Diana Catherine Rodrigues v Stipzkopfarm Residents Association and Others

The applicant, Diana Catherine Rodrigues (aged 78 years), claimed to be the registered owner of LOT 10A and LOT 11 of Spitzkop registered under Deed of Transfer Number 2568/88. On 26 November 2020, a default judgment was granted under case HCH 3862/20 in favor of the first and second respondents, transferring the property to the respondent's name. The order was granted in the applicant's absence. The respondents had approached the court through the Chamber Book for an order under the Titles Registration and Derelict Lands Act, indicating the applicant's whereabouts were "unknown". They advertised their provisional and final order in the Herald Newspaper but cited a different Deed number (2563/88 instead of 2568/88) and cited the parties as "UREBAI RODRIGUES & OTHERS" without specifying the applicant by her full name. The applicant had a clear address (P.O Box 1593 Harare) in the Zvimba RDC Record but was not served directly. The applicant sought rescission of the default judgment, arguing she was not properly served and that the order was procedurally defective.

• Whether the applicant provided a reasonable explanation for the default in terms of Rule 27(1) of the High Court Rules 2021
• Whether the applicant had a bona fide defence on the merits with prospects of success
• Whether there was proper service on the applicant
• Whether the default judgment was granted against a deceased person (the fourth respondent)
• Whether the advertisement in the Herald Newspaper complied with the court order requiring publication in a newspaper circulating in Zimbabwe
• Whether section 8 of the Titles Registration and Derelict Lands Act was properly invoked

1. The default judgment granted on 26 November 2020 in case number HC 3862/20 be and is hereby rescinded. 2. The applicant is given leave to file her opposition papers within ten (10) days of granting this order. 3. The first and second respondents be and are hereby ordered to pay costs of suit.

For rescission of a default judgment under Rule 27(1) of the High Court Rules 2021, an applicant must demonstrate: (1) a reasonable explanation for the default; (2) bona fides; and (3) a bona fide defence on the merits with prospects of success, and these requirements must be considered in conjunction. Postal service to a known address constitutes proper service under the High Court Rules 2021, and failure to effect such service when an address is available renders subsequent default proceedings defective. Where an application for transfer of property under the Titles Registration and Derelict Lands Act contains fundamental errors in the deed number and property description, and where advertisement does not comply with the court's order (publication in a newspaper circulating in Zimbabwe versus only in Harare), the default judgment obtained will lack proper foundation and should be rescinded. A person seeking to establish that a court order was granted against a deceased person bears the onus of proving the person was deceased at the relevant time.

The court observed that it was reasonable for a 78-year-old person during the Covid-19 pandemic to stay home and avoid the risk of contracting Covid-19, and therefore not see newspaper advertisements. The court noted that where a founding affidavit shows shortcomings or errors in the original application, the court may elect to proceed either under Rule 27 or Rule 29, citing Barbarosa Desa v Barbarosa Desa SC 34/16. The court commented that an applicant challenging an order cannot alter the citation of parties as they appeared in that order and must follow the original citation, even if it includes citing a deceased person - thus the citation of the fourth respondent was not fatal to the application. The court also observed that the respondent "smuggled" the correct deed number into the final order despite the application and founding affidavit referring to a different deed number and by extension different property, suggesting a degree of procedural impropriety.

This case is significant in Zimbabwean civil procedure law as it demonstrates the court's approach to rescission of default judgments under Rule 27(1) of the High Court Rules 2021. It emphasizes the importance of proper service of process, particularly that postal service to a known address is valid and preferred over mere newspaper advertisement. The case illustrates that courts will scrutinize whether proper procedures were followed under the Titles Registration and Derelict Lands Act, and will grant rescission where there are fundamental procedural irregularities such as incorrect property descriptions, improper citation of parties, and non-compliance with court orders regarding advertisement. The judgment reinforces that elderly persons during Covid-19 could not reasonably be expected to see newspaper advertisements, providing context-specific consideration for default. It also clarifies that the burden of proving a party was deceased at the time of an order rests on the party making that assertion.