Maidei Moreblessing Nyamayaro v Albert Chitaunhike N.O (In His Capacity as Executor Dative of the Estate Late Ignatius Nhando Matungamire) and Tendai Nyateka

The applicant claimed to have entered into a 10-year verbal lease agreement in 2015 with the late Ignatius Nhando Matungamire for agricultural land (Subdivision 3 of Subdivision C of Learig Farm in Acturus, Goromonzi District) at US$200 per month. The deceased had been allocated the farm under the government's Land Reform and Resettlement Programme and passed away in December 2016. The applicant claimed to have invested approximately US$15,000 in greenhouses, US$40,000 in tractors and irrigation equipment, and US$1,000,000 in obligations under the Command Agricultural Scheme. The first respondent, as executor of the deceased's estate, disputed the applicant's claim of direct tenancy and maintained she was merely a subtenant to the second respondent (the recognized lessee who had a written lease agreement). After the parties engaged through legal practitioners with no resolution, the first respondent instituted proceedings in HC 1202/21 against the second respondent and all claiming through him. A default judgment was entered on 21 July 2021 without the applicant being cited. The applicant then sought rescission of this judgment under Rule 29 of the High Court Rules.

• Whether the judgment in HC 1202/21 was erroneously granted within the meaning of Rule 29
• Whether the applicant had direct and substantial interest in the matter sufficient to warrant rescission
• Whether non-joinder of a party not brought to the court's attention constitutes an error by the court
• Whether the applicant satisfied the requirements for rescission under Rule 29: (a) judgment erroneously sought and granted, (b) judgment granted in absence of applicant, (c) applicant's rights or interests affected by the judgment
• The effect of failure to file an answering affidavit to traverse material allegations in the opposing affidavit

The application was dismissed with costs.

A judgment is not erroneously granted within the meaning of Rule 29 merely because a party with an alleged interest was not cited, where that interest was not communicated to the court at the time of the original judgment. Misjoinder, where the court is unaware of an interested party who has not been cited, is not an error on the part of the court granting the order and cannot be corrected in terms of Rule 29. An error would only arise if the court, having been made aware of the interests of the non-cited party, proceeds notwithstanding the absence of that party to pass a judgment affecting that party's rights. For rescission under Rule 29, the applicant must demonstrate direct and substantial interest, and where such interest is disputed in the opposing affidavit and the applicant fails to file an answering affidavit traversing those disputes, the court cannot find that the requirements for rescission have been satisfied.

The court made obiter observations regarding section 28 of the Land Commission Act [Chapter 20:29], which prohibits sub-letting of agricultural land and declares such leases void. The judge noted the decision in Rangarirai Mago v George Rusere & Anor HMA 54-21 upholding this position but declined to fully interrogate these issues, stating that such examination would more properly take place before a court determining the parties' dispute on the merits. The judge noted that inquiry into illegality of contracts demands careful navigation of the principles of ex turpis causa and in pari delicto, referencing the approach in Agson Mafuta Chioza v Smoking Williams Siziba SC 4-15. The court also observed that rescission of judgment is a significant discretionary step exceptionally taken by the court to avert injustice where no other remedy is available, and that a party applying for rescission essentially seeks to draw the court out of its cloistered refuge of functus officio.

This case clarifies the requirements for rescission of judgment under Rule 29 of the High Court Rules in Zimbabwean law, particularly the meaning of "erroneously granted." It establishes that non-joinder of a party whose interest was not communicated to the court does not constitute an error by the court. The judgment reinforces the principle that applicants seeking rescission must demonstrate every entitlement to such relief, as rescission is a significant discretionary step. The case also emphasizes the critical importance of filing answering affidavits in motion proceedings to traverse material allegations in opposing affidavits, applying the principle that untraversed averments are deemed admitted. It provides guidance on distinguishing between situations where judgments are truly erroneously granted (court unaware of documents before it, false sheriff returns, judgments despite filed defenses) versus situations of mere non-joinder unknown to the court.