Susan Chawota and David Tinotenda Chawota v LL Promotions (Pvt) Limited and Others

The first respondent LL Promotions, represented by the third respondent Langton Tapiwa Chawota, borrowed money from the fourth respondent CBZ Bank in 2014. As security for the loan, a mortgage bond was registered over property stand No. 1589 Prospect Township in 2009. Both the first applicant (Susan Chawota) and the second respondent (David Chawota) signed to facilitate the registration of the mortgage bond. When the loan was not serviced, the parties negotiated a deed of settlement which led to a consent order in HC 11071/16 declaring the property executable. After the mortgage bond was registered, the first applicant and second respondent divorced under HC 912/15. As part of the proprietary settlement in the divorce, the second respondent donated his half share in the matrimonial property to the first applicant. The applicants then sought rescission of the judgment under HC 11071/16 in terms of Rule 449(1) of the High Court Rules, 1971, alleging that the judgment was erroneously granted and that the first applicant's signature had been forged.

• Whether the consent judgment declaring the mortgaged property executable under HC 11071/16 was erroneously granted in terms of Rule 449(1)(a) of the High Court Rules, 1971
• Whether the applicants' rights were affected by a judgment granted in their absence
• What are the requirements for rescission of judgment under Rule 449(1) as opposed to Rule 63
• Whether the first applicant's subsequent acquisition of the second respondent's share in the matrimonial property through divorce settlement affected the validity of the mortgage bond registered prior to the divorce
• Whether the allegation of forgery of the first applicant's signature was substantiated

The application for rescission of judgment was dismissed with costs.

Where a mortgage bond has been lawfully registered with the consent and facilitation of both spouses prior to their divorce, a subsequent consent judgment declaring the mortgaged property executable upon default in servicing the loan cannot be said to have been erroneously granted under Rule 449(1) of the High Court Rules. A party who consented to the registration of a mortgage bond and was aware of its consequences cannot successfully apply for rescission of a judgment enforcing that security on the basis that it was granted in error, particularly where the allegation of forgery is a bare assertion unsupported by substantial and satisfactory evidence. For rescission under Rule 449(1), the court must be satisfied that a judgment was erroneously sought or granted in the absence of an affected party, which requires showing that relevant facts were not placed before the court - it is not sufficient to rely on supervening events or changed circumstances that occurred after the creation of the security interest.

The court observed that the applicant's conduct in failing to seek to be joined in the execution proceedings after being communicated with by the bank amounted to waiver of her rights to challenge the execution. The court also noted that in applications for rescission under Rule 449(1), unlike Rule 63, the court need not inquire into whether there is "good and sufficient cause" or whether the party was in wilful default - the focus is strictly on whether the judgment was erroneously granted and whether relevant facts were not before the court at the time of the grant of the order.

This case clarifies the distinction between rescission of judgment under Rule 449(1) and Rule 63 of the High Court Rules, 1971 in Zimbabwean law. It establishes important principles regarding the protection of mortgage bonds registered with the consent of both spouses, and confirms that subsequent matrimonial property settlements arising from divorce cannot unilaterally affect validly registered security interests that were created prior to the divorce. The case also demonstrates the high evidentiary threshold required when alleging forgery in mortgage bond registration, and illustrates the principle that parties cannot escape the consequences of their prior consent to mortgage arrangements simply because of subsequent changes in their personal circumstances. The judgment reinforces the importance of certainty in banking and security law.