Gema Juma Muganhiri represented by Ethel Tsomondo v Mark Nduku represented by Siduduzile Bhebhe and Ezekiel Nduku

The 1st Respondent, based outside Zimbabwe, sent money to his brother (2nd Respondent) in 2007 to purchase immovable property on his behalf. The 2nd Respondent purchased Flat B11, Msasa Park, Kwekwe from Joyce Ngarize through Messrs Makonese and Partners, with the agreement of sale being between 1st Respondent (represented by 2nd Respondent) and Joyce Ngarize. In 2011, unbeknown to 1st Respondent, the 2nd Respondent fraudulently sold the same flat to the Applicant by misrepresenting that he owned it, showing her a purported agreement between himself and Joyce Ngarize. The property remained registered in Joyce Ngarize's name at Kwekwe Municipal offices. The 1st Respondent obtained a default judgment in HC 2874/13 declaring the agreement between himself and Joyce Ngarize valid and the subsequent agreement between 2nd Respondent and Applicant fraudulent and invalid. The Applicant then sought rescission of this default judgment, claiming improper service (summons served on her tenant) and a good defence on the merits.

• Whether the Applicant was in wilful default when default judgment was obtained against her
• Whether the Applicant was properly served with summons
• Whether the Applicant has a good defence on the merits to justify rescission of the default judgment
• Whether the 2nd Respondent could validly transfer title to property he did not own

The application for rescission of judgment was dismissed with costs.

For rescission of a default judgment to succeed, both requirements must be satisfied: (1) the applicant must not have been in wilful default, and (2) the applicant must have a good defence on the merits. Even if wilful default cannot be conclusively established, the application will fail if there is no bona fide defence on the merits. A person who purchases property from someone who does not own it and has no valid title cannot obtain valid title, regardless of misrepresentation or fraud. The principle of nemo dat quod non habet applies - one cannot transfer what one does not own. Where a purchaser has been defrauded by a seller who had no title to the property sold, the purchaser's remedy lies in claiming damages for misrepresentation against the fraudulent seller, not in challenging a judgment that correctly identifies the true owner of the property.

The court noted that there was a factual dispute regarding whether the tenant properly notified the Applicant's representative about the summons, and observed that the tenant may have had an interest in the matter as he had become the 1st Respondent's tenant rather than the Applicant's tenant following the court order. The court commented that it was difficult to make a factual finding on this issue and could only give the Applicant the benefit of the doubt on that aspect. The court also observed that from the facts, it appeared the Applicant was indeed defrauded by the 2nd Respondent, implicitly recognizing her as a victim but nonetheless holding that this did not give her a defence against the true owner of the property.

This case reinforces the principle that rescission of a default judgment requires satisfaction of both limbs of the test: absence of wilful default AND a good defence on the merits. It also illustrates the important property law principle of nemo dat quod non habet (one cannot give what one does not have) - a person cannot transfer valid title to property they do not own, even if they previously represented someone else in acquiring it. The case demonstrates that even if service may have been irregular and wilful default cannot be established, rescission will still fail if there is no bona fide defence on the merits. It also clarifies that a victim of fraud in a property transaction must pursue damages against the fraudulent seller rather than seek to overturn a judgment that correctly identifies the legitimate owner.