Francis Keith Maseko v Forbes Marowa and Others

The applicant purchased House No. 4009 Mandava Township Zvishavane from the first respondent for US$15,000 on 31 March 2021. An agreement of sale was signed and the first respondent confirmed the sale by affidavit. Subsequently, multiple magistrate court proceedings were initiated: (1) PO 24/21 - third respondent (first respondent's wife) obtained a peace order against applicant; (2) PO 98/21 - applicant obtained a default judgment for eviction of first respondent, which was stayed pending rescission. While these proceedings were ongoing, the second respondent (first respondent's father) filed a chamber application under HC 186/21 for appointment of a curator ad litem for the first respondent, alleging he was mentally ill. This application was granted on 28 July 2021, appointing the third respondent as curator ad litem. The applicant was not served with or made a party to the HC 186/21 application. Applicant then sought rescission of the HC 186/21 order under Rule 29(1)(a) of the High Court Rules 2021.

• Whether the applicant had locus standi to apply for rescission of an order in proceedings to which he was not a party
• Whether the applicant was an 'affected party' under Rule 29(1)(a) of the High Court Rules 2021
• Whether the order appointing a curator ad litem in HC 186/21 was erroneously granted
• Whether the evidence supporting the finding of mental illness was sufficient

1. The application for rescission of the court order under HC 186/21 is granted. 2. The court order issued under case No. HC 186/21 is set aside. 3. First to third respondents are to pay costs of suit jointly and severally, the one paying the others to be absolved.

Under Rule 29(1)(a) of the High Court Rules 2021, an applicant need not have been a party to the original proceedings to seek rescission of an order; they need only demonstrate that they are an 'affected party'. A party is 'affected' when the impugned order directly impacts their rights or interests in related proceedings, particularly where property rights are concerned. An order for appointment of a curator ad litem on grounds of mental illness is erroneously granted where: (1) the medical evidence does not establish actual mental illness but only general deterioration; (2) the evidence is not from a qualified psychiatrist; (3) the alleged mentally ill person has demonstrated capacity by deposing to affidavits and participating in litigation; and (4) there is material non-disclosure of relevant facts to the court, including the existence of valid contractual arrangements affecting the property in question.

The court observed that PO 24/21 (the peace order application) appeared to have been filed to frustrate the applicant from gaining access to the house which the second respondent was keen to resist, and that the allied allegations of harassment appeared to be 'red herrings thrown to mislead the court.' The court also noted with apparent significance that first respondent was employed at Mimosa which conducts regular medical check-ups, implying this supported the view that he was not mentally ill, though this averment was not opposed by the respondents.

This case is significant for establishing that under Rule 29(1)(a) of the High Court Rules 2021, a party need not have been cited in the original proceedings to apply for rescission if they can demonstrate they are affected by the order. The case emphasizes the duty of full and frank disclosure in chamber applications, particularly in curator ad litem appointments. It also establishes standards for medical evidence required to support findings of mental illness - general medical reports about deteriorated mental status are insufficient without proper psychiatric assessment and diagnosis. The judgment reinforces that procedural orders affecting property rights require proper notice to all interested parties.