NORWICH TRADING (PRIVATE) LIMITED v NYASHA MUZAVAZI AND 8 Others (SC 01 of 2026) [2026] ZWSC 7 (6 January 2026)

DRAFT Judgment No.SC 01//26 Civil Appeal No. SC 196/25 6 REPORTABLE (01) NORWICH TRADING (PRIVATE) LIMITED v NYASHA MUZAVAZI (2) NATHAN MNABA (3) ASTRODOME ENTERPRISES (PRIVATE) LIMITED (4) STANBIC BANK ZIMBABWE LIMITED (5) CHARMAINE LEES (6) KODJOTSE SABIRI (7) SHADRECK MASASA (8) THE REGISTRAR OF DEEDS N.O. (9) GREEN APPLE (PRIVATE) LIMITED SUPREME COURT OF ZIMBABWE BHUNU JA, CHIWESHE JA & MUSAKWA JA HARARE: 22 & 30 JULY 2025 & 6 JANUARY 2026 T. W. Nyamakura, for the appellant F. Nyangani, for the first and second respondent S .M. Bwanya, for the third respondent No appearance for the fourth, fifth, sixth, seventh, eighth and ninth respondents MUSAKWA JA: This appeal arises from the judgment of the High Court (“court a quo”) delivered on 28 February 2025, in which it held that the appellant’s bid to rescind the judgment in HC 2755/17 had become moot. BACKGROUND FACTS The appellant is Norwich Trading (Pvt) Ltd, a private limited liability company duly incorporated and existing under the laws of Zimbabwe. The first respondent is Nyasha Muzavazi, an adult male, whose address is unknown. The second respondent is Nathan Mnaba an adult male, residing at 315 Carrick Creagh Road, Glen Lorne, Borrowdale, and Harare. The third respondent is Astrodome Enterprises (Pvt) Ltd, a company duly registered and incorporated in accordance with the laws of Zimbabwe. The fourth respondent is Stanbic Bank Zimbabwe Limited, a banking institution duly registered and regulated under the Banking Act [Chapter 24:20]. The fifth respondent is Charmaine Lees, an adult female, domiciled at 431 Wheldon Avenue, Helensvale, Harare. The sixth respondent is Kodjotse Sabiri, an adult, also domiciled at 431 Wheldon Avenue, Helensvale, Harare. The seventh respondent is Shadreck Masasa, an adult male, residing at 178 Block 15, Willowvale Flats, Harare. The eighth respondent is the Registrar of Deeds N.O., vested with the statutory duty to the register, manage, and maintain immovable property records in Zimbabwe in terms of the Deeds Registries Act [Chapter 20:05]. The ninth respondent is Green Apple (Pvt) Ltd, a private limited liability company duly incorporated under the laws of Zimbabwe Mahendra Savania and his wife, Nighert Savania, each held an equal 50% shareholding in the appellant. The appellant’s sole asset was Stand 750 Greystone Township 10 of Greystone A, commonly known as 750 Gaydon Road, Greystone Park, Harare (“the property”). Mahendra Savania passed away in 2010, survived by his wife and their three children, who together stood as beneficiaries of his estate. Before executorship was ever conferred, the appellant encountered the second respondent in mid-2011. He expressed interest, not merely in the shareholding of the company, but in the property itself, which by that time stood dormant. Negotiations ensued and on 10 October 2011, the parties set pen to paper, recording a written agreement in terms of which Nighert Savania purported to sell the entire issued shareholding of the appellant to the second respondent for US$380 000.00, payable in instalments. The second respondent took occupation of the property swiftly yet, only US$250 000.00 was ever tendered, leaving a balance of US$130 000.00 outstanding. After notices to remedy the breach went unanswered, Nighert Savania cancelled the agreement and sought eviction, holding-over damages, and confirmation of ownership through rectification of the company’s records in HC 9654/13. Also claimed was retention of the money already paid and the cancellation of a fraudulent Form CR 14 submitted by the second respondent, alleging that he lawfully removed Nighert Savania and her late husband as directors of the appellant despite lacking any legal standing, as he was neither a shareholder nor a director. Conversely, the second respondent admitted to the agreement but claimed that Nighert Savania had contributed to his breach by undermining his business. He later disavowed the written contract, relying on an alleged oral agreement granting him ownership based on part payment. He also argued that Mrs Savania lacked the authority to sell shares belonging to her late husband's unregistered estate. Claiming majority shareholding, he asserted that, under s 126 of the Companies Act [Chapter 24:03], he was entitled to convene a meeting and alter the appellant’s directorship. On locus standi, the court a quo per, Mathonsi J (as he then was), found that the second respondent’s position was self-defeating because on one hand he claimed rights from an agreement with Nighert Savania, yet on the other hand, he denied her the power to enforce it. It found that she signed the contract, handed over the keys, and remained a director despite his unlawful, contested attempt to remove her. Therefore, her standing was clear. On the merits, the court a quo found that the second respondent had acted dishonestly and in bad faith. It held that the share sale agreement was void ab initio, for unlawfully disposing of estate shares without authority or registration. The second respondent’s belated claim of an oral agreement was dismissed as a fabricated afterthought, inconsistent with the pleadings and unsupported by evidence. The court concluded he was never a lawful shareholder or director and had no right to alter company records or occupy the property. Accordingly, on 7 November 2018 in judgment HH 730/18, the court ordered the second respondent’s eviction, cancellation of the fraudulent C.R. 14 form, and awarded holding-over damages, condemning his conduct as exploitative and unworthy of indulgence. On 22 March 2021, the appellant found the locks forcibly replaced and the third respondent in occupation, claiming to have purchased the property in March 2019 pursuant to a consent order issued by Mushore J on 17 August 2018 under HC 2755/17 in favour of the fourth respondent for loan arrears. Unbeknown to the appellant, the first and second respondents