Evison Zuze v The Trustees of Bongayi Rushworth Mlambo and Jealous Marimudza

The first respondent purchased two pieces of land in Borrowdale, Harare, from Drawcard (Pvt) Ltd in February 2006 and sold both stands to the second respondent in June 2006. The second respondent took occupation but failed to pay the full purchase price within three months. The second respondent then entered into an agreement of sale with the appellant on 30 January 2007 for a portion of the property. The appellant paid the purchase price in instalments and took occupation in 2007, residing there for almost nine years. On 20 September 2016, the first respondent sued the second respondent in Case No. HC 9554/16 for failure to pay the purchase price, cancelled the agreement of sale, and obtained a default judgment for eviction of the second respondent and all others claiming occupation through him. The appellant was evicted pursuant to this default judgment. The appellant then sought rescission of the default judgment under r 449(1)(a) of the High Court Rules 1971 on grounds that it was erroneously sought and granted in his absence. The High Court dismissed the application, and the appellant appealed.

• Whether the default judgment was granted in error within the meaning of r 449(1)(a) of the High Court Rules 1971
• Whether the first respondent, as a mere purchaser and not the registered owner, had standing to obtain an eviction order
• Whether the appellant's constitutional right under s 74 of the Constitution (freedom from arbitrary eviction) was violated when he was evicted without being heard
• Whether r 449(1)(a) encompasses errors of law or only errors of fact
• Whether s 39(1) of the Regional Town and Country Planning Act [Chapter 29:12] precluded the appellant from claiming protection under s 74 of the Constitution despite the illegal subdivision

The appeal was allowed with costs. The judgment of the court a quo was set aside and substituted with an order granting the application for rescission with costs, rescinding the default judgment granted in Case No. HC 9554/16, and joining the applicant (appellant) in the proceedings in Case No. HC 9554/16 as the second defendant.

The binding legal principles established are: (1) Rule 449(1)(a) of the High Court Rules 1971 encompasses both errors of law and errors of fact, but the power to rescind extends only to judgments or orders that are procedurally flawed (errors of procedural law), not to errors of substantive law; (2) A default judgment is erroneously granted within the meaning of r 449(1)(a) where a relevant fact was not brought to the attention of the court and, had it been brought to its attention, the judgment would not have been granted; (3) Section 74 of the Constitution confers a procedural right on any person occupying a "home" to be heard before eviction and requires the court to consider "all the relevant circumstances" before granting an eviction order; (4) The protection afforded by s 74 extends to unlawful occupiers of property that constitutes a "home" and is not confined to strictly legal occupants; (5) A "home" for purposes of s 74 includes both permanent and temporary places of abode where a person dwells with some degree of permanence; (6) The illegality of a subdivision or occupation under planning legislation does not preclude the application of constitutional protection under s 74.

The Court provided extensive comparative analysis of South African jurisprudence on the equivalent of s 74 (s 26(3) of the South African Constitution), noting three major principles developed under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act: (1) people should generally not be evicted into homelessness without temporary alternative accommodation; (2) people facing eviction should be given a meaningful opportunity to participate in the resolution of the eviction dispute; (3) evictions which might lead to homelessness are never purely private disputes and always involve the State whose duty to provide emergency housing may be triggered. The Court also observed that what is required in considering all relevant circumstances is a balancing exercise between the rights and interests of all parties involved in or affected by the eviction dispute. While the Court did not definitively rule on whether a mere purchaser (not the registered owner) has standing to evict without actual physical possession or effective control, it indicated this was a relevant enquiry that should have been conducted. The Court also noted that in the instant case, it was not apparent from the record whether the appellant had suitable alternative accommodation, a factor relevant to the s 74 analysis.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It clarifies that r 449(1)(a) of the High Court Rules 1971 encompasses both errors of fact and errors of procedural law, but not errors of substantive law, and that the power to rescind extends to judgments that are procedurally flawed; (2) It provides important guidance on the scope and application of s 74 of the Constitution, establishing that the protection against arbitrary eviction extends beyond legal occupants to unlawful occupiers, provided they have established a "home"; (3) It establishes that s 74 confers both procedural rights (right to be heard) and requires substantive consideration of all relevant circumstances, including the period of occupation, circumstances of occupation, and availability of alternative accommodation; (4) It affirms that the illegality of occupation or subdivision does not preclude constitutional protection under s 74; (5) It demonstrates the balancing exercise required between property rights and socio-economic rights in eviction cases, reflecting constitutional values introduced by the post-2013 Constitution.