N & R Agencies (Pvt) Ltd and Mark Androliakos v Thabani Ndlovu and Maclean Bhala

The applicants occupied subdivisions 1 and 2 of Marcedale Farm in Bulilima District. The farm was gazetted as state land in July 2002 under Zimbabwe's land reform program. The two respondents were issued offer letters by the acquiring authority giving them the right to occupy the land. Following the applicants' failure to file heads of argument in a summary judgment application (case HC 1539/11), they were automatically barred and judgment was entered against them on 6 October 2011 ordering their eviction. On 30 November 2011, the Deputy Sheriff served the applicants with a notice of ejectment to be executed on 6 December 2011. The applicants only filed this urgent application on 5 December 2011 seeking to set aside the judgment or alternatively stay execution pending a rescission application. The eviction was carried out as scheduled on 6 December 2011, but the applicants failed to disclose this fact in their application. The applicants claimed they had a right to occupy the land as German nationals under a bilateral agreement between Zimbabwe and Germany.

• Whether the applicants were entitled to a stay of execution that had already been carried out
• Whether the applicants had complied with the duty of utmost good faith by failing to disclose material facts (the eviction having already occurred)
• Whether the applicants had prospects of success in a rescission of judgment application based on their claimed rights under a Bilateral Investment Protection Agreement (BIPA)
• Whether holders of offer letters issued under the land reform program have enforceable rights of occupation against former occupiers
• Whether the court should exercise its discretion to stay execution where the underlying claim appears unassailable

The application was dismissed with costs on an attorney and client scale.

1. Litigants making urgent applications must observe utmost good faith and disclose all material facts to the court, including subsequent developments such as execution having already taken place. 2. Holders of offer letters issued under the land reform program have enforceable rights of occupation that should be protected by the courts. 3. Land occupied under Bilateral Investment Protection Agreements is subject to compulsory acquisition under section 16B of the Constitution, and continued occupation beyond the prescribed period constitutes a criminal offense. 4. A court will not exercise its discretion to stay execution of judgment where the underlying claim is unassailable and any proposed rescission application lacks merit both in terms of willfulness of default and bona fides of the defense. 5. The principle of finality in litigation requires that rescission applicants demonstrate not only lack of willfulness in default but also a bona fide defense on the merits.

The court observed that the applicants' lack of diligence was epitomized by their failure to file an application for rescission of judgment even after a full week had elapsed, despite claiming they needed a stay of execution for that purpose. The court also commented that the lackadaisical manner in which the applicants conducted themselves throughout the litigation contributed to them being barred and judgment being entered in default. The court noted that if it had been more sympathetic to the application, there was nothing on the merits for the applicants to argue in any event.

This case reinforces important principles in Zimbabwean land reform jurisprudence, particularly regarding the rights of offer letter holders versus former occupiers of gazetted land. It confirms that Bilateral Investment Protection Agreements do not protect against compulsory acquisition under section 16B of the Constitution. The case also emphasizes procedural requirements in urgent applications, particularly the duty of utmost good faith and full disclosure of material facts to the court. It demonstrates the courts' approach to finality of litigation and the high threshold for rescission of judgment applications in land reform cases.