Maxwell Shumba and Sibusisiwe Shumba v The Apostolic Faith Mission of Portland Oregon (Southern Africa Headquarters)

The applicants (husband and wife) were subject to an initial summons by the respondent in case HC 1556/07, followed by summary judgment in case HC 1154/08 on 2 April 2009 ordering them to pay monies and vacate Greengables Farm, Bulawayo. The applicants appealed to the Supreme Court. While the appeal was pending, the respondent issued fresh summons under case HC 900/09 seeking the same relief. The applicants defended the matter and the respondent applied for summary judgment on 15 July 2009, which was opposed. Instead of filing heads of argument, the respondent issued a notice of intention to bar on 4 September 2009. The applicants failed to comply due to lack of funds to pay legal practitioners' fees. The respondent then obtained a default judgment on 22 October 2009. The applicants sought rescission of this default judgment and restoration to occupation of the property.

• Whether the application for rescission of the default judgment should be granted despite being out of time without condonation
• Whether the notice of intention to bar was irregular when a summary judgment application was pending
• Whether the respondent's issuance of double process for the same claim and relief was irregular
• Whether rescission of the second judgment could result in restoration of the applicants to occupation of the property
• The effect of multiple judgments on the same matter

The subsequent default judgment granted on 22 October 2009 was set aside. The judgment in case number 900/09 was ordered to stand. No order for costs was made, with each party to bear its own costs.

It is irregular for a respondent to issue double process (fresh summons and judgment) for the same claim and relief when an earlier valid judgment exists. Such a second judgment obtained through irregular double process is null and void and should be set aside. However, the setting aside of an irregular subsequent judgment does not affect the validity of an earlier judgment on the same matter that has not been successfully appealed or set aside. Rescission of an irregular judgment cannot result in orders that would effectively overturn a prior valid judgment that proceeded to execution.

The court observed that both parties failed to comply with the Rules regarding condonation for late filing of documents, which influenced the decision to make no order for costs. The court noted that a party seeking rescission of a judgment should file such judgment to enable the court to properly consider the application, as the court cannot rescind an alleged judgment whose existence, contents or order are not clear. The court also commented that if the respondent had already obtained summary judgment on the same case, there was no basis for issuing another summons, obtaining another judgment, and issuing a notice of intention to bar.

This case establishes important principles regarding the irregularity of issuing double process for the same claim and relief in Zimbabwean civil procedure. It demonstrates that while procedural irregularities may result in setting aside subsequent judgments, such relief cannot override a prior valid judgment that has not been successfully appealed or set aside. The case also reinforces the principle that parties seeking rescission must provide complete documentation and comply with procedural requirements including time limits and applications for condonation.