Mario Damani v Waterbessie Investments (Pvt) Limited and Others

The matter arose from an order granted by Musithu J on 22 July 2025 granting spoliation relief and an interdict in favor of Waterbessie Investments (first respondent) against Mario Damani (applicant). The dispute concerned a portion of land in the District of Mazoe called Subdivision B of Vergenoeg measuring 871,0789 hectares, commonly known as Billabong Farm. The applicant was the registered owner of VALE 40 Mine on the property. There had been disputes between the parties since 2016, which had previously been resolved in the applicant's favor. In 2017, parties resolved issues amicably under case HCH 6357/17, and in compliance with that settlement and EMA requirements, the applicant erected a perimeter fence. This fence was allegedly removed by the first respondent's employees and replaced by the applicant in 2025. The first respondent brought an urgent chamber application for spoliation and an interdict. The applicant failed to attend the court hearing on 17 July 2025, and a default judgment was granted on 22 July 2025. The applicant claimed the notice of set down was handed to his wife while he was away and he only became aware of the matter when he attended his legal practitioners on 18 July 2025, after the order had been granted. The applicant was never personally served with the urgent chamber application.

• Whether the applicant demonstrated good and sufficient cause for rescission of the default judgment under Rule 27(1) of the High Court Rules, 2021
• Whether the applicant provided a reasonable explanation for his default in not attending the hearing
• Whether the application was bona fide
• Whether the applicant had a bona fide defence on the merits with prospects of success
• Whether the application for rescission was moot given that the spoliation order had already been executed
• Whether the unique miner-farmer relationship affected the analysis of the spoliation claim

1. The application for rescission of judgment was granted. 2. The judgment in HCH 3437/25 but only in relation to the spoliation order dated 22 July 2025 was set aside. 3. HCH 3437/25 only in relation to the application for a spoliation order shall proceed in terms of the rules. 4. Each party shall bear their own costs.

In an application for rescission of a default judgment under Rule 27(1) of the High Court Rules, 2021, the applicant must demonstrate good and sufficient cause by establishing: (i) a reasonable explanation for the default; (ii) bona fides in bringing the application; and (iii) a bona fide defence on the merits with prospects of success. Where service was effected on a third party in the applicant's absence and the applicant promptly engaged legal counsel upon becoming aware of the proceedings, this may constitute a reasonable explanation for default, particularly where the applicant had consistently defended previous proceedings. The execution of a spoliation order does not render a rescission application moot where the default judgment remains extant. In disputes involving the sui generis relationship between miners and farmers who must co-exist on the same land, courts should consider whether the applicant has a reasonably arguable or plausible defence, and where such a defence exists, rescission should be granted to avoid injustice, even in the context of spoliation proceedings.

The court made several non-binding observations: (1) That the issue of the fence appeared to be "the Achilles tendon" in the dispute between the parties. (2) That the order for spoliation "raises more questions than answers" given the history of the dispute. (3) That even though a spoliation order does not deal with the merits, the miner-farmer relationship is sui generis and deserves special consideration. (4) That it appeared possible that the fence was indeed put up in compliance with the 2017 settlement agreement between the parties. (5) That setting aside the spoliation order did not mean the applicant would immediately re-erect the fence, but only that he would be given an opportunity to argue his case before a judge. The court also noted that in case HCH 705/22, which had been mentioned in the interim relief, the first respondent was actually seeking that the applicant fence the area, and that this case had been dismissed by Mambara J on 22 September 2025, rendering the provisional order nugatory.

This case is significant in Zimbabwean law for several reasons: (1) It demonstrates the application of the established Stockil v Griffiths test for rescission of default judgments, emphasizing the court's willingness to grant rescission where all three requirements are met. (2) It confirms that spoliation orders, though final in nature per Blue Rangers vs Muduviri, can still be rescinded where good and sufficient cause is shown. (3) It recognizes the sui generis nature of miner-farmer disputes where both parties must co-exist on the same land, suggesting that this unique relationship may warrant special consideration even in spoliation proceedings which ordinarily do not deal with merits. (4) It clarifies that the execution of an order does not necessarily render a rescission application moot if the judgment itself remains extant. (5) It reinforces the principle that courts should avoid non-suiting parties where there is a reasonably arguable case, prioritizing substantive justice over procedural default.