It is unconscionable that a father can wish that for his family.

THE APPLICATION

The applicant has found himself out of time, as I have said, to note an appeal which has prompted him to launch the present application for condonation and extension of time within which to appeal.  His explanation for failure to act timeously is that he has previously made 3 attempts to obtain condonation for that failure.  His first application was filed on 12 July 2024 under case number SCB 70/24 which, of course, was also several months out of time. The application was struck off the roll for non-compliance with the rules.

The applicant stated that after that initial false start, he picked himself up and filed a second application for condonation and extension of time on 26 August 2024 under case number SCB 85/24.  The second application also suffered the same fate as the first, being struck off the roll for procedural defects.  He did not give up as he returned for the third attempt with yet another application filed on 19 December 2024 under case number SCB 144/24.

According to the applicant, the third application was also still born.  It had procedural defects which forced his legal practitioners to file a notice of its withdrawal on 3 January 2025.  It was not until 7 July 2025, more than 6 months after the withdrawal of the third application, that the applicant filed the present application.  That entire period is sought to be explained in one small paragraph thus:

“40. Unfortunately for me, during this same period I have not been so well lately and have had to focus on recovering my own health for the better part of the year.  I had not considered that the divorce and my ensuing ordeal with lawyers has taken a lot of mental toll on me.  I have had to seek professional help to overcome the mental depression.  When I recovered, I asked that my attorneys instruct counsel to draft the present application which he did leading to its filing as indicated on the court stamp”

Unfortunately, the “mental toll” and the “mental depression” were not substantiated.  Neither did the applicant find it necessary to submit any documentation tending to point to such health challenges which caused the 6 months inactivity.  Indeed, how that could be so for someone represented by legal practitioners fully instructed as to be able to file two previous applications prior to this one, remains a mystery.  This is more so considering that the applicant is not new to his divorce status, the parties having separated 8 years ago in 2017.  He is unlikely to have suffered such delayed reaction to his predicament.

Perhaps there is substance in what the respondent said in her opposition that what triggered the present application was her commencement of proceedings to execute the judgment of the court a quo.  In the respondent’s view, the applicant having blissfully sat on his laurels all along, he was stung into action to file the present application upon being notified of pending eviction from number 64 Buena Vista and the demand for the motor vehicle.

On prospects of success of the intended appeal, while the applicant accepts that the court a quo is reposed with very wide discretion when dividing the matrimonial assets, he maintained that there was gross misdirection on the part of the court a quo in the exercise of that discretion.  In his view, “the sole house (64 Buena Vista, Bulawayo) … was not available for distribution” because it was acquired before marriage and the respondent made no direct or indirect contribution to its improvement.

The applicant took the view that the court a quo should have closed its eyes completely to the rest of the properties of the parties merely because the parties did not ask it to distribute those other properties, the respondent having agreed that the applicant could have them.  He referred to the issues for trial agreed by the parties even though it is the parties themselves who placed evidence of such properties before the court a quo for consideration.

Turning to the Mercedes Benz motor vehicle, the applicant asserted that it belonged to his company notwithstanding that, at the trial, it was common cause that the said motor vehicle was registered in the applicant’s name.  His desire was therefore that the vehicle must be left with him as well at the expense of his former wife and children.

Opposing the application, the respondent made reference to her evidence presented at the trial, which was found credible, on her direct and indirect contribution to the acquisition of the immovable property.  She drew attention to the irony of the applicant claiming the entire property for himself while at the same time complaining of its being awarded to her.  She also mused about the applicant wanting to snatch the motor vehicle from her as well to leave her with nothing at all from the marriage.

THE LAW

Rule 50 (1) of the Supreme Court Rules, 2025 under which the application is made provides that an application for condonation of non-compliance with the rules and for extension of time in which to appeal must be signed by the applicant or his or her legal practitioner and accompanied by a copy of the judgment against which it is sought to appeal.

Commenting on condonation in Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & Anor SC 58/18, the Court remarked that:

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules. Good and sufficient cause is established by considering cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, or the prospects of success.  This is trite.”

It means that the factors relevant to the exercise of the indulgence of condonation are considered conjunctively.  It has also been stated that a litigant approaching the court for the indulgence must provide an acceptable explanation for failure to comply with the rules of the court.  The explanation given in the founding affidavit must be bona fide and satisfactory.  See Zhuwaki v The State SC 99/21.

Continuing along that line, reference must also be made to the remarks made in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17 at p 7 that:

“An applicant, who infringes the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

APPLICATION OF THE LAW

I have said that the delay in this matter spurns almost 2 years from the date the judgment sought to be appealed was handed down.  It is, by any measure, an inordinate delay.  It calls for a reasonable explanation for its occurrence.

The applicant sought to take action in irregular instalments between the date of judgment, which is 10 August 2023, and 12 July 2024, when he filed his first application.  When he did so, a period of almost a year had lapsed.  His explanation is that he was grappling with the IECMS filing processes all that time.

The explanation is demonstrably unsatisfactory.  With all the IECMS hubs dotted around the country, which are manned by cheerful and helpful information technology experts, it would have been very easy for the applicant to get assistance with the filing system if he wanted to.

