RUFARO MARKETING (PVT) LTD & Another v KANDRICK INVESTMENTS (74 of 2026) [2026] ZWHHC 36 (28 January 2026)

7 HH 74-26 HCH 714/25 Ref: HCH 710/25 Ref: HCH 325/25 Ref: HCH 199/25 RUFARO MARKETING (PVT) LTD and ZEBRA SHOPPING MALL (PVT) LTD versus KANDRICK INVESTMENTS HIGH COURT OF ZIMBABWE **MANYANGADZE J** HARARE, 8 July 2025 & 28 January 2026 **Opposed Matter** _A. Ndlovu_ _,_ for the 1st Applicant _R. Mabwe_ _,_ for the 2nd Applicant _R. T Mutero,_ for Respondent MANYANGADZE J: _**INTRODUCTION**_ This is an opposed application for the rescission of a default judgment granted by this Court on 10 February 2025 under Case No. HCH 199/25, in favour of the respondent, Kendrick Investments (Pvt) Ltd. The judgment enforced what the respondent termed a “compromise agreement” allegedly concluded between the parties in respect of certain commercial premises. The applicants had filed separate applications, under HCH 710/25 and HCH 714/74/25. Since the relief sought was the same, arising out of the same facts, the two applications were consolidated by an order of this court dated 10 June 2025, granted under Case No. HCH 710/25, per wamambo J. For purposes of the consolidated application, the applicant under HCH 714 becomes the first applicant, and the applicant under HCH 710/25 the second applicant. The first applicant, Rufaro Marketing (Pvt) Ltd, seeks rescission on the basis that the judgment was granted in its absence through no wilful conduct on its part, that it was never made aware of the proceedings under HCH 199/25, and that the purported compromise agreement is vigorously disputed. The second applicant seeks rescission on the basis that it was not made a party to a case whose outcome substantially affected its rights. The respondent vehemently opposes the application, raising both preliminary and substantive challenges. _**FACTUAL BACKGROUND**_ The respondent instituted proceedings in HCH 199/25 seeking, among other things, to enforce a compromise agreement purportedly signed by one Mr. Juma Ulete on behalf of the applicant. The alleged compromise required the applicant to deliver vacant possession of the premises to the respondent. According to the Certificate of Service, the application was served on 20 January 2025 at the applicant’s place of business on one Michelle Mutolilo, described as a receptionist. The applicant’s case is that Ms. Mutolilo became ill on the afternoon of the service and never transmitted the documents to management. She denies recollection of the service and could not later locate the documents. Consequently, the applicant did not oppose the application, and judgment was granted by default. The applicant only became aware of the existence of the default judgment after being served with related proceedings under HCH325/25, prompting the present application. _**PRELIMINARY ISSUES:**_ The respondent has raised three points _in limine_. These are that; 1. The applicants failed to attach the court order being challenged 2. The applicant must apply for upliftment of bar 3. The deponent to the founding affidavit has no valid authority Preliminary points (i) and (ii) were raised at the hearing of the mater. They do not appear in the respondent’s written submissions. Only preliminary point (iii) appears in the written submissions. _**Failure to attach a court order**_ This point _in limine_ affects both applicants. The respondent avers that the applicants ought to attach the default judgment in question to their application. Failure to do so invalidates the application. Mr _Mutero_ , for the respondent, contended that the court cannot set aside a judgment that is not before it. In countering the respondent’s averments, Mr _Ndlovu_ , for the applicant, pointed out that the default judgment in question was granted in HCH 199/25, which record is referred to in the founding affidavit, and incorporated into the proceedings _in casu._ The court has access to its records of proceedings. Mr _Ndlovu_ further challenged the respondent to point to any law that requires that the order or default judgment be attached. In my view, failure to attach the court order or default judgment concerned is not fatal to the application for rescission of the judgement. It is clearly known from which case the default judgment arises. The case has been referred to in the founding papers and has thus been incorporated into the record. Mr _Mutero_ , on behalf of the respondent, referred the court to the case of _Makoni v Makoni_ HH 65/24. It seems to me counsel did not read that case well. Far from buttressing the respondent’s point, it instead supports the applicants’ position. The court held that failure to attach the court record is not fatal, as long as it is referred to in the application. KATIYO J stated, at p 11: “In the rush to prepare and file the urgent chamber application, counsel mistakenly attached the wrong order attached to the application. During oral submissions, applicant's counsel acknowledged the omission to attach the correct court order and apologized to the court. The infraction, while totally regrettable does not have the effect of invalidating the entire application. _In other words, the failure to attach a document to an application is never visited with the consequence of invalidity of the application. In the founding affidavit, applicant clearly refers to the correct court order_ as follows:……..” (underlining added for emphasis) In the circumstances, I find no merit in this preliminary point. It is accordingly dismissed. _**Upliftment of bar**_ This point was directed at the first applicant. The respondent averred that the applicant must apply for upliftment of bar in the matter in which default judgment was granted. It contended that the right to file a notice of opposition is conditional upon being granted leave to defend. In response, the applicant averred that the preliminary point is ill taken and convoluted. Once a default judgment is granted, the only recourse open to the applicant is an application for rescission of judgment. The respondent has not shown on what basis the applicant is barred. In my view, the application for rescission of judgment is properly before the court. Again, this preliminary point lacks merit and is hereby dismissed. _**Invalid authority**_ This point relates to the first applicant. The respondent argued that the board resolution attached to the founding affidavit is