had used the cancelled C.R. 14 to secure a loan from the fourth respondent, which they later defaulted on, leading to the court-sanctioned sale of the property. Under the order granted by Mushore J, the “appellant”, represented by the first and second respondents, was directed to pay US$200 126.50, and the property was declared executable, with its sale by private treaty authorised within 60 days. Acting on that order, the first and second respondents purported to sell the property to the third respondent on 21 March 2019, with the proceeds used to settle the loan obtained. PROCEEDINGS IN THE COURT A QUO Discontented with the judgment per Mushore J, the appellant instituted proceedings seeking rescission of the judgment under r 449 of the High Court Rules, 1979, and at common law, together with a declaratory order and ancillary relief. It asserted that the judgment was obtained through fraudulent means. It sought to set aside the sale agreement with the third respondent, declare the deed of hypothecation in favour of the fourth respondent null and void, and confirm that the first and second respondents had never held any position in the appellant. A permanent interdict was also sought to bar them from acting or transacting as directors or shareholders. The appellant argued that the second respondent fraudulently concealed the parallel proceedings before Mushore J in HC 2755/17 while HC 9654/13 was still pending before Mathonsi J (as he then was). It further contended that the second respondent was not a member of the appellant, as he failed to pay the full purchase price and was never issued a share certificate, and thus could not lawfully claim shareholder status. The appellant contended that the parallel proceedings before Mushore J were never disclosed to Mathonsi J (as he then was). The appellant argued that any title deed executed at their instance was a forgery aimed at nullifying the earlier judgment. Per contra, the first respondent maintained that the appellant, by withholding the sale of the property to Faramatsi (Pvt) Ltd in January 2021, approached the court with unclean hands, attempting to undo an order it had itself flouted. The second respondent opposed the application, raising preliminary objections including res judicata and lack of cause of action. He further argued that the appellant knowingly concealed the sale of the property to Faramatsi (Pvt) Ltd on 28 January 2021, despite being aware of an existing court order by Mushore J. In doing so, the appellant approached the court with dirty hands, having disregarded the very order it sought to have rescinded. Substantively, he argued that Mathonsi J (as he then was) had not invalidated the sale agreement but merely restored the status quo prior to his claimed shareholding. He maintained that he and the first respondent were rightful directors and occupants of the property, and that the judgment by Mathonsi J (as he then was) only set aside their directorship, not the underlying agreement. DECISION A QUO The court a quo found that the first respondent failed to disclose the parallel proceedings in HC 9654/13 before Mathonsi J (as he then was), thereby misleading the court in HC 2755/17 into granting an order inconsistent with an existing judgment. It held that Mushore J’s order was thus improperly obtained. The court a quo found that the January 2021 sale raised doubts about the appellant’s standing, as clause 4 transferred risk and benefit to a third party, potentially divesting the appellant of any interest in the property. It further held that the sale was in violation of the court order issued by Mushore J. It also found that the 2021 sale agreement violated the extant order by Mathonsi J (as he then was) and reaffirmed that a judgment obtained through fraud cannot be protected by res judicata. However, it noted that the appellant had absolved the fourth respondent of wrongdoing regarding the execution of the property to a third party. Since the fourth respondent was no longer a party to the proceedings, the court concluded that granting declaratory relief would amount to a brutum fulmen, rendering the matter moot. It accordingly dismissed the application. Undeterred by this unfavourable decision, the appellant noted the present appeal on the following grounds: GROUNDS OF APPEAL Upon correctly determining that the consent order granted by Justice Mushore on 17 August 2018 was issued under circumstances involving fraud and non-disclosure, the High Court erred in not recognising its duty to set aside the order and require the beneficiaries to relinquish any benefits obtained from it.A fortiori, the High Court purported to exercise a discretionary power to refuse rescission of default judgment in the circumstances, where such discretion does not exist in our law, based on the prior finding in respect of the circumstances of the Mushore J’s judgment.The court erred and misdirected itself in failing to apply the authorities from this Honourable Court that establish that once cause has been shown under the old rule 449 now r 29 of the High Court Rules, 2021, a Court must rescind judgment.The court erred in proceeding under the incorrect factual basis that the appellant had absolved the fourth respondent from liability whereas, in fact, and in truth, the appellant only withdrew para 4 of its draft order, while the fourth respondent pleaded no contest to the relief sought by the appellant.The court a quo erred and misdirected itself in concluding that the granting of the rescission sought by the appellant would amount to a brutum fulmen on the wrong and unpleaded basis that the matter before it was moot.The court a quo erred and, in any event, in failing to find as it should have, that the sale agreement dated March 2019 relied upon by the third respondent was void as: (a). It was done in violation of the order by Mushore J dated 17 August 2018 and (b). It was void for want of authorisation by the appellant, considering the import of the extant judgment by Mathonsi J in HH 730/18. The