Judgment record
Tonderai Irvine Tipere Kasu v Sandra Wadzanayi Kasu (Nee Manyonga) and First Mutual Health (Pvt) Ltd and Stanford Sisya
HH 78-21HH 78-212021
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HH 78-21
HC 6938/20
TONDERAI IRVINE TIPERE KASU
versus
SANDRA WADZANAYI KASU (NEE MANYONGA)
and
FIRST MUTUAL HEALTH (PVT) LTD
and
STANFORD SISYA
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 14 December 2020 & 1 March 2021
URGENT CHAMBER APPLICATION
E.T Nhachi, for the applicant
B. Diza, for the 1st respondent
J Mutonono, for the 2nd and 3rd respondents
CHIRAWU-MUGOMBA J: This matter was placed before me as an urgent
application in which the applicant sought the following relief:-
TERMS OF FINAL ORDER SOUGHT
1. The 1st respondent is in contempt of court for refusing for the applicant (sic) to
provide medical aid for the two minor children namely; Sean Tinashe Kasu (born on
31 January 2011) and David Panashe Kasu (born 18 March 2013) and for withholding
consent for the minor children to be migrated from her medical aid scheme to the
applicant’s medical aid scheme.
2. The 1st respondent to be committed to prison for a three months sentence for contempt
of court, which sentence shall be suspended on condition that she does not hinder, bar
or prevent the applicant from providing medical aid to the said minor children.
3. The 1st respondent be and is hereby ordered to sign all necessary documents and to
give consent when required in relation to the provision of medical aid to the above
mentioned minor children by the applicant.
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4. That the applicant be and is hereby awarded custody of the two minor children
namely; Sean Tinashe Kasu (born on 31 January 2011) and David Panashe Kasu
(born on 18 March 2013) pending finalization of HC 1411/20.
5. That 1st respondent should pay costs of suit on a higher scale.
INTERIM RELIEF GRANTED
1. The 1st, 2nd and 3rd respondent be and is hereby ordered to migrate the two minor
children namely Sean Tinashe Kasu ( born on 31 January 2011 ) and David Panashe
Kasu (born on 18 March 2013) from the 1 st respondent’s medical aid scheme to the
applicant’s medical aid scheme immediately.
2. That the applicant be and is hereby awarded interim custody of the two minor children
namely; Sean Tinashe Kasu ( born on 31 January 2011 ) and David Panashe Kasu
(born on 18 March 2013) from the 1 st respondent’s medical aid scheme to the
applicant’s medical aid scheme immediately.
3. 1st respondent to pay costs of suit.
SERVICE OF PROVISIONAL ORDER
Leave be hereby (sic) granted for the applicant’s legal practitioner to serve this order
on 1st and 2nd respondents.
On the 25th of November 2020, I endorsed that the matter was not urgent and the
applicant’s legal practitioners as they are entitled to requested for audience. At the end of the
hearing of the 14th of December 2020, I dismissed the application with costs. I have been
requested to give reasons. These are they.
The background to the application is as follows. The applicant and the 1 st respondent
are former husband and wife. They were divorced on the 1 st of March 2018 in case number
HC 859/17. The 1st respondent was awarded custody of the minor children with the applicant
granted access. The applicant was ordered to pay medical aid as well for the minor children
which is the major bone of contention in this matter. The applicant averred that the 1 st
respondent was in contempt of HC 859/17 in that she was making it impossible for him to
pay medical aid for the minor children. The applicant had put the children on PSMAS
medical aid but he had been offered at his work place as part of his conditions of service,
enrolment on the 2nd respondent’s medical aid. This scheme is called Sapphire which is the
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highest package thus a high level of benefits. Applicant instructed the H.R department to
apply for the sapphire medical aid with an effective date of the 1 st of October 2020. Upon
processing, the applicant through a query raised by the 2 nd respondent discovered that the
children were already on the amber scheme through the 1 st respondent. This scheme is lower
than the sapphire package. The 1st respondent did not seek the consent of the applicant and
thus the children were on two medical aid packages. The 1 st respondent was withholding her
consent to have the children migrated to the better sapphire medical aid package and had
made demands that other issues such as maintenance needed to be relooked at first.
