Francis Paketh v Yananai Chibonda

The appellant occupied property (Stand No 2893, Warren Park 1, Harare) owned by his brother Thomas. In February 2000, Thomas sold the property to the respondent (Yananai) and transfer was effected after payment of the purchase price. When the respondent required the appellant to vacate, the appellant refused, alleging he had spent $200,000 developing the property and that Thomas had undertaken not to sell before refunding that amount. The respondent filed an eviction application in the High Court. The appellant did not oppose the application, and a default judgment was granted on 13 September 2000. The appellant was evicted on 6 October 2000. In September 2001, the appellant filed an application to rescind the default judgment, which was dismissed with costs in April 2002. The appellant then appealed to the Supreme Court.

• Whether the appellant had a prima facie defence to the eviction application sufficient to warrant rescission of the default judgment
• Whether the appellant had standing to raise defences based on an alleged agreement with his brother (a non-party) against the respondent
• Whether the appellant could enforce rights allegedly belonging to third parties (his brother's wife) against the respondent

The appeal was dismissed with costs.

In an application for rescission of a default judgment, an applicant must establish a prima facie defence to the claim. An occupier of property who is not the registered owner has no standing to resist an eviction application by the registered owner based on alleged agreements with the former owner to which the current owner was not a party. A party cannot seek to enforce against a respondent agreements made with third parties who are not party to the proceedings, nor can they enforce the alleged rights of third parties.

The Court expressed surprise that the application for rescission was ever made, given that the appellant's own lawyers had previously acknowledged in writing that the private arrangement with the appellant's brother could not be used as a legal argument to deny the respondent's rights to vacant possession, and had apologized for the inconvenience caused.

This case illustrates important principles regarding applications for rescission of default judgments in Zimbabwe, particularly the requirement that an applicant must demonstrate a prima facie defence on the merits. It reinforces the principle that parties cannot enforce agreements to which the opposing party was not a party, and cannot claim standing to enforce third-party rights. The case also demonstrates the importance of proper legal advice and the consequences of pursuing meritless applications.