Sagandira v Sagandira (229 of 2026) [2026] ZWHHC 570 (24 July 2026)

1 HH 550-26 HCH F 229/26 PATRICK SAGANDIRA versus DOREEN SAGANDIRA (NEE KASO) HIGH COURT OF ZIMBABWE PHILLIPS J HARARE, 27 April 2026 & 24 July 2026 Opposed Application B Madhau with TP Machiridza, for the Applicant ET Muhlekiwa, for the 2nd Respondent PHILLIPS J: 1. This is an application for condonation and reinstatement of an application that was filed under HCHF 2946/25. 2. Sometime late in 2023, the Respondent issued summons out of this Court in HCH5694/23 claiming US$292,250.00, being what she claims to be her 50% share of rentals apparently collected by the Applicant from a jointly owned immovable property known as Stand 2473 CBD, Rusape. 3. Default judgment having been entered in favour of the respondent in that matter, the applicant is seeking to restore its recission application onto the roll of matters in order to ventilate HCH 5694/23 on the merits. The respondent’s preliminary point 4. The respondent raised a preliminary point to the application to the effect that the application is fatally defective and not properly before this Court by reason of the applicant’s use of a form that the respondent alleged was unknown to and not sanctioned by the High Court Rules, 2021. 5. The applicant’s response was that the form of an application does not render the whole application defective especially in view of the fact that r 36(17) covers the position that “ No technical objection shall be raised to any pleading on the ground of any alleged 2 HH 550-26 HCH F 229/26 want of form .” Further that rule 7 gives the court the power to condone non-compliance especially instances where a respondent has suffered no prejudice. 6. Both parties having argued, this court did not uphold the preliminary point, not wanting the applicant to be prejudiced by the technical points that he himself had nothing to do with. This court relied on r 7 of the High Court Rules to condone the applicant’s departure from the provisions of the rules. It is this court’s preference, ordinarily, to decide a matter on the substantive issues, especially when the root of the matter is matrimonial in nature. 7. This court would rather overlook the infractions of the rules raised by the respondent and proceed to deal with the merits of the matter. The applicant’s case 8. On the merits, the applicant argued that he needed to establish two things, a reasonable explanation for the default and to prove prospects of success. His position was that the lawyer who was prosecuting his case left the law firm and then the assistance suffered an “administrative lapse”. An affidavit from the law-firm was deposed to to that effect and is on record. 9. The applicant expressed that there must be special circumstances to warrant it, but it is not always the case that the court will visit the sins of a legal practitioner on the client. He further submitted that there are prospects of success as there was no proper Notice to Plead and Intention to Bar. He also based his prospects of success on the fact that the judgment that the respondent is attempting to enjoy had superannuated having been handed down in 2010. The respondent’s case 10. The respondent on the other hand argued that there is divergence on what actually happened at the law firm and that good cause requirement had not been complied with. Her representative submitted that the applicant fails to account for much of the time that he failed to act despite having received notifications. 11. The respondent’s position was that the applicant was validly served through his lawyers and that the default judgment was procedurally obtained. Their argument was that 3 HH 550-26 HCH F 229/26 the respondent has been excluded from benefiting from the Rusape property for the past 35 months despite holding a 50% share. 12. The respondent argues that what the applicant is pleading for is mercy rather than justice. He argued that there is a limit to a litigant escaping the sins of his lawyers. The Law 13. Rule 36(17) of the High Court Rule, 2021 states as follows: “(17) No technical objection shall be raised to any pleading on the ground of any alleged want of form” 14. Rule 7 of the same Rules (supra) states as follows: “Departure from rules 7. The court or a judge may, in relation to any particular case before it or him or her, as the case may be— (a) direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interest of justice; (b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appears to it or him or her, to be just and expedient” 15. In Wonder Dube v Keith Matseka HH 96/18, BERE J stated the following: “I believe that where it is clear that an applicant has a good case on merits, the court must consider leaning backwards and try to accommodate the applicant. It is not cast in stone or rule of thumb that the court must always punish a litigant because of the shortcomings of his legal practitioner. In adopting this line of thinking I am persuaded by the position taken by the late Chief Justice CHIDYAUSIKU in the case of Lovemore Sango vs Chairman of the Public Service Commission and Another. The Chief Justice having noted that the applicant had failed to proffer a reasonable explanation for the delay remarked as follows: “Perhaps if the applicant had a strong case on the merits one could overlook the above and condone the delay in bringing this application. However, the applicant’s case on the merits is poor.” 16. In Lunat v Patel and Anor SC 142/21 the Supreme Court reiterated that, when a legal practitioner is blamed for a procedural default, an affidavit from that practitioner accepting responsibility is ordinarily required. 