IN THE HIGH COURT OF ZIMBABWE CASE NO: HC …...

/23
HELD AT BULAWAYO Xref HC127/21

In the matter between:

NKANYEZIYETHU MKOSANA (nee MALUNGA) APPLICANT

AND

LUCKMORE MKOSANA RESPONDENT

CHAMBER APPLICATION FOR DIRECTIONS IN TERMS OF RULE 46(1)

OF THE HIGH COURT RULES, 2021

NCUBE ATTORNEYS
Applicant’s Legal Practitioners
12 Park Road
Suburbs
BULAWAYO
IN THE HIGH COURT OF ZIMBABWE CASE NO: HC ….../23
HELD AT BULAWAYO Xref HC127/21

In the matter between:

NKANYEZIYETHU MKOSANA (nee MALUNGA) APPLICANT

AND

LUCKMORE MKOSANA RESPONDENT

INDEX

NO DOCUMENT ANNEXURE PAGE

1. Chamber Application 1

2. Founding Affidavit of NKANYEZIYETHU

MKOSANA (nee MALUNGA) 2–3

3. Summons in Matrimonial Action ‘A’ 5–8

4. Letter requesting for roundtable ‘B1’ 9

4. Proof of Service of Letter ‘B2’ 10

12. Proof of service by email ‘B3’ 11

13. Draft Order 12 -13

IN THE HIGH COURT OF ZIMBABWE CASE NO: HC ….../23
HELD AT BULAWAYO Xref HC127/21

In the matter between:

NKANYEZIYETHU MKOSANA (nee MALUNGA) APPLICANT

AND

LUCKMORE MKOSANA RESPONDENT

CHAMBER APPLICATION FOR DIRECTIONS

TAKE NOTICE that Applicant herein seeks leave of this Honourable Court to serve
summons on the Respondent on grounds that:

(i) respondent, in spite of having instituted divorce proceedings against applicant, has
elected not to pursue same to finality and has neglected/refused to have the parties
do a roundtable conference amongst themselves as is required by the rules. The
proceedings are now in a limbo and applicant needs directions as to how to
progress the matter.

FURTHER TAKE NOTICE that the Affidavit of NKANYEZIYETHU MKOSANA

(nee MALUNGA) and supporting documents will be used in support of this Application.

DATED AT BULAWAYO THIS DAY OF DECEMBER 2023.

------------------------
NCUBE ATTORNEYS
Plaintiff’s Legal Practitioners
12A Park Road
Suburbs
BULAWAYO (Mr. M Ncube/lk)

TO: THE ASSISTANT REGISTRAR

High Court of Zimbabwe
BULAWAYO
TO: LUCKMORE MKOSANA
Respondent herein
110 Customs Road,
PLUMTREE
IN THE HIGH COURT OF ZIMBABWE CASE NO: HC ….../23
HELD AT BULAWAYO Xref HC127/21

In the matter between:

NKANYEZIYETHU MKOSANA (nee MALUNGA) APPLICANT

AND

LUCKMORE MKOSANA RESPONDENT

FOUNDING AFFIDAVIT OF NKANYEZIYETHU MKOSANA (nee MALUNGA)

I, NKANYEZIYETHU MKOSANA (nee MALUNGA), do hereby make oath and state

that:

1.1 I am the plaintiff in the main matter and applicant herein and as such authorised to
depose of this affidavit on. My address of service is care of my undersigned legal
practitioners of record NCUBE ATTORNEYS, 12A Park Road, Suburbs,
Bulawayo.

1.2 I am the defendant in a matter pending before this Honourable Court under cover
of case number HC127/21 where respondent (plaintiff therein) sued out a
summons for a divorce decree against me, see annexure ‘A’ being the summons.

1.3. Most pleadings were filed by the parties save for a replication by the respondent
(as a plaintiff) and I am advised that in terms of rule 40(2) of this Honourable
Court’s rules that if within 12 days of receipt of a defendant’s plea, plaintiff does
not deliver a replication in terms of rule 40(1), pleadings shall be deemed closed.

1.4. I thus proceeded to file a discovery affidavit and schedule, pre-trial conference
memorandum and a synopsis of evidence. Respondent also made discovery but
did not file his pre-trial conference memorandum and synopsis of evidence.

2. Through my attorneys of record, I requested respondent to agree to a round table

conference for the divorce matter to be progressed but he did not respondent,
despite service at his given address and through his email, see annexures marked
‘B1,’ ‘B2’ and ‘B3.’

3. I tried to apply to this Honourable Court for a pre-trial conference before a judge
so as to progress the divorce matter as it has taken too long to finalise and I want
this marriage terminated as of yesterday so I can move on with my life.
4. The Registrar of this Honourable Court responded in the negative pointing on
things that had not been done, see annexure marked ‘C.’

5. I filed the certificate of service of the amendment which, basically, was the
document that was required from me.

6. Respondent appears disinterested in progressing this matter despite the fact that it
is him that commenced the divorce proceedings.

7. I am advised that in terms of the Rules of this Honourable Court, particularly Rule
46(10)(c) the court, in using its discretion, may make such orders or give such
directions as the court considers most conducive to the speedy and inexpensive
determination of matters.

8. I submit that the directions that I seek herein are most conducive to the speedy
and inexpensive determination of matters.

9. I seek directions from this Honourable Court, subject to the court’s agreement,
directing respondent to agree with me on dates for a roundtable failing which his
opposition to my notice of amendment shall stand struck out and I shall be
allowed to set down the matter under HC127/21 on the unopposed roll without
notice to respondent.

10. I submit that to do so will dispose of the matter that respondent himself
commenced in a manner most conducive to the speedy and inexpensive
determination of the divorce matter under HC127/21.

11. I therefore apply directions as set out in paragraph 9 above.

WHEREFORE, I pray an order in terms of the draft.

SWORN TO AT BULAWAYO THIS … DAY OF DECEMBER 2023

BY ME:
------------------------------------
NKANYEZIYETHU MKOSANA (nee MALUNGA)

BEFORE ME:
--------------------------------
COMMISSIONER OF OATHS
IN THE HIGH COURT OF ZIMBABWE CASE NO: HC ….../23
HELD AT BULAWAYO Xref HC127/21

In the matter between:

NKANYEZIYETHU MKOSANA (nee MALUNGA) APPLICANT

AND

LUCKMORE MKOSANA RESPONDENT

DRAFT ORDER

BULAWAYO: THIS DAY OF 2023

BEFORE THE HONOURABLE MR/MRS/MS JUSTICE ……………………………

IN CHAMBERS:

WHEREUPON after reading documents filed of record

IT IS HEREBYORDERED THAT:

1. The following directions are issued against the respondent:

(i) Within seven (7) days following the issuance and service of this order
upon the respondent, he shall, file and serve email to applicant and her
legal practitioners – at matshobanancube@gmail.com, 3 different
proposed dates for the holding of a round-table conference between the
parties.
(ii) File with the registrar of this Honourable Court the documents
required of him and set out in annexure ‘C.’
(iii) Should respondent fail to comply with matters stated in para 1(i)
above, then his objection to the amendment shall stand struck out and
the applicant, defendant in the main action, be and is hereby authorised
to set down the matter under HC127/21 on the unopposed roll without
notice to respondent for finalization of the matrimonial matter in terms
of the terms proposed by the applicant in her amended papers filed of
record.

2. No order as to costs.
 -----------------
BY THE JUDGE

------------------------------------
BY THE ASSISTANT REGISTRAR