Chiwenga v Mubaiwa-Chiwenga and Another (804 of 2022) [2022] ZWHHC 804 (16 November 2022)

1 HH 804-22 HC 9837/21 CONSTANTINO GUVHEYA DOMINIC NYIKADZINO CHIWENGA versus MARRY MUBAIWA-CHIWENGA and CHAWASARIRA TRUST HIGH COURT OF ZIMBABWE TAGU J HARARE, 4 & 16 November 2022 Civil Trial – Divorce G T Mharapara with L Uriri, for the plaintiff G Mtetwa, for the defendants TAGU J: This is a trial cause. This matter has been set down for several times and the matter was postponed several times because the first defendant was then unwell. Meanwhile several Court applications were made by the parties. At one time the plaintiff was not available having gone to attend a national event where a national hero was being buried at the National Heroes Acre. At the last sitting Ms B Mutetwa indicated that there was an application for joinder of Chawasarira Trust. She said the joined defendant need to be served with pleadings and for the same to respond. She said the best way was for her to file heads of argument by Wednesday the 29th June 2022. Advocate Uriri concurred, although he was of the view that the joinder had no effect on the case particularly because the Trustees had not been cited. In short he was opposed to the idea of the joinder of Chawasarira Trust as the second defendant. He proposed to file his heads of argument by the 1st of July 2022. After hearing the parties, I postponed the matter to the 1st of July 2022 awaiting the filing of heads of argument, thereafter I was to make a determination on whether or not Chawasarira Trust should be joined as a second defendant. HH 804-22 HC 9837/21 However, on perusing the file to find if heads of arguments have been filed, I noted to my surprise that the first defendant had filed her heads of argument exactly on 29 June 2022 as she had proposed. The plaintiff did not file his heads of argument as agreed with the parties. Another shocker was that the second defendant had in fact been joined as a second defendant as far back as 9th day of February 2022 by an order granted by MUSITHU J under case No. 7059/21. This fact had not been brought to my attention. As a result there is no need for me to make a further determination on the issue of joinder. However, my concern is that this matter was set down as far back as the 27th of January 2022 and no progress has been made. I cannot therefore keep on holding onto the file. Also disturbing is the fact that since 9th February the second defendant has not filed its appearance to defend as well as other pleadings despite being aware that it had been joined as a second defendant in terms of the Rules of this Honourable Court. It was supposed to have done so in terms of the rules of this Honourable Court. The only way to go about this problem is to remove the matter from the roll and parties to be given guide lines. IT IS OREDERED THAT: 1. The matter is removed from the roll. 2. It is consequently ordered that the second defendant shall file and serve its Notice of Appearance to defend and its plea within 10 days of this order. 3. The plaintiff is ordered to file his replication within 5 days from the date of service on him of the second defendant’s plea or at least within time lines allowed by the Rules. 4. Applicant shall file supplementary summary of evidence if need be, within the time lines allowed by the Rules. 5. The Registrar be and is hereby directed to set this matter down for hearing on any available date, after new pleadings have been closed. 6. There is no order as to costs. TAGU J:……………………………… Messrs Manase & Manase, plaintiff’s legal practitioners Mtetwa & Nyambirai, defendants’ legal practitioners