Edgar Howera v Herbert Tarirai Mudzingwa and Others

The first and second respondents took transfer of stand 6300 Mbizo Township on 12 December 2002. The applicant was already occupying the house, having purchased it from Stephen Nyamutuma in 1999, but never secured transfer to himself. The same Nyamutuma later sold the property to the first and second respondents who obtained registered title. The respondents instituted eviction proceedings in June 2003 (HC 1270/03). After the applicant failed to comply with court orders to provide particulars of his defense, his defense was struck out and an eviction order was granted on 11 May 2005. The applicant sought rescission and a stay of execution (HC 1047/05), obtaining a provisional order by consent on 23 August 2005. When the matter was set down for argument on 18 July 2008, both the applicant and his counsel failed to appear, resulting in judgment in default discharging the provisional order and confirming the eviction. The applicant was evicted on 1 April 2009. He subsequently obtained condonation for late filing and brought this application for rescission of the 18 July 2008 judgment.

• Whether the applicant established good and sufficient cause for rescission of judgment under Rule 63(2) of the High Court Rules, 1971
• Whether the applicant's explanation for his default in appearing at the hearing was reasonable
• Whether the applicant had a bona fide defense on the merits
• Whether the applicant's claim had prescribed in terms of the Prescription Act [Chapter 8:11]
• The application of the law relating to double sales where property has been transferred to the second purchaser
• Whether the first and second respondents were innocent purchasers for value

1. The application for rescission of judgment in case number HC 1729/09 is dismissed. 2. The applicant shall bear the costs on an attorney and client scale.

In an application for rescission of judgment under Rule 63(2) of the High Court Rules, 1971, the applicant bears the onus of proving 'good and sufficient cause' by establishing: (i) a reasonable explanation for the default; (ii) bona fides of the application to rescind; and (iii) a bona fide defense on the merits with prospects of success. These factors must be considered individually and in conjunction with the application as a whole. In cases of double sales of immovable property, where transfer has been passed to the second purchaser (C) who had no knowledge of the prior sale to the first purchaser (B) either at the time of sale or transfer, C acquires an indefeasible right and B's only remedy is an action for damages against the seller (A). However, if C had knowledge at either of these dates, B can recover the land in the absence of special circumstances affecting the balance of equities.

The court expressed strong disapproval of the proliferation of applications for rescission, condonation, and leave to appeal out of time, referencing the Supreme Court's statement in Ndebele v Ncube 1992(1) ZLR 288(S) that 'the law will help the vigilant but not the sluggard.' The court observed that in this matter, since the first summons was filed in June 2003, there had been no less than 5 applications and counter-applications taking the dispute in circles for over 7 years without finality. The court also noted, without deciding, the conflicting Supreme Court interpretations of Rule 63(1) in Sibanda v Ntini 2002 (1) ZLR 254(S) and Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 regarding whether an application for rescission must be set down within one month. The court declined to resolve this controversy as the application failed on other grounds. The court also commented that when legal practitioners refuse to release a client's file, they would usually be enforcing their lien for non-payment of fees.

This case reinforces several important principles in Zimbabwean civil procedure and property law: (1) the policy of finality in litigation and the court's intolerance of unending litigation and serial applications; (2) the strict application of the test for rescission of judgment under Rule 63(2) requiring good and sufficient cause assessed through reasonableness of explanation, bona fides of the application, and bona fides of the defense with prospects of success; (3) the application of the law of double sales, particularly that a second purchaser who takes transfer without knowledge of a prior sale acquires indefeasible title as an innocent purchaser; (4) the importance of acting timeously to secure one's rights and the consequences of prescription; and (5) the court's willingness to award costs on a higher scale where litigation is pursued without reasonable prospects of success. The judgment serves as a warning against dilatory conduct and abuse of process.