4 HH 550-26 HCH F 229/26 17. In Kabakaidze Mining Syndicate v Minister of Mines and Mining Development and Ors (337 of 2024) [2024] ZWHHC 337 (6 August 2024) CHINAMORA J stated as follows: “If indeed blame was attributable to the legal practitioners acting for the applicant, I find no reason why it was not found prudent to let the lawyers be candid with the court and admit their lack of diligence.” 18. In Timveous and Anor v Mwonzora and Ors HH 370-20, the High Court held that: “I refuse to be over fastidious. Courts should not demand mathematical exactitude from litigants when they present their case. Access to justice must be easy. Form should not be elevated above substance. Courts strive to resolve the real disputes between the parties and avoid getting choked by a thicket of technicalities, unless the alleged infraction complained of causes real prejudice.” 19. In the case of Susan Chipo Vera v Mitsui and Company Limited SC 32/2004, the late CHIDYAUSIKU CJ, allowed reinstatement in an instance in which he had acknowledged that the applicant had poor prospects of success on the merits. The late learned Chief Justice stated as follows: “While I agree with Mr Callow that the applicant’s prospects of success on the merits are poor it really is for the appeal court to have a final say on the issue. My view on the prospects of success is, of necessity, prima facie. If the explanation for the default were not plausible, I probably would have come to a different conclusion. The applicant deserves her day in court regardless of the merits of the case. This is particularly so taking into account that she is appealing against summary judgment, which, in effect deprives her the chance to defend herself in the court a quo.” Analysis 20. The superior courts’ inclination appears to be one of accommodating applications of this nature in which a party has not had their day in court. The late CHIDYAUSIKU CJ, although not convinced of the applicant’s prospects still allowed the applicant to be heard by another judge and get the opportunity to defend herself. 21. BERE J in Dube (supra) stated that he took his cue from these cases and declined to “use this as the exclusive and decisive consideration in this case.” I am similarly inclined. 22. Technical points related to form, especially where no prejudice has been pleaded or demonstrated are similar to preliminary points that are just being raised as a matter of fashion and this court views them as out of turn. Grabbing a judgment based on a technicality similarly brings no true justice. 23. Justice should be based on the substance of the dispute rather than procedural technicalities. 5 HH 550-26 HCH F 229/26 24. Rule 7 of the High Court Rules is there to facilitate positions that will be “ in the interests of justice.” Especially if the chances are high that the matter will remain unresolved or will certainly be back on the roll in some form in the quest for justice by one of the parties. 25. The parties to this application were married to each other and the dispute related to the rentals, their calculation of the rentals and the respondent’s entitlement need to be ventilated properly to arrive at a fair and equitable position. The current status quo will make it difficult for the parties to live in peace. The courts need to endeavour to attain this position or one close to it to for them in order to avoid the parties constantly coming back to the court. 26. The courts position of the courts is that when one of the explanations being proffered by an applicant seeking condonation or reinstatement is one related to their legal practitioner’s conduct, an affidavit is required to substantiate the argument. In this case, the applicant has presented an affidavit in compliance of that requirement. 27. Whilst the respondent argues that the affidavit is that of an assistant and not of the supervising lawyer, the court is satisfied that the law firm itself has offered an explanation instead of remaining silent. The law firm has taken some blame for the position that the applicant finds itself. 28. The principle that a legal practitioner’s affidavit should be provided is not a rigid rule excluding all other proof. Its purpose is to assist in covering a litigant’s unsupported accusation about facts peculiarly within the practitioner’s knowledge. 29. In Kabakaidze Mining Syndicate (supra) what the court pointed out was the fact that the lawyers must be candid. In this present case, I find that the lawyers have offered an explanation and they have been candid. 30. Courts generally do not favour for a litigant to be exposed due to conduct that they had no control over, that is why the phrase was coined, “ the court will not visit the sins of the legal practitioner on the client. ” This is the general although there are instances of serious and exceptional circumstances. I do not believe that this case falls within one of those cases of serious and exceptional circumstances warranting the client to suffer for something their erstwhile lawyer did or did not do. 31. In the result the application is granted. Final Order 6 HH 550-26 HCH F 229/26 1. The application for condonation for late filing and reinstatement of case number HCHF 2946/25 is hereby granted. 2. The application for condonation for late filing of certificate of service and Heads of Argument in HCHF 2946/25 is hereby granted. 3. The application for reinstatement of HCHF 2946/25 on the roll of matters is hereby granted and HCHF 2946/25 is hereby reinstated. 4. The applicant is to file its certificate of service within 2 days of the granting of this court order whilst the Heads of Argument are to be filed within 5 days of the granting of this court order. 5. Each party is to bear its own costs. PHILLIPS J:……………………………………………………. Machiridza Commercial Law Chambers, applicant’s legal practitioners Muhlekiwa Legal Practice, respondent’s legal practitioners