Farisai Nando and Recskill Investments (Pvt) Ltd v Prime Investments (Pvt) Ltd represented by Godwills Masimirembwa and Sheriff for Zimbabwe

The applicant and Godwills Masimirembwa (G.M.) had been in an unregistered customary union which was later dissolved. They had three minor children together (aged 12, 10 and 7). Upon dissolution, G.M. undertook in writing on 15 March 2013 that the applicant and children would continue residing at 73 Orange Grove Drive, Highlands, Harare until he procured alternative similar property for them, acknowledging that the property was not owned by him. The property was owned by Recskill Investments (Pvt) Ltd. In May 2011, G.M., representing Prime Ventures (Pvt) Ltd, had signed an agreement to purchase all shares in Recskill for US$550,000, payable in three tranches by August 2011. There was dispute over how much had been paid - applicant claimed virtually the full amount save US$13,333, while G.M. and Recskill maintained only US$110,000 was paid. In November 2014, Recskill instituted proceedings (HC 10241/14) against Prime Ventures for breach of the sale agreement. G.M. consented to judgment, and an order for ejectment was granted on 11 December 2014. On 8 December 2014, the applicant wrote to Recskill's lawyers advising of her interest in the property and intention to seek joinder. She filed a joinder application on 19 December 2014. On 30 December 2014, the Sheriff served a writ of ejectment on the property against Prime Ventures 'and all persons claiming rights and occupation through him'. The applicant filed this urgent chamber application on 5 January 2015 to interdict the eviction.

• Whether the urgent chamber application was urgent
• Whether the applicant had locus standi to bring the application
• Whether the relief sought was competent given the existence of a valid court order for ejectment
• Whether the applicant could seek rescission of judgment under Rule 449 or Rule 63 without first being joined to the proceedings
• Whether the applicant established a prima facie right entitling her to interim relief
• Whether corporate personality could be used to deny the applicant relief where collusion was alleged
• Whether the requirements for an interim interdict were satisfied

Interim relief granted interdicting the Sheriff from removing the applicant's property and/or ejecting the applicant and her three minor children (Nicole Masimirembwa, Natalie Masimirembwa and Anotidaishe Masimirembwa) from 73 Orange Grove Drive, Highlands, Harare, pending determination of matters HC 10241/14, HC 10698/14 and MC 27477/14. The applicant was ordered to file her application for rescission of judgment in HC 10241/14 and/or HC 10698/14 by close of business on Monday, 12 January 2015, failing which the order would automatically lapse.

The binding legal principles established are: (1) A court may pierce the corporate veil where there is evidence of collusion and the use of corporate personality to perpetrate injustice or evade personal obligations; (2) An affected third party who has a prima facie right to occupy property based on a contractual undertaking has locus standi to challenge eviction proceedings, even where not initially a party to the litigation; (3) The right to apply for rescission under Rule 449 is available to 'any party affected' by an order and is not limited by the grounds available under Rule 63, which is restricted to parties against whom judgment was given in default; (4) A party may pursue both joinder and rescission applications where appropriate; (5) The requirements for an interim interdict are: (a) a prima facie right, even if open to some doubt; (b) well-grounded apprehension of irreparable harm; (c) balance of convenience favoring the applicant; and (d) no other satisfactory remedy; (6) Where a party has been advised of another's interest in property and intention to seek joinder but proceeds to obtain a consent judgment without response, this may constitute evidence supporting a finding of collusion or abuse of process.

The court made several obiter observations: (1) It is inappropriate business practice to refund the full purchase price under a cancelled agreement without deducting arrear rentals allegedly owed under a subsequent lease; (2) The court expressed disapproval of G.M.'s conduct in seeking to evade his written undertaking to provide accommodation for his former partner and minor children by asserting corporate personality while simultaneously seeking variation of that undertaking in magistrates' court proceedings on grounds of changed financial circumstances; (3) The court noted that for someone about to be evicted from their only home with minor children during the rainy season, 'it becomes pedantic to talk about an alternative remedy to an interdict'; (4) The court observed that Recskill had 'waited since 2011' and 'could wait some more' for rental recovery, implying criticism of the urgency with which eviction was pursued; (5) The court indicated its view that the documentary evidence produced by Recskill regarding payments was inconsistent and 'did not quite add up', suggesting doubts about the bona fides of the claim.

This case is significant in Zimbabwean jurisprudence for: (1) demonstrating the court's willingness to pierce the corporate veil where a company is being used as an alter ego to perpetrate injustice; (2) affirming the protection of vulnerable parties, particularly women and minor children, in family law disputes involving property rights; (3) illustrating the court's approach to preventing abuse of process through collusive litigation designed to circumvent legitimate rights and undertakings; (4) clarifying the relationship between Rules 449 and 63 regarding rescission of judgment and the rights of affected third parties; (5) applying the principles for interim interdicts where parties face eviction and potential homelessness; (6) emphasizing that corporate structures cannot be used to evade personal undertakings, particularly in the context of family law obligations.