Govan v Govan (SC 771/25) [2026] ZWSC 10 (3 March 2026)

1 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 REPORTABLE

(21) DHIREN SHANTILAL GOVAN v REENA NARENDRA GOVAN SUPREME COURT OF ZIMBABWE MATHONSI JA, KUDYA JA & MAFUSIRE AJA HARARE: 30 JANUARY 2026 & 3 MARCH 2026 L. Uriri with E. Mubaiwa, for the appellant Ms F. Mahere, for the respondent MATHONSI JA: As to why the parties in this matter, who are going through a divorce they have elected to pursue at a snail’s pace while tenaciously fighting over their nine- year old daughter, have decided to bring up their daughter the way they are doing is difficult to fathom. It is a strain to the mind. This is a couple that has chosen to repeatedly postpone the commencement of the divorce trial, a trial in which the only issue is the custody of the child in question and which preparatory and secondary schools she should attend and nothing else. This highly religious couple has seen it fit not to get on with the divorce trial, which would resolve the dispute once and for all, a trial which was initially set to commence on 11 November 2024, the divorce summons having been issued on 3 April 2023, barely seven years into the marriage. Instead, they have busied themselves with this side-show wherein, on 22 November 2024, on the eve of the divorce trial, they chose to sign what was christened “INTERIM CONSENT ORDER”. 2 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 Except that, even though its heading and preamble suggest that it was meant to be a court order issued by the Honourable Justice P HILLIPS with both Messrs Uriri and Zhuwarara representing the parties, PHILLIPS J never granted the order. It is not a court order but remains the signed agreement of the parties. Notwithstanding that, the respondent, having had a change of heart upon realising that the document was entrapping her, filed a court application in the High Court (the court a quo) in terms of r 21 (2) of the High Court Rules, 2021, seeking an order discharging “an interim order that was issued by the Honourable Justice PHILLIPS on the 22nd November 2024.” Seized with the application, vehemently opposed by the appellant, the court a quo did not disappoint. By judgment delivered on 17 March 2025, it issued the following order: “DISPOSITION The consent paper issued on 22 November 2024 is therefore set aside and the main matter is to proceed to trial. IT IS ORDERED THAT,

1. The interim consent order issued on 22 November 2024 in HCH 2262/23 be and is hereby set aside.

2. The matter in HCH 2262/23 shall proceed to trial on the issues referred to trial before the Honourable Justice TSANGA J.

3. The applicant shall pay the costs of this application on a legal practitioner/client scale.” Disgruntled, the appellant filed an appeal to this Court. The Court holds that in the absence of a court order issued by the court by consent of the parties, the application of the provisions of r 21 (2) of the High Court Rules, 2021 was not triggered. The respondent could not lawfully approach the court a quo for a remedy in terms of r 21 (2) to set aside a non-existent 3 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 consent order. By the same token, the jurisdiction of the court a quo, reposed by that rule, to set aside a consent order on good and sufficient cause was not engaged. The court further holds that whatever the case, the court a quo could not set aside the “consent paper” or the agreement of the parties in terms of r 21 (2). The proceedings before the court a quo were therefore irregular and are susceptible to review in terms of s 25 of the Supreme Court Act [Chapter 7:13].

The Facts

The parties are husband and wife, having been married at Karoi on 24 July 2016. Their marriage was blessed with a daughter, VG, born on 6 December 2016. Seven years into the marriage, in particular on 3 April 2023, the appellant instituted divorce action out of the court a quo. The respondent contested the divorce action but the areas of divergence revolved around the question of custody, access and maintenance of the minor child, as well as personal maintenance of the respondent. A pre-trial conference was held before TSANGA J on 3 November 2023 wherein the parties agreed on the issues for trial as being: (a) whether there should be joint or sole custody of the minor child; (b) whether the appellant should pay the sum of US$ 1500-00 as maintenance for both the minor child and the respondent; and (c) whether the child should attend Springvale House Preparatory School for her primary education and Peterhouse Girls School for her secondary education. 4 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 In due course, the matter was set down for trial, initially for 11 November 2024. Since then it has been postponed several times with the result that the trial still has not commenced more than two years later even though the issues are very narrow. Instead, while endlessly postponing the trial, the parties have concentrated on haggling over interim arrangements on access to the minor child. It was in the course of the haggling that an interim agreement, designed as a consent order of the court, was signed by the parties’ legal representatives on 22 November 2024. The document in question makes painful reading. It contains a lengthy preamble which purports to list what the parties settled, including the issues of divorce, custody, maintenance and access. It later veers off course and records that they have not reached an agreement on custody and the schools to which the child should be enrolled. What can be gleaned from that agreement is that, to an earlier court order granted by the court a quo by consent regulating the appellant’s right of access to the child, the parties added more terms. The pertinent part reads: “ IT IS ORDERED BY CONSENT THAT

1. The matter be and is hereby postponed to the 14th – 16th January 2025 with no order as to costs, for commencement of trial on the issues above, or the recording of any agreement that the parties may enter into in the interim as the case may be.