court a quo erred and misdirected itself in failing to consider the import of the extant judgment by Mathonsi J in HH 730-18, to the relief sought by the appellant in the proceedings a quo. PROCEEDINGS BEFORE THIS COURT Counsel for the appellant, Mr Nyamakura, submitted that once the court a quo found that the judgment of Mushore J had been procured through fraud or misrepresentation, it no longer retained any discretion to refuse rescission. Relying on Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S), he argued that a judgment obtained through fraud is a nullity and cannot stand. Mr Nyamakura further contended that the second respondent had unlawfully consented to the impugned judgment despite the prior finding of Mathonsi J (as he then was) that he was never a shareholder in the appellant and had fraudulently lodged a C.R.14. It followed, so the submission went, that any agreement predicated upon that judgment was equally void. Mr Nyamakura submitted that the Registrar of Deeds confirmed that the property remains registered in the appellant’s name and that the report is part of the record. Therefore, he contended that the third respondent could not claim ownership under Mushore J’s judgment and simultaneously disassociate himself from the present proceedings. Citing Securiforce v Ruiters 2012 (4) SA 252 (NCK), he argued that rescission nullifies all acts stemming from the irregularity. Further, if the third respondent believed that Faramatsi (Pvt) Ltd acquired the property, it could have sued them. Counsel stated that currently, there was no legal relationship between the appellant and Faramatsi (Pvt) Ltd. Per contra, Mr Nyangani, for the first and second respondents, contended that no live dispute remained, as the appellant had expressly exonerated the fourth respondent. He further submitted that the appellant had, after judgment, sold the property, thereby divesting itself of any legal interest. Mr Nyangani also argued that the issue of title was immaterial, as the appellant had already entered into an agreement of sale with Faramatsi (Pvt) Ltd, thereby divesting its interest in the property regardless of whether or not transfer was effected. Finally, he contended that the appellant thus lacked a bona fide defence to the rescission application and the present appeal. Counsel for the third respondent, Mr Bwanya, argued that, as it had not been a party to the proceedings before Mushore J, it could not properly be cited in a rescission application. He asserted that the appellant’s express exoneration of the fourth respondent demonstrated that no fraud was attributable to the third respondent and that the appellant was wrongly directing its efforts against parties who were not implicated in the alleged wrongdoing. In response to the Court’s enquiry whether the fourth respondent could benefit from fraud, counsel maintained that the fourth respondent had acted throughout in good faith and that any fraud was confined to those directly involved in procuring the impugned judgment. In reply to the submissions by the opposing parties, counsel for the appellant submitted that the joinder of the third respondent was proper, as its rights would be affected by any rescission. When asked what recourse the appellant had against the third respondent, counsel referred to Nzara & Ors v Kashumba N.O. & Ors 2018 (1) ZLR 194 (S) at p 204, arguing that a plea of innocence by a third party is not a defence to the setting aside of tainted rights, and that rights acquired through fraud cannot be retained. Addressing the alternative remedy of damages proposed by the first and second respondents, counsel insisted that an owner unlawfully deprived of property remains entitled to vindicate it, as real rights take precedence over personal rights. ISSUE FOR DETERMINATION As the submissions unfolded, it became clear that the dominant issue for determination before this Court is contingent upon whether or not the court a quo misdirected itself in dismissing the appellant’s application for rescission. ANALYSIS The salient facts are these: the court a quo, per Mathonsi J (as he then was), ordered the eviction of the second respondent, directed him to pay holding-over damages, and cancelled the C.R.14 filed by the first and second respondents, restoring the prior one reflecting Nighert Savania and her late husband, Mahendra Savania, as directors. That judgment remains extant and binding. Yet, despite this, the first and second respondents consented to a judgment before Mushore J while fully aware that their claim to control the appellant and the property was still before Mathonsi J. It was this duplicity that prompted the appellant to seek rescission of the judgment of Mushore J on the ground of fraud. Nevertheless, the court a quo deemed the matter moot, notwithstanding the evident deceit and the incontestable fact that the property remained registered in the appellant’s name. Rescission ought to have followed as a matter of course. For at the centre of the appellant’s grievance stands a clear fact that the property never slipped from its grasp and never migrated into another’s estate but endures in the public registers as its lawful dominion. That alone demonstrates that the matter cannot be regarded as moot, because as the legal owner the appellant retains the right, indeed, the duty, to vindicate its title and to secure redress against any party who falsely claims control or title over it. From a legal standpoint, ownership of immovable property confers the right to recover possession from any person who holds or occupies the property without legal justification, also known as rei vindicatio. This doctrine has been upheld in Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 226 (H) at 236 E and 237 D-E (which are aptly captured in the headnote), wherein Makarau JP (as she then was) remarked: “The actio rei vindicatio is found in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to protect his property that, at law, he is entitled to recover it wherever it is found