The applicant’s affidavit contained many other allegations of inappropriate
behaviour on the part of the 1st respondent. He averred that he had made an application for
variation of custody in HC 1411/20 which was pending before the court. Ultimately he was
seeking that the 1st respondent be compelled to give consent to migrate the children to
sapphire medical aid and also interim custody.
At the hearing Mr Diza raised the following preliminary points:-
1. The matter is lis pendens, the applicant having filed a similar application in HC
6597/20. No notice of withdrawal had been filed in that mater. It was struck off the
roll on the 16th of November 2020 and in terms of practice direction number 3/2013
when a matter has been struck off the roll for failure to abide by the rules, a litigant
has 30 days within to rectify the anomaly. If a litigant has failed, the matter will be
deemed as abandoned. A period of 30 days has not lapsed and HC 6597/20 was still
active and the applicant cannot purport to bring a similar application seeking the same
relief.
2. The applicant seeks interim custody of the minor children. The interim relief that the
applicant was seeking is not competent since he had filed HC 1411/20 being an
application for custody. That matter had progressed with heads of argument having
been filed. The matter was awaiting a set down date. The application therefore ought
to fail.
3. Paragraph 1 of the interim relief seeks to compel the 1 st respondent to migrate the
minor children from the 1st respondent’s medical aid scheme to that of the applicant.
That is in effect seeking a variation of the judgment of the court in the divorce matter.
After a fully blown trial, the 1st respondent was awarded custody. She is the one with
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the unfettered right of deciding which medical aid scheme the children ought to
subscribe to. The applicant’s role is to merely provide the subscriptions. The applicant
by seeking that the children be moved to his medical aid scheme is in essence seeking
variation of a court order on an urgent basis. While the best interests of the minor
children are paramount, the applicant has not shown how the interests of the children
are being interfered with to warrant the court’s intervention.
4. The applicant is seeking final relief on an urgent basis. Once the migration is done it
effectively means that it will be a final order.
He further submitted that if the applicant is so concerned about the medical aid
scheme that the children are under, he can offer to pay the difference so that the extant order
is not interfered with. He does not need to approach the court for that. There is also a
proviso to practice direction 3/2013 that after the lapsing of the 30 day period, if a party is
still interested in pursuing the application, they may approach a judge on good cause shown
to have the matter reinstated which effectively means that prior to the lapsing of the 30 days,
the matter is still alive. An applicant is at liberty to pursue the matter or withdraw it.
Mr Mutonono submitted that the 2nd and 3rd respondents were not privy to the
circumstances raised by Mr Diza in the first two preliminary points. Nonetheless, they
associated with the 3rd preliminary point and hence they prayed for the dismissal of the
application.
Mr Nhachi made the following submissions. Case number HC 6597/20 was not
formally withdrawn because the judge before whom it was placed indicated that that there
was no application before him since it was not signed in terms of the rules. The Supreme
Court has decided that once a matter is struck off the roll, there is no longer a matter before
the court. The rules do not say that when a matter is truck off the roll, it is still pending before
the courts. The application itself had not been signed and this is different from a matter that
has other defects that can be addressed through an amendment. In casu, the applicant simply
filed a fresh application. This was because there was nothing else before the court. The rules
do not say that if a fresh application cannot be made where a matter is struck off from the
roll, it does not bar a fresh application to be made. By filing a fresh application before the 30
day lapse, the applicant indicated that he had abandoned the earlier application.
