Spiwe Chidawu (nee Shemunyoro) v Clever Mandizvidza N.O. (in his capacity as Executor Dative in Estate Late Oliver Mandishona Chidawu) and Others

The plaintiff was married out of community of property to the deceased, Oliver Mandishona Chidawu, who died on 19 July 2022. The deceased left a will bequeathing 80% of a property (3A1 Highland Glen Road, Umwinsidale, Harare) to the 3rd, 4th and 5th defendants and 20% to the plaintiff. The plaintiff claimed that during the marriage, she and the deceased entered into a tacit universal partnership agreement to acquire properties jointly, and that she made financial and other contributions toward acquiring the property. She alleged the property was registered in the deceased's name as nominal holder but was beneficially owned by the partnership in equal shares. The plaintiff challenged clauses 3.1 to 3.5 of the will, seeking to be declared the beneficial owner of an undivided half-share in the property. The 4th defendant consented to judgment. The 1st defendant withdrew his appearance. The 4th and 5th defendants did not appear at trial. The 3rd defendant opposed the claim, disputing the existence of a tacit universal partnership and asserting the deceased's freedom of testation.

• Whether there was a tacit universal partnership agreement between the plaintiff and the deceased
• Whether the plaintiff made financial or other contributions toward acquisition of the property
• Whether the plaintiff is the owner of an undivided half-share in the property
• Whether the deceased was unjustly enriched by the plaintiff's contributions
• Whether the validity of clauses 3.1 to 3.5 of the will, particularly compliance with section 5(3)(a) of the Wills Act [Chapter 6:06]
• Whether orders granted against non-appearing defendants could be severed from those affecting the 3rd defendant who appeared
• Whether rescission of default judgment should be granted under common law when a party's counsel was present but not given opportunity to be heard

All orders granted at the commencement of the matter were rescinded. The 4th and 5th defendants remained barred from participating. The matter was set down for hearing on the merits with the 3rd defendant able to fully participate.

Where a party's legal representative is present in court but is not afforded an opportunity to be heard on orders that directly affect that party's interests, good and sufficient cause exists for rescission of the default judgment under common law. The test requires: (a) a reasonable explanation for the default; (b) bona fides of the rescission application; and (c) bona fides defence on the merits with prospects of success. A patent error justifying correction under Rule 29(1)(b) of S.I 202/21 exists only where the decision does not reflect the intention of the judicial officer pronouncing it, not where a litigant realizes mistakes in their own pleadings. In deceased estate matters involving multiple beneficiaries, relief may not be severable amongst defendants, and courts should be cautious about granting orders affecting beneficiaries without affording them opportunity to be heard.

Maxwell J observed that Rule 29 of S.I 202/2021 was not intended to rescue litigants who have drafted their pleadings incorrectly. The judge also noted that succession matters are always emotive and it is prudent not to dispose of them on technicalities, emphasizing the importance of allowing parties their day in court to prevent miscarriage of justice. The court indicated that a litigant is entitled only to what they pray for if the court is satisfied it is warranted, reinforcing that parties are bound by their pleadings.

This case is significant for Zimbabwean civil procedure, particularly regarding: (1) the proper application of rescission principles where a represented party is not afforded opportunity to be heard on orders affecting their interests; (2) the distinction between patent errors justifying correction under Rule 29(1)(b) of S.I 202/21 versus errors in a litigant's own pleadings; (3) the principle that relief in succession matters may not always be severable amongst different defendants/beneficiaries; (4) the court's discretion to prevent technical disposals of emotive deceased estate matters to avoid miscarriage of justice; and (5) confirmation that the test for "good and sufficient cause" for rescission requires consideration of reasonableness of default explanation, bona fides of application, and prospects of success on the merits. The case also touches on important substantive issues regarding tacit universal partnerships, unjust enrichment, and freedom of testation that remain to be decided on the merits.