Collen Dhlamini and Others v Herbert Ncube and Others

Eight applicants were settled on Hilda's Kraal Farm in Nyamandlovu, Matabeleland North Province following the government's land reform programme and gazetting of the farm in 2001. The farm was owned by Hilda's Kraal Farm (Pvt) Ltd, held by indigenous black farmers Herbert Ncube and his wife Siphiwe Ncube through Deed of Transfer Number 2029/87. The farm was erroneously acquired under the land reform programme, which was intended to exclude farms already in indigenous hands. On 28 May 2001, the directors of the company resolved to hand over the farm to government for resettlement. Herbert Ncube was subsequently issued an offer letter for alternative land (Subdivision 1 of Khatsense Lot A in Lupane) on 9 March 2005, which he accepted. In 2006, the applicants were issued offer letters for plots at Hilda's Kraal Farm and have remained in occupation. The respondents later sought reinstatement and in HC 1968/13 obtained an order on 7 February 2014 to uplift the caveat on the farm's title deeds without citing the applicants as parties. The respondents had previously sued the applicants for eviction in HC 4010/12 and consented to rescission of the default judgment in HC 407/13 on 10 February 2014, demonstrating knowledge of the applicants' interest. The applicants sought rescission of the order granted in their absence.

• Whether the order granted on 7 February 2014 in HC 1968/13 was erroneously sought and erroneously granted in the absence of parties affected by it
• Whether the first and second respondents were obliged to cite the applicants in HC 1968/13 given their known interest in the farm
• Whether the requirements of Rule 449(1)(a) of the High Court Rules for rescission of judgment were satisfied
• What facts are relevant in determining whether a judgment was erroneously granted under Rule 449

1. The judgment or order granted on 7 February 2014 in case number HC 1968/13 is rescinded. 2. The applicants are joined as 3rd to 10th respondents in case number HC 1968/13. 3. The applicants are directed to file their opposition to that application within ten (10) days of the date of judgment. 4. The costs of this application shall be costs in the main application.

A judgment or order is erroneously granted within the meaning of Rule 449(1)(a) where it was granted in the absence of a party affected by it and the court was unaware of relevant facts that would have influenced its decision. A court considering a rescission application under Rule 449(1)(a) is not confined to the record of proceedings but may consider all facts which were not before the court that granted the original judgment or order. Where a party seeks relief that affects known interested parties, failure to cite those parties constitutes an error rendering the order susceptible to rescission. Once it is established that a judgment was erroneously sought and erroneously granted in the absence of a party affected by it, the judgment may be rescinded without further inquiry.

The court made observations about the history of Zimbabwe's land reform programme, noting it was designed to redistribute land from white farmers to landless indigenous citizens to correct historical imbalances from colonialism, and that the policy deliberately excluded acquisition of land already in indigenous hands. The court described the settlement of applicants on the farm as a "monumental mistake" given the farm was already indigenously owned. The court noted the "duplicity" of the respondents in obtaining the caveat upliftment order three days before consenting to rescission of the eviction judgment. The court observed that the applicants' case would have been hopeless had the respondents consistently resisted the government's error, but that the respondents gained a foothold by their initial voluntary surrender of the farm and acceptance of alternative land. The court noted that a review application (HC 974/17) challenging the withdrawal of the applicants' offer letters was still pending and stated it was not deciding the merits of that application.

This case is significant in South African and Zimbabwean jurisprudence for several reasons: (1) It illustrates the procedural requirements for rescission under Rule 449 where parties with known interests are not cited; (2) It establishes that courts considering rescission applications are not confined to the record of proceedings but may consider all relevant facts not before the court that granted the original order; (3) It demonstrates the importance of joinder of all parties with material interests in litigation, particularly in land reform matters; (4) It highlights tensions in land reform implementation where farms owned by indigenous persons were erroneously acquired under programmes intended to benefit indigenous persons; (5) It reinforces that duplicitous conduct by litigants (here, consenting to rescission while obtaining conflicting relief without notice) will not be countenanced by the courts; (6) It affirms the principle that an order obtained without full disclosure of material facts to the court is susceptible to rescission.