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He further submitted that while there was a pending application for custody, what the
applicant was seeking was an interim order for custody. The court is the upper guardian of
all minor children and there is an element of danger and harm to the children if interim
custody is not awarded to the applicant in this matter. The applicant was not seeking a final
order of custody since that matter was still pending. If the applicant is granted the interim
relief and he does not pursue it, the 1st respondent can still apply for dismissal for want of
prosecution. Although the divorce order does not specify which medical aid the children
should be on, the applicant seeks to upgrade it in view of the prevailing circumstances. A
medical emergency is unpredictable and hence the application is urgent. There is a reasonable
apprehension of harm. If a medical emergency does arise, the children need to be covered.
The applicant also seeks interim custody so that he can change schools for the
children since they are being prejudiced at their current school.
It is my considered view that the application is not urgent. As aptly stated by BHUNU
J (as he then was),
“In the ordinary run of things court cases must be heard strictly on a first come first served
basis. It is only in exceptional circumstances that a party should be allowed to jump the queue
depending on the exigencies and merits of each case the onus of which is on the applicant to
establish. An urgent application is an extraordinary remedy where a party seeks to gain an
advantage over other litigants by jumping the queue. That indulgency can only be granted by
a judge after considering all the relevant factors and concluding that the matter cannot wait.” 1
The test for urgency as enunciated in Kuvarega v Registrar General and Another
1998 (1) ZLR 188 still holds true.
GOWORA J (as she then was) stated in in Triple C Pigs & Anor v Commissioner-General,
ZRA 2007 (1) 27 at 30G-31D that:-
“Naturally every litigant appearing before these courts wishes to have their matter heard on an
urgent basis, because the longer it takes to obtain relief, the more it seems that justice is being
delayed and thus denied. Equally, the courts in order to ensure delivery of justice, would
endeavour to hear matter as soon as is reasonably practicable. This is not always possible,
however, and in order to give effect to the intention of the courts to dispense justice fairly, a
distinction is necessarily made between those matters that ought to be heard urgently and
those to which some delay would not cause harm which would not be compensated by the
relief eventually granted to such litigant. As courts, we therefore have to consider, in the
exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent
has shown the infringement or violation of some legitimate interest, and whether or not the
1
Per Bhunu J in Condurago Investments (pvt)Ltd T/A Mbada Diamonds vs. Mutual Finance (pvt) Ltd
HH-630-15
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HC 6938/20
infringement of such interest, if not redressed immediately, would not be the cause of harm to
the litigant which any relief in the future would render brutum fulmen.”
In Nixris Investments (Pvt) Ltd HH-18-16 the requirements for urgency were broken
down as follows:-
(a) The matter cannot wait at the time when the need to act arises.
(b) Irreparable prejudice will result, if the matter is not dealt with straight away without
delay.
(c) There is prima facie evidence that the applicant treated the matter as urgent.
(d) Applicant gives a sensible, rational and realistic explanation for any delay in taking
action.
(e) There is no satisfactory alternative remedy.
MAWADZE J in Denenga and anor v Ecobank and others HH-177-14 cast them as
follows:-
The general thread which runs through all these cases is that a matter is urgent if,
(a) It cannot wait the observance of the normal procedural and time frames set by the rules of
the court in ordinary applications as to do so would render negatively the relief sought.
(b) There is no other alternative remedy.
(c) The applicant treated the matter as urgent by acting timeously and if there is a delay to
give good or a sufficient reason for such a delay.
(d) The relief sought should be of an interim nature and proper at law.
The application fails to meet the test for urgency. The court could not discern any
prejudice that will result if the matter is not dealt with straight away. There is a pending
application for custody which in my view ought to be one for variation in terms of s9 of the
Matrimonial Causes Act [Chapter 5:13]. What is before the court reads more like a
complaints list than actual legal facts and that alone does not establish urgency. Ordinarily
once a matter is found not to be urgent, it must be removed from the roll of urgent matters. In
casu, the court considered other preliminary issues raised by Mr Diza which if successful
would have the effect of disposing of the matter.
