HARARE – The High Court has dismissed an application by businessman Wicknell Munodaani Chivayo seeking to throw out claims filed against him by ex-wife Sonja Louise Madzikanda for division of assets, dissolution of marriage, spousal maintenance and a declaration of the existence and dissolution of a civil partnership.

In a ruling handed down on Thursday, Justice Fatima Maxwell found that Chivayo’s application under rule 31(1) of the High Court rules amounted to “a veiled attempt to get the assistance of the court to defeat an extant order by consent.”

The dispute traces back to March 4, 2026, when Chivayo filed an urgent chamber application, seeking access to the minor children born to the parties pending resolution of the main matter – divorce proceedings initiated by Madzikanda. That application resulted in a consent order granted by Justice Amy Tsanga on April 2, 2026.

Beyond settling access arrangements for the children, the order recorded that the parties had agreed on the forum for resolving their dispute, with paragraph 1 stating: “The question of the proprietary consequences of the termination of the parties’ union shall be adjudicated under case number HCHF 62/2026 (divorce matter).”

Justice Maxwell found that by filing the present application on April 27, 2026, seeking dismissal of the claims relating to asset division, divorce, maintenance and the civil partnership declaration, Chivayo was attempting “to resile from the agreement that the proprietary consequences of the termination of the parties union shall be adjudicated under case number HCHF 62/2026.”

The judge held that the application “seeks to achieve a result that defeats the agreement reached by the parties resulting in the order by consent issued by Honourable Tsanga J,” adding that “the effect of that order is that the parties must litigate under HCHF 62/26 the proprietary issues between them.”

On the binding nature of court orders, Justice Maxwell stated: “It is trite that once a court has made an order, it binds all and sundry concerned. Everyone is bound by the court order until it is lawfully altered or discharged by a court of competent jurisdiction or statute.”

The judge was critical of Chivayo’s failure to disclose the existence of the consent order in his application, remarking: “Applicant did not address or refer to the existence of the order in HCHF 892/26. I take it as an attempt to pull wool over the court’s eyes.”

Justice Maxwell invoked the legal principle against inconsistent positions, holding that “a position that is not consistent with the adjudication of the proprietary issues between the parties under case number HCHF 62/2026 cannot be supposed by the court,” and that “no person can be allowed to take up two positions that are inconsistent with one another, commonly expressed as to blow hot and cold, to approbate and reprobate.”

Beyond the consent-order point, the judge found rule 31(1) itself inapplicable to the case. While the rule allows a defendant who has filed a plea to apply for dismissal of an action on the grounds that it is frivolous or vexatious, Justice Maxwell held that Chivayo “compromised his right by consenting that the proprietary issues be determined in case number HCHF 62/26.”

He further reasoned that the rule is designed for cases where “the whole action is bound to be dismissed by reason of being frivolous or vexatious,” and is not intended for situations “in which part of the claim is valid.”

On the test for absolution from the instance, the judge noted that a court “must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action.”

Justice Maxwell pointed out that Chivayo was “not challenging the validity of the claims for custody and maintenance,” and noted that the parties held differing views on the applicability of the Marriages Act [Chapter 5:17] to their circumstances, with Madzikanda “even seeking recourse from the constitution.”

She concluded: “I am not persuaded that the summons can be termed totally hopeless to warrant dismissal.”

The application was dismissed with costs.

Advocate Sylvester Hashiti and Edley Mubaiwa appeared for Chivayo, instructed by Mpofu Mazhata Chambers, while Advocate Regina Mabwe appeared for Madzikanda, instructed by Mahuni Gidiri Law Chambers.

Madzikanda recently took to social media claiming that a court had ruled that she was never married to Chivayo and dismissed her divorce application, but even her lawyers say they do not know where she got tha information from as no such judgement exists.

She is claiming $25 million as part of her divorce settlement. Chivayo’s lawyers insist the couple, who have two young children together, were never married.