Chevhu Housing Co-operative Society Limited & 8 Others v Crest Breeders International (Private) Limited & Another

The first respondent held land known as Saturday Retreat Estate under Deed of Transfer 4035/86. A preliminary notice of intent to acquire the land for resettlement was published in September 2001, but this acquisition was not pursued. The land was later formally acquired by the Government of Zimbabwe for urban development on 20 March 2014. In the interim, the nine appellant cooperative societies occupied the land and allocated residential stands to their members, claiming the land had been allocated to them by government following the 2001 preliminary notice. On 13 January 2015, the Administrative Court granted a consent order confirming the compulsory acquisition and providing for compensation to the first respondent based on a settlement agreement dated 18 December 2014. The appellants became aware of this consent order in 2015 but only filed an application for rescission of judgment on 13 December 2019, almost five years later, without seeking condonation for the delay. They alleged the consent order was obtained in error and through fraud, claiming the first respondent was not the owner and had fraudulently misrepresented that it had agreements with occupiers.

• Whether condonation was required for the late filing of an application for rescission of judgment under Rule 449 of the High Court Rules
• Whether the appellants had locus standi to seek rescission of a consent order to which they were not party
• Whether fraud was proved in the obtaining of the consent order
• Whether the delay of almost five years in bringing the rescission application was fatal
• The legal effect of a preliminary acquisition notice under section 5 of the Land Acquisition Act that was not pursued

The appeal was dismissed with costs.

1. Rule 449 of the High Court Rules, while containing no express time limit, is an expeditious remedy that must be pursued rapidly upon becoming aware of the order sought to be rescinded. Inordinate delay in bringing such applications requires condonation with acceptable explanation for failure to act timeously. 2. The policy of the law requires legal certainty and finality in the relationship of parties after the lapse of a certain period of time, and courts may exercise their discretion to dismiss Rule 449 applications by reason of inordinate delay. 3. Land that was gazetted under section 5 of the Land Acquisition Act and listed in Schedule 7 of the former Constitution stands acquired by the State with full title by operation of law, regardless of whether the initial acquisition process was withdrawn or expired. 4. An appellate court will only interfere with factual findings of a lower court where the decision is irrational in the sense that no sensible court could have made it.

The Court observed that any party affected by a judgment, even when not cited in the proceedings, has locus standi to bring an application for rescission of judgment granted in its absence, though this does not mean such party will necessarily succeed on the merits. The Court noted that the lower court had erred in determining locus standi by conflating it with the merits of whether a case for rescission had been made out. The Court commented that the appellants appeared to be "disgruntled illegal land occupiers who are frustrated by the decision taken by the government to intervene and restore order and sanity in the allocation of land for urban settlement." The Court also noted that the distinction must be drawn between locus standi to seek rescission (a procedural issue) and the right to overturn a settlement agreement (a substantive issue going to merits).

This case is significant for clarifying the proper application of Rule 449 of the High Court Rules regarding rescission of judgment. It establishes that while Rule 449 contains no express time limit, it is not an open-ended remedy and must be pursued expeditiously. Applications brought after inordinate delay require condonation with acceptable explanation. The case reinforces the policy considerations of legal certainty and finality in litigation. It also confirms the principle from TBIC Investments that land gazetted for acquisition under the former Constitution vests in the State by operation of law, regardless of whether the initial acquisition process was pursued. The judgment provides important guidance on distinguishing between procedural standing to bring an application and substantive merit, and reaffirms the limited circumstances in which appellate courts will interfere with factual findings of lower courts.