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. THE APPEAL Riled by the outcome, the appellant appealed to this Court against part of the judgment of the court a quo on six grounds. The part appealed against is the setting aside of the consent order and the order that the main matter proceeds to trial on the issues agreed before TSANGA J. The grounds of appeal are: “1. The court a quo erred and misdirected itself in granting the application for setting aside of the consent order in circumstances where the court had not found that there was good and sufficient cause to set aside the consent order. 2. Having found that the court was unable to make a determination in the absence of affidavits by Messrs Whatman and Stewart and Advocate Tawanda Zhawarara, confirm that they executed the consent order without the respondent’s instructions, the court a quo erred and misdirected itself in proceeding to set aside the consent order. 8 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 3. The court a quo erred and grossly misdirected itself in setting aside the consent order, having accepted that the respondent clearly instructed her legal practitioners to execute the consent order. 4. The court a quo erred and misdirected itself in setting aside the consent order in circumstances where it made a finding that the application was wholly without merit. 5. The court a quo erred and misdirected itself in finding that it is in the best interests of the minor child that the consent order be set aside in circumstances where the consent order facilitated access to the minor child by both parents pending the finalization of the divorce proceedings. 6. The court a quo erred and misdirected itself in finding that it is in the best interests of the child that the consent order be set aside in circumstances where the consent order narrowed issues for trial and setting it aside reopens all issues and results in a protracted trial.” The appellant craved the success of the appeal with costs, the setting aside of the offending parts of the judgment a quo and the substitution of an order dismissing the application and directing that the trial be conducted on the agreed issues. After hearing submissions from counsel, including an objection belatedly raised by Ms Mahere for the respondent without giving notice as required by r 58 (3) of the Supreme Court Rules, 2025, the court reserved judgment. It was upon a consideration of judgment that it occurred to the Court that what was before the court a quo was a “Court Application for the Discharge of an Interim order issued on the 22 November 2024, alternatively to set aside a consent order, in terms of r 21 (2) of the High Court Rules.” To that extent, the application was predicated on the existence of a court order granted by consent which the respondent desired to have discharged or set aside in terms of r 21(2) of the court a quo` s rules. There is no consent court order issued by the court a quo on 22 November 2024 even though the parties proceeded as if such consent order existed and the court a quo treated the dispute as that of the setting aside of either a consent order or a consent paper. It 9 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 used the terms interchangeably. Only a document signed by the parties is in the record. The Court was of the view that the issue was dispositive of the matter. Counsel did not address the Court on that aspect during the hearing of the appeal. The existence or otherwise of a consent order goes to the root of the proceedings that were before the court a quo. Faced with that predicament the registrar was directed to invite both counsel to submit supplementary heads of argument addressing that issue. The registrar`s letter was uploaded on 11 February 2026 and invited counsel to file the supplementary heads of argument by close of business on 19 February 2026. SUPPLEMENTARY HEADS OF ARGUMENT In their belatedly filed supplementary heads of argument, counsel for the appellant confirmed that the written agreement of the parties was not reduced to a court order and that it remained merely an agreement regulating the interests of the child pending trial. It was submitted on behalf of the appellant that the respondent presented an incompetent cause of action to the court a quo as she could not sue for the setting aside of a non-existent court order. In counsel’s view, this called for the success of the appeal and the setting aside of the judgment a quo. The appellant contested the suggestion by the respondent that the court a quo was correct in setting aside the agreement on the basis that there was no application for such relief. In the appellant’s view, if the respondent is unhappy with the agreement, she has to fashion a cause directed at it and not what she did. Counsel for the appellant suggested two possible solutions in the circumstances. Firstly, the Court was urged to find that the respondent failed to establish a right to judgment and as such that the application should have been dismissed. As a corollary to that, so it was argued, the 10 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 appeal should succeed with costs with the judgment being set aside and substituted with an order dismissing the application. Alternatively, it was suggested that the Court should exercise its powers under s 25 of the Supreme Court Act to review the judgment a quo as it granted a wrong and incompetent relief. The result of the review, according