and from whomsoever is holding it, without alleging anything further than that he is the owner and that the defendant is in possession of the property. Thus, it is an actio in rem, enforceable against the world at large. There are no equities in the application of the actio rei vindicatio. Thus, in applying the principle, a court may not accept and grant pleas of mercy or for extension of possession of the property by a defendant against an owner for the convenience or comfort of the possessor, once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits of no discretion on the part of a court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.” Similarly, in Graham v Ridley 1931 TPD 476, the following was said about actio rei vindicatio: “It may be difficult to define comprehensively but there can be little doubt that one of its incidences is the right of exclusive possession of the res without the necessary corollary that the owner may claim his property wherever found from whomsoever holding it. It is inherent in the nature of ownership that possession should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner.” Ownership in its fullest sense carries with it the real right of exclusive control, use, and enjoyment. Embedded within that right is the classical remedy of rei vindicatio, available to an owner seeking restoration of property from any party that holds or interferes with it without lawful justification. Once ownership is proved, the law imposes no further burden upon the vindicating owner other than to show that the respondent is in possession or exerting unlawful control; the entitlement to relief then flows as of right. It is an incontestable fact on the record that the appellant is the registered owner of the property in dispute. The first and second respondents, who were fully aware that they had no cognisable proprietary or judicially recognised interest in the property, nonetheless consented to its execution in a manner that can only be described as clandestine and irregular. Their conduct subverted the fundamental principle that execution may only be levied against the property of a judgment debtor, and even then, strictly within the confines of the law. By orchestrating or acquiescing in the execution of property belonging not to themselves but to the appellant, the respondents acted ultra vires and in manifest contravention of established legal norms governing execution processes. The judgment of Mushore J stands as a stark departure from both substantive and procedural justice. In overlooking the appellant’s unimpeachable title, it effectively endorsed an unlawful deprivation of proprietary rights. Such a judgment cannot stand in a legal system committed to the protection of ownership and the rule of law. More critically, it infringed upon the appellant’s constitutionally and legally protected right to control, enjoy, and vindicate its property. In these circumstances, the appellant maintained, with firm and reasoned conviction, that once fraud had been established, the court was stripped of any residual discretion and was duty-bound to rescind the impugned order. The logic of this position is compelling. A judgment founded upon fraud is but a distorted order that cannot be permitted to subsist. The authors, Herbstein and Van Winsen, in The Civil Practice of the High Court, 5th ed, Volume 2, at p 939, state that: “A judgment procured by fraud of one of the parties, whether by forgery, perjury, or any other way such as the fraudulent withholding of documents, cannot stand.” Likewise, as Lord Denning aptly stated in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712: “No court on this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.” These words ring with resonance in the context of fraud. A judgment procured through dishonest means is more than irregular: it is void ab initio. It was insufficient for the court a quo merely to acknowledge the taint of fraud, but rather it was enjoined to act upon it. The court a quo was under a strict and unavoidable obligation to grant the rescission of the judgment. Once it was established that Mushore J’s order had the effect of extinguishing or impairing the rights of a party who had neither been properly heard nor lawfully divested of its property, rescission was not merely permissible, it was imperative. We find no course more faithful to law and conscience than to honour the appellant’s registered real rights as proprietor of the property, and to let the present appeal find its rightful success. DISPOSITION In the end, the resounding dispositive truth is this: the property has never strayed from the appellant’s name, and with that immutable fact comes its full and unfettered right to reclaim the property from any hand seeking, unlawfully, to strip it of that sacrosanct mantle of ownership. The appellant has not lost its ownership merely because a judgment was granted to dispossess it; title does not yield to injustice, nor does ownership evaporate under the shadow of a fraudulent decree. It was a grave error procured by fraud for the court a quo, per Mushore J, to divest the appellant of its property without its consent or knowledge. It was graver still that the property was rendered executable for a debt incurred by persons who were never its lawful owners. In the face of such manifest injustice, we discern no cognizable reason why a judgment sanctioning it should be permitted to stand. Accordingly, it is hereby ordered as follows: 1. The appeal be and is hereby allowed with costs. The judgment of the court a quo be and is hereby set aside and substituted with the following: “1. The application for rescission be and is hereby granted. 