After the initial application came to naught, the applicant filed two further applications between August and December 2024.  Both of them did not yield anything.  The applicant withdrew the third application on 3 January 2025 and did absolutely nothing for 6 months before filing the present application on 7 July 2025. An application for condonation must be brought as soon as the non-compliance has been detected.  See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S).  I have already said that the explanation that he had health problems during that period is far from satisfactory.  This is particularly so because the applicant has not taken the court to his confidence as to the nature and extent of his alleged health challenges.

Clearly, the applicant does not give an honest account of his default.  See Zimslate Quartzite, supra.  I therefore conclude that no satisfactory explanation for the inordinate delay has been rendered.  I venture to say that the explanation given is unreasonable.  Not even the supporting affidavit of Meluleki Bothwell Lunga, the applicant`s legal practitioner, taking the blame for part of the delay, does anything to ameliorate the deficiency.

On prospects of success of the intended appeal, that is, the question whether the applicant has an arguable case on appeal or whether the case cannot be categorized as hopeless (Unki Mines (Private) Limited v Dohne Construction (Private) Limited SC 18/23), the applicant did not fare any better either.

The court a quo found that since the parties were customarily married in August 2011 but had started living together in May 2011 and that the agreement of sale in respect of the incomplete house was signed on 15 February 2011, the house was completed during the subsistence of the marriage with the contribution of the respondent.

With regards to the motor vehicle, the court a quo made a very pointed factual finding that the company allegedly run by the applicant was his project designed to hide assets from the respondent.  It disregarded the corporate veil and found the motor vehicle to be matrimonial property and awarded it to the respondent leaving the applicant with the rest of the fleet of motor vehicles.

It occurs to me that the court a quo arrived at an equitable distribution of the matrimonial assets.  In doing so, it was involved in the exercise of a very wide discretion.  As stated by this Court in Gonye v Gonye 2009 (1) ZLR 232 (S), at 236 H 237 B;

“It is important to note that a court has an extremely wide discretion regarding the granting of an order for the division, apportionment or distribution of the assets of spouses in divorce proceedings.  Section 7(1) of the Act provides that the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any assets be transferred from one spouse to the other.  The rights claimed by the spouses under s 7(1) are dependent upon the exercise by the court of the broad discretion.”

Having regard to that, it is pertinent to note that all the proposed grounds of appeal do not seek to impugn the exercise of judicial discretion bestowed upon the court a quo by s 7 of the Matrimonial Causes Act.  It is trite that an appellate court will not interfere with the exercise of judicial discretion by a lower court unless it is established that the discretion was exercised capriciously or erroneously, that the lower court acted on a wrong principle, allowed extraneous or irrelevant matters to guide it, mistook the facts or disregarded some relevant considerations.  See Barros & Anor v Chimphonda 1999(1) ZLR 58 (S); Bowers v Bowers SC 11/18.

The applicant`s grounds of appeal do not even begin to lay a framework for interference on appeal with the exercise of judicial discretion, let alone the very broad discretion as provided for in s 7 of the Matrimonial Causes Act.  The applicant does not have a reasonably arguable case on appeal.

DISPOSITION

The delay in seeking condonation and extension of time is extremely inordinate.  The explanation thereof is unsatisfactory and clearly unreasonable.  Apart from that, the applicant does not have a reasonably arguable case on the intended appeal.

Taking into account all the factors relevant to the consideration of whether or not the indulgence of condonation for failure to act timeously and for extension of time within which to appeal, the inescapable conclusion is that such indulgence cannot possibly be afforded in the circumstances of this case.  The application stands to be dismissed and there is no reason why the applicant should not bear the costs.  I, however, do not agree with Mr Nkomo for the respondent that the applicant should be mulcted with punitive costs.  Costs on the ordinary scale should suffice.

I mention for completeness that Mr Nkomo for the respondent had taken 2 points               in limine, firstly, that the applicant approached the court with dirty hands in that he had not complied with the judgment of the court a quo awarding the 2 properties to the respondent.  In his view, the applicant should have first complied with the judgment before he could be accorded a hearing.  Mr Nkomo saw the light upon engagement with the court.  He accepted that the applicant could not be expected to comply with a judgment being appealed against and abandoned the objection.

Secondly, Mr Nkomo complained bitterly that the applicant had not settled the taxed costs of the respondent following a previous unsuccessful application that he made.  With the intervention of Mr Magogo for the applicant, the parties agreed that the taxed costs would be paid and that I should withhold judgment until proof of such payment was filed. This was in line with the reasoning adopted in Makoni v Makoni & Anor SC 7/18.  Happily, proof of payment was subsequently filed after which I proceeded to determine the merits of the application.

I should mention that the Rules have, in terms of the proviso to sub rule (7) of r 50, introduced a new provision which makes it a requirement, where a judge dismisses an application filed in terms of that rule, to do so with the concurrence of two other judges appointed for that purpose by the Senior Judge of the Court.  The proviso has been complied with.

In the result, the application is dismissed with costs.

GUVAVA JA   	:  	I agree

UCHENA JA    	: 	I agree

Tsara & Associates, applicant`s legal practitioners.

Nkomo & Sibanda, respondent`s legal practitioners.