Home of Angels Housing Co-operative Society Limited and 5 Others v City of Harare

Six housing co-operatives entered into consent papers with the City of Harare in February 2019, which were translated into court orders on 6 February 2019 concerning eviction from Lot 2 of Parkridge Estate (Paddock 27, Crowborough Farm, Harare). On 12 April 2021, the housing co-operatives filed a joint application for rescission of the consent judgment under rule 449(1)(c) of the repealed rules of court. Prior to this application, the first applicant had filed HC 8927/19 on 31 October 2019 under Rule 56 seeking rescission, which was not pursued after opposition was filed. On 23 November 2020, some of the applicants plus others filed HC 6886/20, also under Rule 56, which was similarly not pursued to finality.

• Whether the applicants adopted the correct procedure for rescission of a consent order
• Whether the plea of lis pendens applies where previous applications on the same matter remain pending
• Whether the deponent to the respondent's opposing affidavit (acting town clerk) had locus standi to depose to the affidavit
• Whether the deponents to the applicants' founding affidavits had locus standi

The application was struck off the roll with costs

A consent order can only be rescinded under Rule 56 of the repealed rules of court (requiring good and sufficient cause), not under Rule 449. The plea of lis pendens succeeds where the same parties have pending proceedings on the same subject matter and cause of action that remain uncompleted. Litigants cannot file multiple applications on the same matter while abandoning previous applications, and specific factual allegations in affidavits that are not controverted are deemed admitted. The court has inherent power under section 176 of the Constitution to refer to its own records and regulate its processes to prevent abuse.

The court observed that the acting town clerk, occupying the highest administrative position in the City of Harare (comparable to a chief executive officer), was clearly authorized to defend litigation on behalf of the respondent without needing additional proof of authority. The court noted that while lis pendens is a matter of law that counsel can argue, it requires factual allegations to be addressed by the litigant through affidavit evidence, not by counsel from the bar. The court expressed disapproval of the applicants' conduct in abandoning Rule 56 applications (which required substantive justification) in favor of Rule 449 applications (which did not), characterizing this strategic maneuvering as displaying "the highest degree of dishonesty which the court will not condone."

This case reinforces important principles of civil procedure in Zimbabwean law: (1) the correct procedure must be followed when seeking rescission of consent orders, with different rules having different requirements; (2) the doctrine of lis pendens prevents parties from filing multiple applications on the same matter without finalizing pending proceedings; (3) litigants cannot abandon proceedings and file new ones on the same issue to circumvent procedural requirements; and (4) the court will not condone dishonest litigation tactics such as forum shopping to evade substantive legal requirements.