Apostolic Faith Mission of Zimbabwe v Apostolic Faith Mission in Zimbabwe and Others

The applicant, Apostolic Faith Mission of Zimbabwe, sought rescission of a consent judgment granted on 18 October 2024 in Case No. HCH 1515/23 before KATIYO J. In that matter, the first respondent (Apostolic Faith Mission in Zimbabwe) obtained summary judgment for eviction of the second and third respondents (Edward Ward and Yafeti Ward) from stand 35 Jennifer Way, Waterfalls, Harare. The applicant was not a party to those proceedings but claimed to be affected by the eviction order. The applicant and first respondent were previously one ecclesiastical organization that split following a leadership dispute resolved by the Supreme Court in SC 67/21 in May 2021. The applicant was formed by disgruntled members of the first respondent after the split. The second respondent was a former employee of the first respondent who had been allocated the property as an employment benefit. The applicant claimed it had been in occupation of the main house for close to four years while the second respondent occupied a cottage, and that the eviction order affected it despite not being cited. The applicant also alleged the property vested in trustees rather than the first respondent.

• Whether the consent judgment of 18 October 2024 was erroneously sought or granted in terms of rule 29(1)(a) of the High Court Rules, 2021
• Whether the applicant was in occupation of the property in its own right at the time the consent order was granted
• Whether facts existed which, if known to the court, would have precluded it from granting the eviction order
• Whether the first respondent had locus standi to seek eviction as the registered owner of the property
• Whether costs on a legal practitioner and client scale were warranted

The application for rescission of judgment was dismissed with costs on a legal practitioner and client scale.

For rescission under rule 29(1)(a), an applicant must prove facts which, if known to the court at the time, would have precluded it from granting the order. Bald assertions without evidentiary support are insufficient to discharge this onus. A juristic entity formed by members who split from another organization does not automatically acquire occupation rights or property interests of the original entity merely because its members were previously members of that organization. The registered owner of property as evidenced by a title deed has locus standi to bring an eviction action based on rei vindicatio. An application stands or falls on the averments in the founding affidavit, and parties cannot recreate their case in argument or supplementary pleadings.

The court observed that rule 29(1) is an exception to the general rule that once a court pronounces final judgment it becomes functus officio and cannot reopen the matter. The remedy should not be abused to undermine the principle of finality to litigation. Courts must be vigilant against litigants who seek to abuse this exceptional procedure. The court noted that litigants must take judicial pronouncements seriously and avoid pursuing unworthy causes or frivolities that waste the court's time and resources. The court remarked that the shifts and inconsistencies in the applicant's case constituted a "classic display of mala fides or dishonesty," citing Alliance Insurance v Imperial Plastics. The court emphasized that parties cannot approbate and reprobate - they cannot blow hot and cold on the same issue.

This case clarifies the application of rule 29(1)(a) of the High Court Rules, 2021 concerning rescission of judgments erroneously sought or granted. It emphasizes that applicants must provide substantive evidence of facts that would have precluded the court from granting the original order, not mere bald assertions. The judgment reinforces the principle from Munyimi v Tauro that once a juristic entity is formed following a split from another organization, it does not automatically inherit occupation rights or property of the original entity. The case demonstrates that registered title in the Deeds Registry constitutes prima facie proof of ownership sufficient to ground an eviction action based on rei vindicatio. It also serves as a warning against abuse of rescission procedures to delay enforcement of valid court orders, with courts empowered to impose punitive costs in cases of frivolous and vexatious applications. The judgment underscores that members who break away from a universitas to form a new entity do not carry with them the property rights of the original organization.