Nyland Enterprises (Private) Limited v Nikida Investments (Private) Limited and Others

The applicant, Nyland Enterprises, sought to set aside an order granted on 21 March 2018 under Case Number HC 11522/17, which confirmed the 1st respondent (Nikida Investments) as the owner of stand 1586 and stand 1585 of Lot 5 of Arlington Estate and directed the 2nd respondent (Dwellworth Investments) to transfer these stands to the 1st respondent. The chronology of events showed: (1) On 24 July 2012, the applicant brought an application (HC 8206/12) to restrain various respondents, including the 2nd and 3rd respondents, from selling or disposing of Lot 5 of Arlington Estate; (2) On 19 August 2013, the 1st and 2nd respondents entered into an agreement of sale for the stands; (3) On 19 September 2013, an interdict was granted in HC 8206/12; (4) On 29 October 2013, the applicant instituted action proceedings (HC 9051/13) seeking transfer of Lot 5 of Arlington Estate to it; (5) On 12 December 2017, the 1st respondent mounted case HC 11522/17; and (6) On 21 March 2018, the 1st respondent obtained the order that was now being challenged. The applicant argued that the order in HC 11522/17 was erroneously granted because there existed an interdict restraining the respondents from dealing with the property, and the property was res litigiosa at the time the order was granted.

• Whether the court order in HC 11522/17 was erroneously granted in terms of Rule 449 of the High Court Rules
• Whether the property was res litigiosa at the time the order in HC 11522/17 was granted
• Whether the order directing transfer of property could be granted when there was an existing interdict restraining such dealing
• Whether the procedural objection regarding use of Form 29B instead of Form 29 should be upheld
• What are the requirements for setting aside an order under Rule 449

1. The order granted by the court on 21 March 2018 under Case Number HC 11522/17 was rescinded. 2. There was no order as to costs.

The binding legal principles established are: (1) An order directing transfer of property will be set aside under Rule 449 if it was granted in error when the court was not made aware of an existing interdict restraining such transfer; (2) Property that is res litigiosa (subject matter of pending litigation) may not be disposed of or transferred after litis contestatio (joinder of issue); (3) For an application under Rule 449 to succeed, the following requirements must be met: (a) there must be an order or judgment of the court; (b) the order or judgment must have been erroneously sought or erroneously granted; (c) the error must not be on the part of the litigant but the court; and (d) there must be an injustice occasioned or likely to be occasioned by the order which can only be corrected by setting aside the judgment granted in error; (4) Where there is substantial compliance with procedural rules and no prejudice to the opposing party, the court may invoke Rule 4C to condone procedural irregularities such as use of the wrong form.

The court made observations regarding the proper use of forms in court applications, noting that while the applicant used Form 29B instead of Form 29 with appropriate modifications, this was different from the situation in Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited HH-667/15 where a totally different form was used. The court indicated this was an appropriate case for exercising discretion to condone the procedural irregularity in the interest of justice, given that the respondents were not prejudiced and managed to file their opposition timeously.

This case is significant in Zimbabwean property and civil procedure law as it reinforces the principle of res litigiosa - that property which is the subject of pending litigation cannot be transferred or dealt with while the litigation is ongoing. It demonstrates the protective function of interdicts and emphasizes that courts will set aside orders granted in error when the judge was not made aware of existing interdicts or pending litigation affecting the same property. The case also illustrates the application of Rule 449 for setting aside orders erroneously granted, and shows judicial flexibility in applying Rule 4C to condone procedural irregularities where there is substantial compliance and no prejudice to the opposing party.