2. The judgment of the High Court in case number HC 2755/17 be and is hereby set aside in its entirety.” BHUNU JA : I agree CHIWESHE JA : I agree Gill, Godlonton & Gerrans, appellant’s legal practitioners. Nyangani Law Chambers, first and second respondents’ legal practitioners. Jiti Law Chambers, third respondent’s legal practitioners. DRAFT Judgment No.SC 01//26 Civil Appeal No. SC 196/25 6 DRAFT Judgment No.SC 01//26 Civil Appeal No. SC 196/25 6 DRAFT Judgment No.SC 01//26 Civil Appeal No. SC 196/25 6 REPORTABLE (01) NORWICH TRADING (PRIVATE) LIMITED v NYASHA MUZAVAZI (2) NATHAN MNABA (3) ASTRODOME ENTERPRISES (PRIVATE) LIMITED (4) STANBIC BANK ZIMBABWE LIMITED (5) CHARMAINE LEES (6) KODJOTSE SABIRI (7) SHADRECK MASASA (8) THE REGISTRAR OF DEEDS N.O. (9) GREEN APPLE (PRIVATE) LIMITED SUPREME COURT OF ZIMBABWE BHUNU JA, CHIWESHE JA & MUSAKWA JA HARARE: 22 & 30 JULY 2025 & 6 JANUARY 2026 T. W. Nyamakura, for the appellant F. Nyangani, for the first and second respondent S .M. Bwanya, for the third respondent No appearance for the fourth, fifth, sixth, seventh, eighth and ninth respondents MUSAKWA JA: This appeal arises from the judgment of the High Court (“court a quo”) delivered on 28 February 2025, in which it held that the appellant’s bid to rescind the judgment in HC 2755/17 had become moot. BACKGROUND FACTS The appellant is Norwich Trading (Pvt) Ltd, a private limited liability company duly incorporated and existing under the laws of Zimbabwe. The first respondent is Nyasha Muzavazi, an adult male, whose address is unknown. The second respondent is Nathan Mnaba an adult male, residing at 315 Carrick Creagh Road, Glen Lorne, Borrowdale, and Harare. The third respondent is Astrodome Enterprises (Pvt) Ltd, a company duly registered and incorporated in accordance with the laws of Zimbabwe. The fourth respondent is Stanbic Bank Zimbabwe Limited, a banking institution duly registered and regulated under the Banking Act [Chapter 24:20]. The fifth respondent is Charmaine Lees, an adult female, domiciled at 431 Wheldon Avenue, Helensvale, Harare. The sixth respondent is Kodjotse Sabiri, an adult, also domiciled at 431 Wheldon Avenue, Helensvale, Harare. The seventh respondent is Shadreck Masasa, an adult male, residing at 178 Block 15, Willowvale Flats, Harare. The eighth respondent is the Registrar of Deeds N.O., vested with the statutory duty to the register, manage, and maintain immovable property records in Zimbabwe in terms of the Deeds Registries Act [Chapter 20:05]. The ninth respondent is Green Apple (Pvt) Ltd, a private limited liability company duly incorporated under the laws of Zimbabwe Mahendra Savania and his wife, Nighert Savania, each held an equal 50% shareholding in the appellant. The appellant’s sole asset was Stand 750 Greystone Township 10 of Greystone A, commonly known as 750 Gaydon Road, Greystone Park, Harare (“the property”). Mahendra Savania passed away in 2010, survived by his wife and their three children, who together stood as beneficiaries of his estate. Before executorship was ever conferred, the appellant encountered the second respondent in mid-2011. He expressed interest, not merely in the shareholding of the company, but in the property itself, which by that time stood dormant. Negotiations ensued and on 10 October 2011, the parties set pen to paper, recording a written agreement in terms of which Nighert Savania purported to sell the entire issued shareholding of the appellant to the second respondent for US$380 000.00, payable in instalments. The second respondent took occupation of the property swiftly yet, only US$250 000.00 was ever tendered, leaving a balance of US$130 000.00 outstanding. After notices to remedy the breach went unanswered, Nighert Savania cancelled the agreement and sought eviction, holding-over damages, and confirmation of ownership through rectification of the company’s records in HC 9654/13. Also claimed was retention of the money already paid and the cancellation of a fraudulent Form CR 14 submitted by the second respondent, alleging that he lawfully removed Nighert Savania and her late husband as directors of the appellant despite lacking any legal standing, as he was neither a shareholder nor a director. Conversely, the second respondent admitted to the agreement but claimed that Nighert Savania had contributed to his breach by undermining his business. He later disavowed the written contract, relying on an alleged oral agreement granting him ownership based on part payment. He also argued that Mrs Savania lacked the authority to sell shares belonging to her late husband's unregistered estate. Claiming majority shareholding, he asserted that, under s 126 of the Companies Act [Chapter 24:03], he was entitled to convene a meeting and alter the appellant’s directorship. On locus standi, the court a quo per, Mathonsi J (as he then was), found that the second respondent’s position was self-defeating because on one hand he claimed rights from an agreement with Nighert Savania, yet on the other hand, he denied her the power to enforce it. It found that she signed the contract, handed over the keys, and remained a director despite his unlawful, contested attempt to remove her. Therefore, her standing was clear. On the merits, the court a quo found that the second respondent had acted dishonestly and in bad faith. It held that the share sale agreement was void ab initio, for unlawfully disposing of estate shares without authority or registration. The second respondent’s belated claim of an oral agreement was dismissed as a fabricated afterthought, inconsistent with the pleadings and unsupported by evidence. The court concluded he was never a lawful shareholder or director and had no right to alter company records or occupy the property. Accordingly, on 7 November 2018 in judgment HH 730/18, the court ordered the second respondent’s eviction, cancellation of the fraudulent C.R. 14 form, and awarded holding-over damages, condemning his conduct as exploitative and unworthy of indulgence. On 22 March 2021, the appellant found the locks forcibly replaced and the third respondent in occupation, claiming to have purchased the property in March 2019 pursuant to a consent order issued by Mushore J on 17 August 2018 under HC 2755/17 in favour of the fourth respondent for loan arrears. Unbeknown to the appellant, the first and second respondents