Evison Zuze v The Trustees for the Time Being of Bongayi Rushworth Mlambo Trust and Jealous Marimudza

In February 2006, the B R Mlambo Trust purchased two pieces of land (Stand 126 and 127 Carrick Creagh Township Borrowdale). In June 2006, the first respondent (the Trust) entered into an agreement of sale with the second respondent (Jealous Marimudza), who took occupation without paying the full purchase price. In January 2007, the second respondent entered into an agreement to sell a portion of the property (Stand 8) to the applicant (Evison Zuze), who paid the purchase price in instalments and took occupation. In September 2016, the first respondent sued the second respondent in HC 9554/16 for breach of contract due to non-payment, seeking eviction. A default judgment was granted, and a warrant of eviction was issued against the second respondent and all persons claiming occupation through him, leading to the applicant's eviction. The applicant then brought this application seeking rescission of the default judgment under Order 49 Rule 449(1)(a) of the High Court Rules, arguing that the judgment was erroneously granted in his absence.

• Whether the applicant had locus standi to bring an application for rescission under Rule 449 as a party affected by the judgment despite not being cited in the original proceedings
• Whether the default judgment was erroneously sought or granted warranting rescission under Rule 449(1)(a)
• Whether a purchaser who has obtained vacant possession but not yet received transfer has the right to evict occupiers
• Whether the applicant's constitutional right to a home under section 74 of the Constitution of Zimbabwe 2013 was violated by the eviction
• Whether the agreement of sale between the second respondent and applicant was valid in light of section 39 of the Regional, Town and Country Planning Act relating to subdivision permits

The application for rescission of the default judgment was dismissed with costs on the general scale.

The binding legal principles established are: (1) Under Rule 449 of the High Court Rules, 'any party affected' includes persons with a sufficiently direct and substantial interest in the subject-matter to have entitled them to intervene in the original proceedings, even if not cited as parties. (2) A purchaser of immovable property who has obtained vacant possession (vacua possessio) from the seller acquires a right in rem to the property and has locus standi to apply for an ejectment order, notwithstanding that transfer has not been registered. (3) For rescission under Rule 449(1)(a), an applicant must demonstrate that the judgment was erroneously granted, was granted in their absence, and affects their rights or interests; mere non-joinder where the court was unaware of an interested party is not an error on the part of the court. (4) An agreement for the sale of a portion of immovable property entered into without a subdivision permit as required by section 39(1)(b) of the Regional, Town and Country Planning Act is void ab initio and unenforceable. (5) A sub-purchaser who occupies property pursuant to an agreement with an intermediate purchaser cannot have greater rights than the intermediate purchaser once the original agreement of sale is validly cancelled.

The court made several non-binding observations: (1) It would have been 'ideal' if the applicant had been cited in the original proceedings, though this would not have changed the outcome. (2) The court characterized the applicant's constitutional argument under section 74 as a 'desperate measure,' noting that while section 74 imposes procedural requirements before eviction, it does not prohibit evictions, and in this case the eviction had already been effected pursuant to a court order and was not arbitrary. (3) The court noted that Rule 449 is designed to correct errors made by the court itself and is not a vehicle through which new issues and new parties are brought before the court for trial, and it is an exception to the functus officio rule that must be resorted to only to correct injustices that cannot be corrected in any other way. (4) The court observed that Rule 449 goes beyond mere formal, technical, and clerical errors and may include the substance of orders or judgments.

This case is significant in Zimbabwean law for several reasons: (1) it clarifies the locus standi requirements for applications under Rule 449, confirming that parties not cited in original proceedings may bring rescission applications if sufficiently affected; (2) it reaffirms the principle that a purchaser with vacant possession has a real right (right in rem) to property and can evict occupiers even without registered title; (3) it demonstrates the strict interpretation of section 39 of the Regional, Town and Country Planning Act, emphasizing that agreements for sale of subdivisions without the required permit are void ab initio and unenforceable by courts; (4) it illustrates the limits of constitutional protection under section 74 (right to housing) where eviction follows a lawful court process based on contractual rights; and (5) it provides guidance on the requirements for rescission under Rule 449, particularly the need to demonstrate actual error by the court rather than mere non-joinder.