Ronia Gora and 44 Others v Tafara Infrastructural Development Consortium and City of Harare

Forty-five applicants sought rescission of a default judgment obtained by the first respondent (Tafara Infrastructural Development Consortium) against the second respondent (City of Harare) under case number HC 6455/20 granted on 2 December 2020. The default judgment had the effect of nullifying all allocations of land made to the applicants after a deed of settlement dated 31 May 2018 between the first and second respondents under case HC 1345/18. The applicants had entered into agreements of sale and received letters of allocation for various pieces of land from the second respondent after the deed of settlement. The applicants were not parties to case HC 6455/20 and were unaware of those proceedings. They claimed their rights to property were affected by the judgment as it cancelled their agreements of sale and letters of allocation. The first respondent opposed the application, arguing that the applicants lacked locus standi as they were represented by the first respondent, that the allocations were only provisional, that the second respondent had cancelled allocations on 5 July 2016, and that the deed of settlement prohibited the second respondent from allocating stands after 31 May 2018.

• Whether the applicants had locus standi to bring the application for rescission of judgment
• Whether the applicants were required to exhaust remedies under section 115 of the Co-operative Societies Act before approaching the court
• Whether the second respondent had authority to allocate stands after the deed of settlement under HC 1345/18
• Whether the requirements for rescission of judgment under Rule 449 of the High Court Rules, 1971 were satisfied
• Whether the judgment under HC 6455/20 was erroneously sought or granted in the absence of parties affected thereby

The application was granted. The default order under Case Number HC 6455/20 granted on 2 December 2020 was rescinded. The first respondent was ordered to bear costs of suit.

The binding legal principles established are: (1) Under Rule 449 of the High Court Rules, 1971, once an applicant establishes that (i) the judgment was erroneously sought or granted, (ii) it was granted in their absence, and (iii) their rights or interests are affected, they are entitled to rescission and the court should not inquire into the merits to find good cause; (2) Third parties whose property rights are affected by a judgment obtained in their absence have locus standi to seek rescission under Rule 449, regardless of whether they were original parties to the proceedings; (3) The right to be heard under section 69 of the Constitution is a fundamental right that cannot be limited and must be protected through the rescission process; (4) Section 115 of the Co-operative Societies Act does not apply to persons who are not members of co-operatives and does not oust the jurisdiction of courts in such circumstances; (5) A party claiming to represent others must provide evidence of such authority, and the court will not presume representation absent such evidence.

The court observed that the issues raised by the first respondent in its opposing affidavit regarding the validity of the allocations, whether conditions were met, and whether the applicants should have been members of co-operatives would be considered at the appropriate time when the merits of the matter under case number HC 6455/20 are considered. The court noted that costs on an ordinary scale (rather than the attorney-client scale sought) were appropriate in the interest of justice for putting the applicants to unnecessary expense. The court also made observations about the first respondent's failure to identify the specific provision in the deed of settlement that allegedly prohibited the second respondent from allocating stands, while Clause 10 actually appeared to permit reallocation.

This case affirms the broad protective scope of Rule 449 of the High Court Rules, 1971 in Zimbabwean law and its interaction with constitutional rights. It establishes that third parties whose property rights are affected by judgments obtained in their absence have substantial interest to seek rescission even if they were not original parties to the proceedings. The judgment reinforces the constitutional right to be heard under section 69 of the Constitution and confirms that once the three requirements for rescission under Rule 449 are established (erroneously sought/granted, absence of affected party, and affected rights/interests), the court need not inquire into merits to find good cause. The case also clarifies the limits of section 115 of the Co-operative Societies Act, holding it does not oust the jurisdiction of courts for non-members of co-operatives. It demonstrates judicial protection of property rights and procedural fairness in land allocation disputes.