to the appellant, should yield the setting aside of the judgment, an eventuality which will leave the application still hanging. Upon realising that conundrum, counsel half-heartedly suggested that the matter be remitted to the court a quo for it to reconsider the application in light of the stark reality that there was no consent order. In her supplementary heads of arguments, Ms Mahere for the respondent, readily conceded that what was roundly referred to as an interim consent order is not “a valid court order”. She asserted that the document was misdescribed and contradictory. Counsel conceded that the parties, and indeed the court a quo, were “under the firm, yet mistaken, impression that the document was a valid and binding court order.” Ms Mahere however sought to argue that the respondent had challenged the validity, interpretation and effect of the purported interim consent order as an unenforceable document. For that reason, so it was argued, the court a quo was correct in setting the document aside. In advancing that argument, counsel contended that the respondent did not appeal against the judgment setting aside the “order” and reinstating the issues for trial fixed by TSANGA J because it is trite that a party can only appeal against an order of the court and not the reasons. The Court was urged on behalf of the respondent to dismiss the appeal as being without merit because, in counsel’s view, reliance on r 21 (2) of the High Court Rules, 2021 was in the alternative. The main thrust of the respondent’s case a quo, it was argued, was the discharge of 11 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 the “interim consent order” in terms of the common law. I must say that this is an ingenious argument which however is not supported by the facts. THE LAW As already stated, the respondent filed an application for the discharge or setting aside of an interim consent order purportedly granted by the court a quo on 22 November 2024. The setting aside was sought in terms of r 21 (2) of the High Court Rules, 2021. A judgment by consent is regulated by PART III of the Rules and in particular r 21 which provides: “Judgment by consent. (1) Save in actions for relief affecting status, at any time after service of summons a defendant may consent, in whole or in part to judgment without appearing in court and such consent to judgment shall be in writing and signed by the defendant personally or by a legal practitioner who has entered appearance to defend on his or her behalf and where the defendant has personally signed a consent to judgment, his or her signature shall either be witnessed by a legal practitioner acting for such defendant and not for the plaintiff or be verified by affidavit and upon filing a consent to judgment with the registrar the plaintiff may make a chamber application for judgment and thereafter a judge may give judgment according to the consent. (2) A judgment given by consent under these rules may be set aside by the Court and leave may be given to the defendant to defend, or the plaintiff to prosecute the action and such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court considers just.” (The underlining is mine) The above provisions are clear and unambiguous. They simply mean that, where a summons has been issued, the defendant to the action may sign a consent to judgment. Such a defendant may do so either personally, in which event the defendant’s signature shall be witnessed by his or her legal practitioner or verified by affidavit, or through his or her legal practitioner. 12 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 Sub rule (1) of r 21 makes it crystal clear that the consent to judgment has to be filed and once it has been filed, the plaintiff may make a chamber application for judgment. It is only upon such application that a judge may give judgment by consent. The process does not end with the signing and filing of the consent to judgment but has to be followed with an application and the grant by a judge of the judgment by consent. Where the process set out in sub rule (1) of r 21 has been satisfied, then the provisions of sub rule (2) set in. In other words, what triggers the remedy provided for in sub rule (2) of r 21 is the existence of a judgment given by a judge in accordance with the consent of a defendant. There is no doubt that the same principle applies where the parties have both signed “a consent paper” which they desire to have converted into a judgment of the court. On good and sufficient cause being shown, the court may set aside a judgment given by consent. What constitutes good and sufficient cause for purposes of an application for rescission of a judgment given by consent has been authoritatively settled by this Court. See Roland & Anor v McDonnell 1986 (2) ZLR 216 (S) which was reiterated in Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) 488 (S) at 493 B-D, where the Court stated: “The adoption of these principles to an application to rescind a judgment given by consent enjoins the court to have regard to: (a) the reasonableness of the explanation proffered by the applicant of the circumstances in which the consent judgment was entered; (b) the bona fides of the application for rescission; (c) the bona fides of the defence on the merits of the case which prima facie carries some prospect of success; a balance of probability need not be established. As has been stated repeatedly too much emphasis should not be placed