THE Supreme Court of Zimbabwe has set aside proceedings in a bitter divorce-related custody dispute after finding that both parties and the High Court had wrongly treated a private agreement as a valid court order.
The judgment, delivered by Supreme Court judge Justice Nicholas Mathonsi with Justices Samuel Kudya and Joseph Mafusire concurring, arose from an appeal in the matter between Dhiren Shantilal Govan and Reena Narendra Govan.
At the centre of the dispute was a so-called “interim consent order” signed by the parties’ legal representatives in November 2024, regulating custody and access arrangements for their nine-year-old daughter while divorce proceedings were repeatedly postponed.
However, the Supreme Court recently found that no judge had ever issued or adopted the document as a formal court order.
Justice Mathonsi described the situation as “a strain to the mind,” criticising the prolonged litigation and repeated postponements of a divorce trial that has now stretched over several years.
“The parties have chosen to repeatedly postpone the commencement of the divorce trial, a trial in which the only issue is custody of the child,” he said.
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The court noted that despite being labelled a consent order, the document remained merely a private agreement between the parties.
“It is not a court order but remains the signed agreement of the parties,” the court held.
The respondent approached the High Court seeking to set aside the document under Rule 21(2) of the High Court Rules, arguing that it was signed under pressure and was no longer in the child’s best interests.
The High Court granted the application and set aside the arrangement, allowing the divorce trial to proceed.
But the Supreme Court overturned that decision entirely, finding that the legal foundation of the application was fundamentally flawed.
“The respondent could not lawfully approach the court a quo for a remedy in terms of r21(2) to set aside a non-existent consent order,” the court ruled.
The judges emphasised that Rule 21(2) applies only where a judge has entered a consent judgment, which had not happened in this case.
“There is no doubt that 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,” the court said.
The court further criticised the High Court for failing to properly interrogate the nature of the document before it.
“The entire proceedings before the court a quo were irregular,” Justice Mathonsi stated.
“Nothing valid could come out of them.”
On that basis, the Supreme Court invoked its powers under section 25 of the Supreme Court Act to set aside the proceedings as a nullity.
The court stressed that neither party nor the lower court had identified the procedural defect during the litigation.
“None of the parties picked up the anomaly, which was only picked up by the court when considering judgment,” the judgment noted.
In conclusion, the Supreme Court struck the matter off the roll with no order as to costs and set aside the High Court proceedings in their entirety.
“The entire proceedings ought to be set aside as a nullity,” the court ruled, bringing an abrupt procedural end to the dispute while leaving the underlying custody and divorce issues unresolved.