Tendai Savanhu v T and S Marketing (Pvt) Ltd and Others

The applicant was evicted from house number 1 High Saddle Close, Folyjon Crescent, Glen Lorne, Harare on 17 February 2022 pursuant to a default order issued by the Magistrate Court on 25 January 2022 under case number MC 2681/21. Her movable property was also attached and sold in execution. The applicant subsequently applied for rescission of the default order, which was granted on 11 March 2022. When she attempted to access the property on 11 March 2022, she was refused entry by a guard. The property was registered in the first respondent's name, not in the applicant's or her late husband's name. On 28 February 2022, the property had been leased to a third party for one year. Additionally, a Protection Order dated 7 March 2022 had been issued against the applicant prohibiting her from entering the premises. The applicant sought urgent relief to regain access and occupation of the property on the basis that the rescission of the default judgment entitled her to restoration of the status quo ante.

• Whether the rescission of a default judgment granting eviction automatically entitles the evicted party to restoration of the status quo ante and re-occupation of the property
• Whether the court can grant occupation of property registered in another person's name on the basis of a rescinded eviction order
• Whether granting occupation would conflict with an extant Protection Order prohibiting the applicant from entering the premises
• The effect of a lawful eviction executed pursuant to an order that is subsequently rescinded

The application was dismissed.

The rescission of a default judgment ordering eviction does not automatically entitle the previously evicted party to re-occupy premises where: (1) the property is registered in the name of another party; (2) the eviction was lawfully executed pursuant to an extant order at the time of execution; (3) intervening property rights (such as lease agreements) have been created; and (4) granting re-occupation would conflict with other extant court orders such as Protection Orders. A court will not grant relief that would amount to setting aside another valid court order through the back door.

The court noted that even though the applicant and her late husband had been residing at the property for a long time, this fact alone was insufficient to grant her occupation rights against the registered owner. The court also acknowledged that the applicant had abandoned her claim for return of movable property and would pursue it through other remedies, suggesting alternative legal avenues were available to her. The court's characterization of granting relief as "setting aside the Protection Order through the back door" as "improper" reflects a broader principle of judicial comity and the importance of respecting concurrent court orders.

This case clarifies important principles regarding the consequences of rescission of default judgments in eviction matters. It establishes that rescission of an eviction order does not automatically entitle the evicted party to restoration of possession, particularly where: (1) the property is not registered in the evicted party's name; (2) the eviction was lawfully executed at the time; (3) there are intervening rights such as lease agreements; and (4) other court orders (such as Protection Orders) would be violated by granting re-occupation. The case demonstrates the limits of the principle of restoration of status quo ante and emphasizes that courts will not grant relief that would indirectly violate other extant court orders.