had used the cancelled C.R. 14 to secure a loan from the fourth respondent, which they later defaulted on, leading to the court-sanctioned sale of the property. Under the order granted by Mushore J, the “appellant”, represented by the first and second respondents, was directed to pay US$200 126.50, and the property was declared executable, with its sale by private treaty authorised within 60 days. Acting on that order, the first and second respondents purported to sell the property to the third respondent on 21 March 2019, with the proceeds used to settle the loan obtained. PROCEEDINGS IN THE COURT A QUO Discontented with the judgment per Mushore J, the appellant instituted proceedings seeking rescission of the judgment under r 449 of the High Court Rules, 1979, and at common law, together with a declaratory order and ancillary relief. It asserted that the judgment was obtained through fraudulent means. It sought to set aside the sale agreement with the third respondent, declare the deed of hypothecation in favour of the fourth respondent null and void, and confirm that the first and second respondents had never held any position in the appellant. A permanent interdict was also sought to bar them from acting or transacting as directors or shareholders. The appellant argued that the second respondent fraudulently concealed the parallel proceedings before Mushore J in HC 2755/17 while HC 9654/13 was still pending before Mathonsi J (as he then was). It further contended that the second respondent was not a member of the appellant, as he failed to pay the full purchase price and was never issued a share certificate, and thus could not lawfully claim shareholder status. The appellant contended that the parallel proceedings before Mushore J were never disclosed to Mathonsi J (as he then was). The appellant argued that any title deed executed at their instance was a forgery aimed at nullifying the earlier judgment. Per contra, the first respondent maintained that the appellant, by withholding the sale of the property to Faramatsi (Pvt) Ltd in January 2021, approached the court with unclean hands, attempting to undo an order it had itself flouted. The second respondent opposed the application, raising preliminary objections including res judicata and lack of cause of action. He further argued that the appellant knowingly concealed the sale of the property to Faramatsi (Pvt) Ltd on 28 January 2021, despite being aware of an existing court order by Mushore J. In doing so, the appellant approached the court with dirty hands, having disregarded the very order it sought to have rescinded. Substantively, he argued that Mathonsi J (as he then was) had not invalidated the sale agreement but merely restored the status quo prior to his claimed shareholding. He maintained that he and the first respondent were rightful directors and occupants of the property, and that the judgment by Mathonsi J (as he then was) only set aside their directorship, not the underlying agreement. DECISION A QUO The court a quo found that the first respondent failed to disclose the parallel proceedings in HC 9654/13 before Mathonsi J (as he then was), thereby misleading the court in HC 2755/17 into granting an order inconsistent with an existing judgment. It held that Mushore J’s order was thus improperly obtained. The court a quo found that the January 2021 sale raised doubts about the appellant’s standing, as clause 4 transferred risk and benefit to a third party, potentially divesting the appellant of any interest in the property. It further held that the sale was in violation of the court order issued by Mushore J. It also found that the 2021 sale agreement violated the extant order by Mathonsi J (as he then was) and reaffirmed that a judgment obtained through fraud cannot be protected by res judicata. However, it noted that the appellant had absolved the fourth respondent of wrongdoing regarding the execution of the property to a third party. Since the fourth respondent was no longer a party to the proceedings, the court concluded that granting declaratory relief would amount to a brutum fulmen, rendering the matter moot. It accordingly dismissed the application. Undeterred by this unfavourable decision, the appellant noted the present appeal on the following grounds: GROUNDS OF APPEAL Upon correctly determining that the consent order granted by Justice Mushore on 17 August 2018 was issued under circumstances involving fraud and non-disclosure, the High Court erred in not recognising its duty to set aside the order and require the beneficiaries to relinquish any benefits obtained from it. A fortiori, the High Court purported to exercise a discretionary power to refuse rescission of default judgment in the circumstances, where such discretion does not exist in our law, based on the prior finding in respect of the circumstances of the Mushore J’s judgment. The court erred and misdirected itself in failing to apply the authorities from this Honourable Court that establish that once cause has been shown under the old rule 449 now r 29 of the High Court Rules, 2021, a Court must rescind judgment. The court erred in proceeding under the incorrect factual basis that the appellant had absolved the fourth respondent from liability whereas, in fact, and in truth, the appellant only withdrew para 4 of its draft order, while the fourth respondent pleaded no contest to the relief sought by the appellant. The court a quo erred and misdirected itself in concluding that the granting of the rescission sought by the appellant would amount to a brutum fulmen on the wrong and unpleaded basis that the matter before it was moot. The court a quo erred and, in any event, in failing to find as it should have, that the sale agreement dated March 2019 relied upon by the third respondent was void as: (a). It was done in violation of the order by Mushore J dated 17 August 2018 and (b). It was void for want of authorisation by the appellant, considering the import of the extant judgment by Mathonsi J in HH 