Ndabezinhle Ncube v Theresa Alwanger

The applicant and respondent entered into a Memorandum of Agreement of Sale on 4 December 1996 for the sale of a vacant stand being Lot 2 of Subdivision 3 of Lot 9 Woodville, Bulawayo. The respondent alleged that the applicant failed to pay the full purchase price. On 27 November 2003, NDOU J granted a default judgment cancelling the sale agreement after the respondent obtained leave to serve summons by publication in the Chronicle newspaper. The applicant, who resided in South Africa, was not personally served. After the judgment, ownership was passed to a third party who built a home on the property. In 2016-2017, approximately 14 years after the default judgment, the applicant visited the property and discovered the third party's house. He then sought rescission of the default judgment. The agreement of sale was entered into before the land was subdivided, in apparent contravention of section 39(1) of the Regional, Town and Country Planning Act which prohibits subdivision or change of ownership without a permit.

• Whether good and sufficient cause existed for rescission of a default judgment granted 14 years earlier in terms of Rule 63 of the High Court of Zimbabwe Rules, 1971
• Whether the applicant provided a reasonable explanation for his default in defending the original action
• Whether the applicant demonstrated a bona fide defence on the merits with prospect of success
• Whether the agreement of sale was unenforceable due to contravention of section 39(1) of the Regional, Town and Country Planning Act
• Whether the court should exercise its discretion to rescind the judgment given the rights acquired by third parties and the lapse of time

The application for rescission of the default judgment was dismissed with costs.

For an applicant to succeed in rescission of a default judgment under Rule 63 of the High Court Rules, 1971, good and sufficient cause must be shown, which requires consideration of three factors: (1) reasonableness of the explanation for default; (2) bona fides of the application; and (3) bona fides of the defence on the merits with prima facie prospect of success. These factors must be considered in conjunction with each other and with the application as a whole. The court will not exercise its wide discretion to rescind a judgment obtained lawfully where: (a) significant time has elapsed (14 years); (b) third parties have acquired vested rights in the interim; (c) the underlying agreement is unenforceable due to statutory prohibition (section 39(1) of the Regional, Town and Country Planning Act prohibiting subdivision or change of ownership without a permit); and (d) the applicant's defence lacks merit and prospect of success. Agreements for sale of subdivided property entered into before subdivision approval are unenforceable at law.

MATHONSI J observed that the applicant may pursue other remedies if he has any, though the court did not elaborate on what these might be. The court also noted inconsistencies in the respondent's own papers regarding the amount of purchase price outstanding ($7,500 in one place, suggesting $32,000 in another), though this did not affect the outcome. The court questioned what interest the applicant had in rescinding a judgment when there appeared to be confusion about which specific property was involved, with the applicant suggesting the property mentioned in the judgment was not the property he purchased. The court described the substituted service application as having been characterized by the applicant as 'fraudulent and criminal' but did not engage with this characterization, instead finding the order for substituted service was lawfully obtained and remained extant.

This case reinforces the principles governing rescission of default judgments in Zimbabwe, particularly emphasizing that: (1) courts will not readily interfere with judgments obtained years earlier where third parties have acquired rights in the interim; (2) agreements entered into in contravention of statutory requirements such as section 39(1) of the Regional, Town and Country Planning Act are unenforceable; (3) the three-factor test for rescission (reasonable explanation, bona fides of application, and bona fide defence on merits) must be applied holistically; (4) significant delay in seeking rescission militates against granting the indulgence; and (5) the court's wide discretion under Rule 63 must be exercised in accordance with justice and the interests of finality in litigation. The case illustrates the court's reluctance to upset settled matters and vested rights acquired in good faith by third parties.