The Supreme Court in Bindura Municipality vs Mugogo, SC -32-15 had occasion to
interpret the meaning of ‘struck off’ as per practice direction 3/13 as follows per GUVAVA
JA:-
INTERPRETATION OF PRACTICE DIRECTION 3/13
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It was the applicant’s contention that the application was being brought in terms of
paragraph 5 of Practice Direction 3 of 2013. In my view it is necessary for the sake of
completeness that I cite the relevant portion of the practice direction which relates to matters
which have been struck off the roll:
“Struck off the roll
3. The term shall be used to effectively dispose of matters which are fatally defective
and should not have been enrolled in that form in the first place.
4. In accordance with the decision in Matanhire v BP & Shell Marketing Services
( Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court
issues an order that a matter is struck off the roll, the effect is that such a matter is no
longer before the Court.
5. Where a matter has been struck off the roll for failure by a party to abide by the
Rules of the Court, the party will have thirty (30) days within which to rectify the
defect, failing which the matter will be deemed to have been abandoned.
Provided that a judge may on application and for good cause shown, reinstate the
matter, on such terms as he deems fit.” (Underlining is my own)
In my view, it is only after the lapse of the 30 day period that a matter can be deemed
to have been abandoned. It cannot be correct as submitted by Mr Nhachi that the filing of
fresh application within the 30 day period was an indication that the applicant had abandoned
HC 6597/20. The only ‘abandonment’ within the 30 day period would have been to file a
notice of withdrawal. The matter therefore fell squarely in the realm of lis pendens.
I also agree with the submission by Mr Diza that the relief sought by the applicant is
final in nature but is disguised as interim relief. Awarding the applicant interim relief will
mean that the applicant will have custody and place himself in the shoes of the 1 st respondent
who was awarded custody in HC 859/17. This will mean that through an urgent application,
the court would already have decided on the pending application for custody by the applicant.
It will also mean that the applicant is seeking a variation of an extant court order which can
only be done in terms of s9 of the Matrimonial Causes Act where on good cause shown a
court can vary an order made in terms of s7. The applicant has therefore failed to show the
legal basis upon which he is seeking final relief in the form of an interim order.
The court engaged with the legal practitioners on the joining of the 2 nd and 3rd
respondents. Mr Nhachi submitted that the 2nd respondent was cited because it is the medical
aid under which the applicant and the 1 st respondent and the children are under. It is only the
2nd respondent who is able to migrate the children and put them under the applicant’s scheme.
The 2nd and 3rd respondents will be able to migrate the children to the medical aid scheme of
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the applicant even if the 1st respondent fails to do so. The 3 rd respondent is the person that the
applicant held a meeting with and he is a decision maker. There had been a period of more
than 20 days before a response was done on the issues raised by the applicant. Therefore
there was need to cite them. If an order of costs is to be made, it should not be made against
the applicant. Mr Mutonono submitted that it was not necessary for the applicant to cite the
2nd and 3rd respondents. If an order was made for the migration the two respondents would
have complied without necessarily having to be joined. On costs, he submitted that since the
applicant had unnecessarily dragged the 2 nd and 3rd applicants and had put them out of pocket,
the application should be dismissed with costs. On the citing of the 2 nd and 3rd respondent, the
rules make it clear that an application shall not be defective based on joinder or non-joinder
of any party. It is my considered view that it was not necessary to join the 2 nd and 3rd
respondents in the application which has its roots in the Matrimonial Causes Act. They would
still have complied without having to be cited. They incurred legal costs unnecessarily
because they were dragged to court. The applicant should therefore pay the costs.
DISPOSITION
It is ordered that:-
1. The application be and is hereby dismissed with costs
Mapendere and Partners, applicant’s legal practitioners
Mhishi Nkomo Legal Practice, 1st respondent’s legal practitioners
Sheshe and Mutonono, 2nd & 3rd respondents’ legal practitioners