730/18. The court a quo erred and misdirected itself in failing to consider the import of the extant judgment by Mathonsi J in HH 730-18, to the relief sought by the appellant in the proceedings a quo. PROCEEDINGS BEFORE THIS COURT Counsel for the appellant, Mr Nyamakura, submitted that once the court a quo found that the judgment of Mushore J had been procured through fraud or misrepresentation, it no longer retained any discretion to refuse rescission. Relying on Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S), he argued that a judgment obtained through fraud is a nullity and cannot stand. Mr Nyamakura further contended that the second respondent had unlawfully consented to the impugned judgment despite the prior finding of Mathonsi J (as he then was) that he was never a shareholder in the appellant and had fraudulently lodged a C.R.14. It followed, so the submission went, that any agreement predicated upon that judgment was equally void. Mr Nyamakura submitted that the Registrar of Deeds confirmed that the property remains registered in the appellant’s name and that the report is part of the record. Therefore, he contended that the third respondent could not claim ownership under Mushore J’s judgment and simultaneously disassociate himself from the present proceedings. Citing Securiforce v Ruiters 2012 (4) SA 252 (NCK), he argued that rescission nullifies all acts stemming from the irregularity. Further, if the third respondent believed that Faramatsi (Pvt) Ltd acquired the property, it could have sued them. Counsel stated that currently, there was no legal relationship between the appellant and Faramatsi (Pvt) Ltd. Per contra, Mr Nyangani, for the first and second respondents, contended that no live dispute remained, as the appellant had expressly exonerated the fourth respondent. He further submitted that the appellant had, after judgment, sold the property, thereby divesting itself of any legal interest. Mr Nyangani also argued that the issue of title was immaterial, as the appellant had already entered into an agreement of sale with Faramatsi (Pvt) Ltd, thereby divesting its interest in the property regardless of whether or not transfer was effected. Finally, he contended that the appellant thus lacked a bona fide defence to the rescission application and the present appeal. Counsel for the third respondent, Mr Bwanya, argued that, as it had not been a party to the proceedings before Mushore J, it could not properly be cited in a rescission application. He asserted that the appellant’s express exoneration of the fourth respondent demonstrated that no fraud was attributable to the third respondent and that the appellant was wrongly directing its efforts against parties who were not implicated in the alleged wrongdoing. In response to the Court’s enquiry whether the fourth respondent could benefit from fraud, counsel maintained that the fourth respondent had acted throughout in good faith and that any fraud was confined to those directly involved in procuring the impugned judgment. In reply to the submissions by the opposing parties, counsel for the appellant submitted that the joinder of the third respondent was proper, as its rights would be affected by any rescission. When asked what recourse the appellant had against the third respondent, counsel referred to Nzara & Ors v Kashumba N.O. & Ors 2018 (1) ZLR 194 (S) at p 204, arguing that a plea of innocence by a third party is not a defence to the setting aside of tainted rights, and that rights acquired through fraud cannot be retained. Addressing the alternative remedy of damages proposed by the first and second respondents, counsel insisted that an owner unlawfully deprived of property remains entitled to vindicate it, as real rights take precedence over personal rights. ISSUE FOR DETERMINATION As the submissions unfolded, it became clear that the dominant issue for determination before this Court is contingent upon whether or not the court a quo misdirected itself in dismissing the appellant’s application for rescission. ANALYSIS The salient facts are these: the court a quo, per Mathonsi J (as he then was), ordered the eviction of the second respondent, directed him to pay holding-over damages, and cancelled the C.R.14 filed by the first and second respondents, restoring the prior one reflecting Nighert Savania and her late husband, Mahendra Savania, as directors. That judgment remains extant and binding. Yet, despite this, the first and second respondents consented to a judgment before Mushore J while fully aware that their claim to control the appellant and the property was still before Mathonsi J. It was this duplicity that prompted the appellant to seek rescission of the judgment of Mushore J on the ground of fraud. Nevertheless, the court a quo deemed the matter moot, notwithstanding the evident deceit and the incontestable fact that the property remained registered in the appellant’s name. Rescission ought to have followed as a matter of course. For at the centre of the appellant’s grievance stands a clear fact that the property never slipped from its grasp and never migrated into another’s estate but endures in the public registers as its lawful dominion. That alone demonstrates that the matter cannot be regarded as moot, because as the legal owner the appellant retains the right, indeed, the duty, to vindicate its title and to secure redress against any party who falsely claims control or title over it. From a legal standpoint, ownership of immovable property confers the right to recover possession from any person who holds or occupies the property without legal justification, also known as rei vindicatio. This doctrine has been upheld in Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 226 (H) at 236 E and 237 D-E (which are aptly captured in the headnote), wherein Makarau JP (as she then was) remarked: “The actio rei vindicatio is found in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to protect his property that, at law, he is entitled to recover it wherever it is