Patience Mafu v Freeman Biba Ncube and The Bulawayo City Council

The applicant and first respondent were formerly married and divorced on 22 January 2009 with a division of matrimonial assets. Stand 7825 Highmount Bulawayo was to be retained by the first respondent who was required to pay the applicant R10,000 as compensation, failing which the applicant would assume ownership. The applicant filed HC 150/13 and obtained a default judgment on 12 February 2013 ordering transfer of the stand to her, despite no proof of service on the first respondent. The applicant obtained transfer using this order. The first respondent then successfully applied for rescission of the default judgment in HC 1950-14, which was granted on 29 January 2015 by Makonese J. The applicant then sought rescission of the rescission order in HC 3399/15 and filed this urgent application seeking an interdict to prevent transfer of the stand from her name.

• Whether an order granting rescission of judgment can itself be rescinded
• Whether a rescission of judgment order is interlocutory in nature
• Whether the applicant established the requirements for a temporary interdict
• Whether the applicant had a prima facie right to retain the property after the default judgment was rescinded
• Whether service on the applicant's legal practitioners was proper

The urgent application was dismissed with costs against the applicant.

A rescission of judgment order is interlocutory in nature as it does not decide the rights of parties or have the effect of disposing of the whole or portion of relief claimed, but merely constitutes a procedural ruling paving the way for determination of the dispute on the merits. Such an order should not itself be rescinded unless obtained fraudulently or by other unlawful means. A party who has had a default judgment rescinded cannot establish a prima facie right based on that rescinded judgment for purposes of obtaining an interdict, as the rescission removes the legal basis for any rights claimed under the default judgment.

The court questioned why a party would seek rescission of a rescission order rather than proceeding with the main matter on the merits, suggesting this indicates an attempt to cling to a procedural advantage rather than face adjudication on the merits. The court emphasized that as a matter of public policy, courts exist to adjudicate disputes on the merits, and definitive determination of the merits should be the first prize. Allowing rescission of rescission orders would lead to no finality in litigation as matters would be argued over and over again ad infinitum. The court also noted that the applicant's various procedural challenges (regarding signatures, service on legal practitioners, etc.) were unsupported by proper evidence and in some instances amounted to trifling with the court.

This case establishes an important principle regarding the finality and nature of rescission of judgment orders in Zimbabwean civil procedure. It clarifies that rescission orders are interlocutory in nature and should not themselves be subject to rescission (absent fraud or illegality), as this would undermine the purpose of rescission and prevent matters from being determined on their merits. The judgment promotes judicial economy and finality by discouraging parties from engaging in endless procedural battles rather than resolving disputes on the merits.