2. That pending the commencement of the trial and the grant of a final order of divorce and ancillary relief the interim custody of the child be regulated by the consent order of this Court dated 26 February 2024 under case number HCH 6478/23, subject to the following further orders:- 2.1 The child shall be attended to by the clinical psychologist who has been attending to the parties, Dr Debra Machando, prior to every exercise of access or custody rights by the plaintiff; and 2.2 The defendant shall drop off the child at Dr Machando’s rooms at least 90 minutes before the plaintiff is scheduled to commence access or custody of the 5 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 child and the said clinical psychologist shall prepare the child for the plaintiff’s custody or access as the case may be. 2.3 The plaintiff shall pick the child from the therapist and drop off the child at the therapist who shall prepare the child for the defendant’s resumption of access and custody.” I mention in passing that it is not apparent from the record why the parties deemed it fit to subject their child to such a process. As that aspect falls outside the remit of the present inquiry, nothing more needs to be said about it.

The Application

The respondent may have observed something wrong with the document because, on 20 January 2025, she filed a court application in the court a quo for the discharge of the interim

Order

In the alternative, she sought its setting aside in terms of r 21 (2) of that court’s rules. The respondent contended that the document was signed by her then legal practitioner without her proper authority as she had been subjected to harassment, pressure and arm-twisting before giving the legal practitioner the go-ahead to sign the document. In addition, the respondent made the point that, in any event, the agreement had served its interim purpose and that it was in the best interest of the minor child that it be set aside. It was her case that the interim order had lapsed upon the commencement of the trial. The application was opposed by the appellant who strongly defended the interim order as valid and binding on the parties. In the appellant’s view, the agreement was entered into freely and voluntarily by the parties through their legal representatives. He refuted that there was any impropriety in the manner the respondent’s legal practitioners signed the agreement adding that, if indeed they were to blame, an affidavit should have been elicited from them taking 6 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 ownership of what happened. The appellant rounded up by insisting that no good and sufficient cause for the setting aside of the consent order was shown. The court a quo discussed the legal requirements for the setting aside of a consent order in detail. It correctly cited the provisions of r 21 (2) of the High Court Rules, 2021 maintaining that a judgment granted by consent of the parties can be set aside on good and sufficient cause shown. It also set out what good and sufficient cause means. Citing relevant authorities, the court a quo made the point that a judgment granted by consent may be set aside on the grounds, for instance, of fraud, discovery of new facts or documents, and error or irregularities in the procedure. The court a quo underscored its role as the upper guardian of all minor children and that, in the resolution of the dispute, the interests of the child remain paramount. It then remarked at p 4 of the judgment: “As already … mentioned, there were several postponements and I imagine much negotiations before the parties finally concluded the consent order in question. It is incorrect that at any point, this Court made a ruling on alienation as alluded to. The parties were given all the time they requested as this Court`s preference is always for a settlement from the parties themselves. Setting the consent order aside which was validly signed by the legal representatives of the parties would therefore be nullifying all the efforts the parties made towards reaching a conclusion of this matter. The applicant`s claim is largely based on alleged misconduct by her erstwhile legal practitioners, on (whose) representations both the respondent and the court acted. It is trite at law that where an applicant seeks to rely on misconduct by his or her appointed legal counsel, he or she must attach to the application an affidavit by his or her legal practitioners confirming the alleged misconduct. The affidavit would then assist the court to understand what had transpired. In the instant case, that affidavit was not provided neither was the lawyer cited or called to confirm so that the court can make a proper determination of the matter. Although it has been submitted that the document purporting to be an interim consent order is merely a document signed by the applicant`s and respondent`s legal practitioners, case law is providing for the fact that it is a valid agreement and its sanctity has been given much gravity. By it the parties agreed on the consequences of their divorce, bound themselves 7 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 and the signatures made it enforceable by the courts. The agreement, therefore must be honoured and enforced by this Court as it would be contrary to public policy for the court to fail to give effect to such contracts in the absence of a valid reason……. The applicant was clear that she actually had instructed her erstwhile legal practitioners to sign the consent order but obviously she was also taking advice from several places. Despite all this, however, the matter was at trial stage, it will be better to allow for the issues the applicant claims to have to be ventilated further. In the best interests of the child in question who is at the centre of the consent paper, this Court will allow for the full trial to be held.” (The underlining is mine) The way I see it is that, having found that the respondent failed to establish a basis for the setting aside of the agreement, the court a quo made an about turn and decided to grant the application purely in the best interests of the child. Unfortunately the court a quo did not elucidate as to what those best interests were as would inform the setting aside of the agreement of the parties.