found and from whomsoever is holding it, without alleging anything further than that he is the owner and that the defendant is in possession of the property. Thus, it is an actio in rem, enforceable against the world at large. There are no equities in the application of the actio rei vindicatio. Thus, in applying the principle, a court may not accept and grant pleas of mercy or for extension of possession of the property by a defendant against an owner for the convenience or comfort of the possessor, once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits of no discretion on the part of a court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.” Similarly, in Graham v Ridley 1931 TPD 476, the following was said about actio rei vindicatio: “It may be difficult to define comprehensively but there can be little doubt that one of its incidences is the right of exclusive possession of the res without the necessary corollary that the owner may claim his property wherever found from whomsoever holding it. It is inherent in the nature of ownership that possession should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner.” Ownership in its fullest sense carries with it the real right of exclusive control, use, and enjoyment. Embedded within that right is the classical remedy of rei vindicatio, available to an owner seeking restoration of property from any party that holds or interferes with it without lawful justification. Once ownership is proved, the law imposes no further burden upon the vindicating owner other than to show that the respondent is in possession or exerting unlawful control; the entitlement to relief then flows as of right. It is an incontestable fact on the record that the appellant is the registered owner of the property in dispute. The first and second respondents, who were fully aware that they had no cognisable proprietary or judicially recognised interest in the property, nonetheless consented to its execution in a manner that can only be described as clandestine and irregular. Their conduct subverted the fundamental principle that execution may only be levied against the property of a judgment debtor, and even then, strictly within the confines of the law. By orchestrating or acquiescing in the execution of property belonging not to themselves but to the appellant, the respondents acted ultra vires and in manifest contravention of established legal norms governing execution processes. The judgment of Mushore J stands as a stark departure from both substantive and procedural justice. In overlooking the appellant’s unimpeachable title, it effectively endorsed an unlawful deprivation of proprietary rights. Such a judgment cannot stand in a legal system committed to the protection of ownership and the rule of law. More critically, it infringed upon the appellant’s constitutionally and legally protected right to control, enjoy, and vindicate its property. In these circumstances, the appellant maintained, with firm and reasoned conviction, that once fraud had been established, the court was stripped of any residual discretion and was duty-bound to rescind the impugned order. The logic of this position is compelling. A judgment founded upon fraud is but a distorted order that cannot be permitted to subsist. The authors, Herbstein and Van Winsen, in The Civil Practice of the High Court, 5th ed, Volume 2, at p 939, state that: “A judgment procured by fraud of one of the parties, whether by forgery, perjury, or any other way such as the fraudulent withholding of documents, cannot stand.” Likewise, as Lord Denning aptly stated in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712: “No court on this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.” These words ring with resonance in the context of fraud. A judgment procured through dishonest means is more than irregular: it is void ab initio. It was insufficient for the court a quo merely to acknowledge the taint of fraud, but rather it was enjoined to act upon it. The court a quo was under a strict and unavoidable obligation to grant the rescission of the judgment. Once it was established that Mushore J’s order had the effect of extinguishing or impairing the rights of a party who had neither been properly heard nor lawfully divested of its property, rescission was not merely permissible, it was imperative. We find no course more faithful to law and conscience than to honour the appellant’s registered real rights as proprietor of the property, and to let the present appeal find its rightful success. DISPOSITION In the end, the resounding dispositive truth is this: the property has never strayed from the appellant’s name, and with that immutable fact comes its full and unfettered right to reclaim the property from any hand seeking, unlawfully, to strip it of that sacrosanct mantle of ownership. The appellant has not lost its ownership merely because a judgment was granted to dispossess it; title does not yield to injustice, nor does ownership evaporate under the shadow of a fraudulent decree. It was a grave error procured by fraud for the court a quo, per Mushore J, to divest the appellant of its property without its consent or knowledge. It was graver still that the property was rendered executable for a debt incurred by persons who were never its lawful owners. In the face of such manifest injustice, we discern no cognizable reason why a judgment sanctioning it should be permitted to stand. Accordingly, it is hereby ordered as follows: 1. The appeal be and is hereby allowed with costs. The judgment of the court a quo be and is hereby set aside and substituted with the following: “1. The application for rescission be and is hereby granted. 2. The judgment of the High Court in case number HC 2755/17 be and is hereby set aside in its entirety.” BHUNU JA : I agree CHIWESHE JA : I agree Gill, Godlonton & Gerrans, appellant’s legal practitioners. Nyangani Law Chambers, first and second respondents’ legal practitioners. Jiti Law Chambers, third respondent’s legal practitioners.