Ward Two Flats & Housing Cooperative v Newton Elliot Dongo and Finias Cuthbert Molisen and Amos Edington Matengambiri

The applicant is a housing cooperative whose members purchased land collectively. Mrs Tsinonis, a former member, sold her allocated land to Clever Mahowa, who in 2009 sold it to the first respondent. The first respondent breached the contract by failing to pay the full purchase price. The agreement of sale was cancelled by consent and confirmed by court order in HC 4076/10 on 26 July 2011, with the first respondent refunded and evicted. Clever Mahowa then sold the property to Benjamin Mandere, who sold it to the third respondent. The first respondent sued the third respondent for eviction and obtained a default judgment. The first respondent then pursued a claim against the applicant and obtained a default judgment on 18 July 2018 in HC 10482/18 for holding over damages of $550 per month from 26 July 2010 to 5 October 2013. The summons had been served in December 2013 on Mr Mazuru, who had resigned as the applicant's secretary in May 2013 and refused to accept service. The applicant applied to rescind this default judgment.

• Whether the applicant was in wilful default when the default judgment was granted
• Whether the applicant has a bona fide defence on the merits with prospects of success
• Whether failure to attach a resolution granting authority to depose to an affidavit is fatal to an application
• Whether proper service was effected on the applicant
• Whether the first respondent could claim rights under a cancelled agreement of sale
• Whether an illegal agreement entered in contravention of s 80 of the Cooperative Societies Act can give rise to enforceable rights
• Whether the applicant can be bound by a contract to which it was not a party

1. The application for rescission of the default judgment granted in HC 10482/13 on 18 July 2018 is granted. 2. The applicant is hereby directed to file a notice of appearance to defend and its plea within 5 days of receiving this order.

1. For rescission of a default judgment, an applicant must show they were not in wilful default and have a bona fide defence on the merits with prima facie prospects of success (Stockil v Griffiths 1992 (1) ZLR 172 (S)). 2. Resignation is a unilateral act which takes effect upon being communicated (Jakazi & Anor v The Anglican Church of the Province of Central Africa SC 10-13). 3. A party cannot be in wilful default if they were not properly served with process. 4. A party cannot claim rights emanating from a cancelled agreement of sale. 5. An illegal agreement contravening statutory provisions cannot give rise to enforceable rights - ex turpi causa non oritur actio (Dube v Khumalo 1986 (2) ZLR 103 (SC)). 6. A person who is not a party to a contract cannot be held liable or claim on it due to the doctrine of privity of contract - persons cannot suffer consequences of contracts to which they were not a party.

The court noted that while the test for rescission requires conjunctive consideration of wilful default and bona fide defence, one factor may sway the court - where an applicant gives an unsatisfactory explanation for default but has a convincing bona fide defence on the merits, the court will be inclined to grant rescission. The court also observed that the Ministry's failure to stamp a resignation letter or update its records does not invalidate a resignation that has been properly communicated.

This case demonstrates the application of the principles for rescission of default judgments in Zimbabwe, requiring an applicant to show it was not in wilful default and has a bona fide defence on the merits. It reinforces important principles of contract law, particularly the doctrine of privity of contract (that persons cannot be bound by contracts to which they are not a party), the ex turpi causa principle (that illegal agreements cannot be enforced), and that cancelled agreements cannot give rise to enforceable rights. The case also confirms that resignation is a unilateral act taking effect upon communication, and that improper service of process means a party cannot be held to be in wilful default. It clarifies that failure to attach a resolution authorizing a deponent is not fatal if authority is stated in the affidavit.