Erarah Investments (Private) Limited v Dove Wings Investments (Private) Limited and Others

Erarah Investments (Private) Limited (applicant) was the registered owner of Stand 668 Borrowdale Brooke Township. On 23 October 2002, it entered into an Agreement of Sale with Irvine's Day-Old Chicks (Private) Limited (second respondent) for "Unit 61" described as an undivided share with exclusive occupation rights, with a stated purchase price of $105,000.00 but no consideration payable. On 26 July 2004, the second respondent ceded its rights to Dove Wings Investments (Private) Limited (first respondent) for $360,000,000.00. At the time of both the 2002 agreement and 2004 cession, no subdivision permit existed authorizing the creation of "Unit 61" on Stand 668. The only relevant subdivision permit (SD/1330) was issued on 28 October 2002 - five days after the 2002 agreement - authorizing subdivision of Stand 668 into Stands 814 to 820, with no mention of "Unit 61". On 1 February 2023, Chinamora J granted a default judgment under Case No. HCH 8466/22 compelling transfer of Unit 61 to the first respondent. The applicant was allegedly not served with that application. Between May 2023 and early 2024, the applicant's former attorneys exchanged correspondence with the first respondent's attorneys discussing logistics of effecting transfer. In August 2025, the applicant filed the present application for condonation and rescission of the default judgment, arguing it was not served and that the judgment enforced an illegal transaction violating section 39 of the Regional, Town and Country Planning Act [Chapter 29:12].

• Whether condonation should be granted for late filing of the rescission application despite an inordinate delay from March 2023 to August 2025
• Whether the applicant provided adequate candour and explanation for the delay in its founding affidavit
• Whether the applicant's post-judgment conduct amounted to peremption (acquiescence) by engaging in correspondence regarding implementation of the judgment
• Whether the default judgment was erroneously granted under Rule 29(1)(a) of the High Court Rules, 2021
• Whether agreements for the sale of 'Unit 61' were void ab initio for violating section 39(1)(b)(i) of the Regional, Town and Country Planning Act [Chapter 29:12] which prohibits agreements for change of ownership of any portion of property without a subdivision permit
• Whether the transaction could be recharacterized as a sale of undivided shares under section 27 of the Deeds Registries Act rather than an illegal subdivision
• Whether the default judgment order was impossible to perform given the subsequent subdivision and extinction of the parent Stand 668

1. The application for condonation for the late filing of the application for rescission of judgment is granted. 2. The default judgment granted on 1 February 2023 under Case No. HCH 8466/22 is rescinded and set aside. 3. The applicant is granted leave to file its notice of opposition in Case No. HCH 8466/22 within ten (10) days of the date of this order. 4. The first and second Respondents shall pay costs of suit jointly and severally, the one paying the other to be absolved.

1. Agreements for the sale of portions of land concluded without a subdivision permit issued under section 39(1)(b)(i) of the Regional, Town and Country Planning Act [Chapter 29:12] are void ab initio and create no enforceable rights, regardless of how parties characterize or label the transaction. 2. Courts have a duty to refuse enforcement of judgments based on illegal transactions, and this duty overrides considerations of finality of judgments. 3. In condonation applications, strong prospects of success on the merits can compensate for otherwise inadequate explanations for delay. 4. Peremption/acquiescence requires unequivocal conduct inconsistent with any intention to challenge a judgment; ambiguous conduct susceptible to multiple interpretations is insufficient, and the onus of proof lies on the party alleging acquiescence. 5. Default judgments may be rescinded as erroneously granted under Rule 29(1)(a) where material facts establishing the illegality of the underlying transaction were not disclosed to the court granting the order. 6. Courts will not enforce orders requiring performance that is legally impossible due to the extinction or non-existence of the subject matter. 7. The character and legality of an agreement is fixed at its inception and cannot be retrospectively altered by subsequent reinterpretation.

The court observed that while it would be preferable for an applicant seeking condonation to pinpoint the precise date of discovering grounds for challenge, the absence of such specificity is not necessarily fatal if the affidavit provides a coherent and believable narrative of events. The court noted that the case "transcends a mere dispute over late filing or procedural default" and represents a fundamental question about "the limits of judicial power and the duty of the court to uphold the law." The judge commented approvingly on Advocate Zhuwarara's focused approach in abandoning multiple technical objections to concentrate on the most significant preliminary point, describing this as "commendable." The court also observed that even if one were to accept the respondents' argument that the parties intended something different than what was documented, this "does not absolve the transaction from the peremptory requirements of the law at the time it was concluded" - emphasizing that the character of agreements is fixed at inception. The court noted that the principle that "no party should benefit from its own wrong" is sound, but emphasized that the court has "an equally compelling, and indeed superior, duty: not to endorse, sanction, or enforce illegalities."

This judgment reinforces the absolute and peremptory nature of section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] in Zimbabwean law, confirming that agreements for portions of land without the requisite subdivision permit are void ab initio and unenforceable, regardless of parties' subjective intentions or subsequent attempts to recharacterize the transaction. The case demonstrates the court's willingness to grant rescission of default judgments where enforcement would sanction illegal transactions, emphasizing that the duty to uphold legality trumps finality of judgments. It clarifies that strong prospects of success on the merits can compensate for significant delay in condonation applications. The judgment also provides guidance on the doctrine of peremption/acquiescence, requiring truly unequivocal conduct inconsistent with any intention to challenge a judgment, and placing the onus of proof on the party alleging acquiescence. The case illustrates that courts will not enforce orders that are impossible to perform due to the subsequent legal extinction of the subject matter. It represents an important application of the principle that courts cannot become instruments for enforcing illegal contracts.