Denny Tiwirai Marandure v Esther Marandure nee Solani

### Preamble
1
HH 844-18
HC 12437/16
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DENNY TIWIRAI MARANDURE

versus

ESTHER MARANDURE nee SOLANI

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 20 December 2018

UNOPPOSED DIVORCE MATTER

TTG Musarurwa, for the plaintiff

KT Tsvaira, for the defendant

TAGU J: On the 20th December 2018 I struck off the matter from the roll after hearing submissions from the parties’ counsels in the family motion court and giving an ex tempore judgment. The counsel for the plaintiff requested me to provide a full written judgment containing my reasons. The following are the reasons.

The plaintiff issued Summons for divorce and ancillary relief against the defendant. The defendant entered an appearance to defend. She duly filed her plea and a counter claim. The rules having been followed the matter was set down for a pre-trial conference before MANZUNZU J on the 29 November 2018. The defendant defaulted court and did not attend the pre-trial conference.

The counsel for the plaintiff applied to have the defendant’s plea and counter-claim to be struck out. The pre-trial conference Judge in granting the application made the following remarks-

“RESULT

Matter is referred to the un- opposed roll.

JUDGE’S COMMENTS:

Defendant in default at P.T.C. Round table conference not held in terms of Rule 182 because the 	defendant is not co-operative. Application to strike out defense, and dismiss counter claim 	granted and no order as to costs”

The plaintiff proceeded to set down the matter before me on the un-opposed roll. The defendant was duly served with the notice of set down. On the hearing of the application for divorce in Motion Court counsel for the defendant also appeared. He indicated that the defendant was opposing the granting of the divorce and ancillary reliefs and indicated that the defendant has since filed a notice of appeal with the Registrar of the Supreme Court against the decision of MANZUNZU J to strike out the defendant’s plea and counter claim. He produced a Notice of Appeal duly stamped with the Registrar of the Supreme Court.

Mr TTG Musarurwa, counsel for the applicant indicated that the defendant was barred and that the Notice of Appeal filed with the Supreme Court was fatally defective because the order by MANZUNZU J was an interlocutory order and that the defendant had not sought the leave of the court to file the Notice of Appeal.

Mr K T Tsvaira, counsel for the defendant argued that the order by MANZUNZU J was not an interlocutory order but a final order and that the defendant was not barred.

I indicated to the parties that while the Notice of Appeal now filed at the Supreme Court may or may not be fatally defective, the fact is that the decision by MANZUNZU J has been appealed against and the matter is now before the Supreme Court and for that reason I was unable to grant the relief sought by the applicant hence I struck off the matter from the roll and ordered the parties to argue their cases before the Supreme court.

For these reasons I removed the matter from the roll.

Pfigu Tanyanyiwa Gapare Attoneys, plaintiff’s legal practitioners

Mundia & Mudhara, defendant’s legal practitioners