Lomathemba Magadlela Songo N.O. and Lomathemba Songo v Silinda Songo and Others

Lomathemba Magadlela Songo was the widow of the late Sindiso Songo and was appointed executrix of his estate. The respondents (the deceased's father and two brothers) lodged a claim against the estate on 31 January 2005 for ownership of stand number 988 Mahatshula Township, Bulawayo, contending it was a family asset and not the deceased's exclusive property. When they learned the Assistant Master had authorized transfer of the property to the applicant, they obtained a provisional interdict (HC 933/05) preventing alienation. This was dismissed for want of prosecution (HC 1884/05), and their application for reinstatement (HC 156/06) was also dismissed. The respondents then issued summons (HC 1519/07) claiming transfer of the property. Summons was served on 18 July 2007, appearance to defend was entered, but no plea was filed. After the applicant's legal practitioners renounced agency and failed to respond to notice to bar, the applicant was barred and judgment was granted in favor of respondents on 17 July 2008. Two years later, on 14 September 2010, the applicant sought rescission of the judgment under Rule 449(1)(a).

• Whether the judgment in HC 1519/07 was erroneously granted in the absence of the applicant under Rule 449(1)(a)
• Whether the judgment was granted in error because judgment in a related matter (HC 153/06 for reinstatement) had been reserved
• Whether the matters constituted lis pendens

Application for rescission dismissed with costs.

A judgment cannot be rescinded under Rule 449(1)(a) on the ground that it was granted in the absence of a party where that party was represented by legal practitioners who entered appearance to defend and engaged in the litigation process, even if no plea was ultimately filed. Knowledge of litigation through legal representatives constitutes presence for purposes of Rule 449(1)(a). A judgment is not granted in error merely because judgment in a related matter has been reserved where the subject matter of the two matters is different and does not constitute lis pendens.

The court observed that the respondents had the right to issue summons to assert their ownership rights in the property. The court also noted that case number HC 153/06 for the reinstatement of HC 933/07 was ultimately dismissed with costs, though this was not determinative of the main issue. The court commended the proper concession made by the applicant's legal representative regarding the applicant's awareness of the litigation.

This judgment clarifies the application of Rule 449(1)(a) of the High Court rules regarding rescission of judgments erroneously granted in the absence of a party. It confirms that knowledge of litigation through legal representatives constitutes presence for purposes of the rule, and that mere reservation of judgment in a related matter does not render a subsequent judgment erroneous. The case also illustrates the consequences of failing to prosecute a defense after entering appearance to defend.