on any one of these factors. They must be viewed in conjunction with each other and with the application as a whole. An unsatisfactory explanation may be strengthened by a very strong defence on the merits. See, for instance, du Preez v Hughes NO 1957 R & N 706 (SR) at 709 A – F; Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173F. In general terms, what an applicant must show is 13 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 something which entitles him to ask for the indulgence of the court. See Arab v Arab 1976 (2) RLR 166 (A) at 173 E.” The authorities highlight the obvious, namely that it is only a consent judgment which can be the subject of an application for rescission, setting aside or discharge. Even then, such a consent judgment is not lightly interfered with. The applicant bears the onus of demonstrating good and sufficient cause for the relief to be afforded. This Court has power, jurisdiction and authority, reposed by s 25 (1) of the Supreme Court Act [ Chapter 7:13 ] to review proceedings and decisions of inferior courts of justice, tribunals and administrative authorities. In terms of subsection (2) of s 25: “(2) The power, jurisdiction and authority conferred by subsection (1) maybe exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.” In light of what has been noted in the proceedings before the court a quo, it is to the power, jurisdiction and authority conferred by s 25 that the Court has to resort. DETERMINATION I have stated that the respondent approached the court a quo seeking to discharge or set aside an interim consent judgment purportedly issued on 22 November 2024. The artillery power the respondent summoned to her aid was r 21 (2) of the High Court Rules, 2021. I have stated as well that the rule in question provides a remedy where, having signed a consent to judgment, the parties go further to make an application to a judge for judgment to be entered by consent. It is only where that set of facts exists that the provisions of r 21 (2) are triggered allowing 14 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 a party to approach the court, on good cause shown, for the setting aside or rescission of the judgment by consent. It is common cause that no application was ever made for judgment to be entered by a judge in terms of the document signed by the parties. It is equally common cause that no judge entered a judgment by consent, leaving the agreement signed by the parties standing firmly on its own. Confronted with that scenario, the judge a quo did not interrogate the consequences beyond merely using the phrases “consent order” and “consent paper” interchangeably. In fact, the parties themselves set up the judge for failure by making an irregular application and not interrogating its nature. At the end of that misadventure the court a quo issued a judgment setting aside the interim consent order even though the preamble to the disposition says “the consent paper” is set aside. There was no application before the court a quo for the setting aside of a “consent paper”. I have said that the ingenious argument advanced by counsel for the respondent that she had sought, before the court a quo , the setting aside of the document in terms of the common law is not supported by facts. I say so because the application before the court a quo was for the discharge of an interim consent order. What was sought in the alternative was its setting aside in terms of r 21 (2). Except that no such interim consent order existed. The respondent could not, and certainly did not, seek the discharge of “an interim agreement”. Neither did she seek the setting aside of “an interim agreement”. 15 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 The entire proceedings before the court a quo, and not just the judgment as suggested by the appellant, were irregular. Nothing valid could come out of them. The appeal before this Court, premised as it was, on an irregularity is also a non-event. It is a case which should be disposed of in terms of s 25 of the Supreme Court Act, the irregularity having come to the attention of the Court in the course of the hearing. DISPOSITION There was no interim consent order issued by the court a quo on 22 November 2024 as alleged by the respondent and acceded to by the appellant. The parties having signed an agreement which they intended to register as an order of the court, omitted to make a chamber application as required by r 21 (1) of the High Court Rules, 2021, for a judgment to be entered by consent. There was no basis for the respondent to make an application to discharge or set aside a non- existent court order. The application was irregular and improperly before the court a quo. The entire proceedings ought to be set aside as a nullity. Regarding the issue of costs, none of the parties picked up the anomaly which was only picked up by the Court when considering judgment. None is entitled to costs. In the result, it be and is hereby ordered that: 1. The matter is struck off the roll with no order as to costs. 2. In the exercise of the Court’s power, jurisdiction and authority under s 25 (2) of the Supreme Court Act [Chapter 7:13] the proceedings before the court a quo under case number HCHF 223/25 are set aside. 16 Judgment No. SC 21/26 Civil Appeal No. SC 771/25 KUDYA JA : I agree MAFUSIRE AJA : I agree Chimuka Mafunga Commercial Attorney’s, appellant’s legal practitioners. Venturas & Samukange, respondent’s legal practitioners.