Martha Nyathi, nee Nyarira, an ex-wife to the late Chemist
Nyathi, was contesting a decision by the Magistrate court sitting at Chiredzi
dismissing her application for rescission of a default judgment granted in
2009.
She argued that the divorce granted by the then Chiredzi
Magistrate Diana Masiyiwa was fraudulently obtained, and would prejudice her in
the sharing of the late Nyathi’s property.
In her submissions, Martha disowned the signature on the
notice of appearance to defend, and challenged the respondents to prove
otherwise.
She also challenged the respondents to produce proof of
service of the summons on her.
In her ruling, High Court judge, Justice Sunsley Zisengwe
dismissed her application chastising her for waging a legal battle against the
dead.
“One might be tempted to say that the appellant with the
advantage of life is practically waging a battle against a dead person,”
Zisengwe said.
“She is attempting to prosecute a cause against the
deceased posthumously where she failed to prosecute during his lifetime.
“We hold the firm view that the court a quo did not err in
exercising its discretion in dismissing the application for the rescission of
the default judgment.
“Accordingly the appeal is hereby dismissed with costs.”
Zisengwe added: “If this rather usual application for
rescission of a default judgment sought were to be granted, the appellant would
obtain an untenable advantage not only over the deceased who is now unavailable
to defend this present application and to prosecute the main claim to its
logical conclusion.
“But also over the second respondent who was not party to
the original litigation.
“She has now to scramble around to pick up the pieces of
what must have happened between the appellant and the deceased in an attempt to
ward off the appellant’s legal onslaught.”
Nyarira told the court that she only became aware of her
divorce after Nyathi died in 2021.
The couple had been staying apart since 2002 when Martha
left Nyathi in Chiredzi to stay at a family farm in Mazoe.
Martha says she only knew that Nyathi had divorced her when
her son, Michael Nyathi, went to register his father’s estate with the Master
of the High Court in Harare.
The beneficiary of the estate is Getrude Nyathi, the
deceased’s wife. Standard
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