invalid as it pre-dates the cause of action and grants “blanket authority”, thereby failing to meet the requirements set out in _Madzivire v Zvarivadza & Ors_ 2006 (1) ZLR 514 (S), _Dube_ v _Premier Service Medical Aid Society_ SC 73/19, _Beach Consultancy_ v _Makonya_ HH 696/21, and _Leechiz Investments v CABS_ HH 259/23. The principle from these authorities is that a company must authorise its participation in specific litigation and a mere general resolution that does not show board awareness of the specific dispute is inadequate, where authority is challenged. The applicant produced a further resolution in the answering affidavit expressly authorising the deponent and ratifying the institution of these proceedings. This was placed before the Court in direct response to respondent’s challenge. The law is clear: where authority is challenged, proof may be supplied through a subsequent resolution so long as it demonstrates that the company is aware of and adopts the proceedings. See _Madzivire, supra_. The supplementary resolution cures any alleged defect in the initial one. The challenge must therefore fail. Accordingly, the preliminary objection is dismissed. All the preliminary points having been dismissed, I must proceed to deal with the merits of the application. _**THE LAW ON RESCISSION**_ In an application of this nature the applicable provision is Rule 27(1) of the High Court Rules, 2021, which empowers the court to rescind a judgment granted in default where the applicant shows good and sufficient cause. It reads: “**27\. Court may set aside judgment given in default** (1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside. (2) If the court is satisfied on an application in terms of subrule (1) that \there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.” Further,_Stockil_ v _Griffiths_ 1992 (1) ZLR 172 (S) established the classic factors for a rescission of judgment to be granted: (a) Reasonable explanation for the default (b) _Bona fides_ of the application (c) A defence on the merits carrying prospects of success These factors must be considered both individually and in conjunction with one another. In _Mdokwani_ v _Shanhiwa_ 1992 (1) ZLR 269 (S) the court stated that the factors to be taken into account by a court in an application for rescission of judgment were stated in _G D Haulage (Pvt) Ltd_ v _Mumurugwi Bus Services (Pvt) Ltd_ 1979 RLR 447 (A) at 455 B-G where it was stated that although there are no precise rules limiting or regulating what matters the court may take into account in deciding whether the applicant has shown the existence for such relief of good and sufficient cause in terms of r 63, the court will normally take into account: (a) the applicant’s explanation of his default (b) the _bona fides_ of the application to rescind the judgment and (c) the _bond fides_ of the applicant’s defence on the merits of the case, and the court will normally consider these matters in conjunction with each other and cumulatively.__ __**Issue for Determination**__ Whether or not the requirements for rescission of judgment have been met. __**Analysis and application of the law**__ _[a] Reasonable Explanation for the Default_ The applicant has placed before the court a plausible, reasonable and non-wilful explanation for its failure to oppose the proceedings that culminated in the default judgment under HCH 199/25, now sought to be rescinded in HCH 714/25. From the record, service of the originating application was allegedly effected on a receptionist, Michelle Mutolilo, who is said to not have brought this to the attention of the 1st applicant. The applicant insists that it was not served and was only made aware by the 2nd applicant. Crucially, there is no evidence that the applicant’s responsible officers or decision-makers had actual knowledge of the proceedings prior to judgment. The applicant only became aware of the matter later, upon being served with a joinder application in related proceedings, at which point it acted promptly by filing for rescission. Our courts have consistently held that wilful default arises only where a litigant, with full knowledge of proceedings and consequences, deliberately elects not to act. That is not the case here. The explanation aligns closely with the facts in _Zimbabwe Banking Corp Ltd v_ ___Masendeke_ 1995 (2) ZLR 400 (S), where rescission was granted despite technical service because the papers never reached responsible officials. Accordingly, the default was neither deliberate nor reckless, but the result of an internal administrative mishap, which constitutes a reasonable explanation within the meaning of _Stockil v Griffiths_ , _supra._ _[b]___Bona Fides__ _of the Application_ The _bona fides_ of the present application are demonstrated by the applicant’s prompt, transparent and procedurally correct conduct once it became aware of the judgment. First, the application was brought within the time limits prescribed by Rule 27 of the High Court Rules, 2021, evidencing seriousness and diligence. Secondly, the Applicant did not merely rely on bare assertions but supported its case with: [a]A founding affidavit; [b]Supporting affidavits, including that of Juma Ulete; [c]Documentary annexures such as the BOT Agreement, lease agreements, and prior court orders; and [d]comprehensive heads of argument engaging both facts and law Thirdly, the applicant has not approached the court for delay or abuse of process. On the contrary, it seeks to be heard on the merits in circumstances where a judgment was granted in its absence on a contested and legally complex dispute involving alleged compromise agreements, disputed signatures, and third-party rights. There is thus no evidence of mala fides, dishonesty, or opportunism. The application is a genuine attempt to correct a procedural injustice and falls squarely within the indulgence envisaged by rescission jurisprudence. _[c] Defence on the Merits Carrying Prospects of Success_ The applicant has disclosed a substantive, _bona fide_ defence which is far from illusory and plainly carries reasonable prospects of success. _(i)___Disputed Compromise Agreement__ A central foundation of the default judgment is a purported compromise agreement, which is seriously disputed. The deponent, Juma Ulete, avers that: [a]He never signed the compromise agreement; [b]He only signed a Build, Operate and Transfer (BOT) agreement; [c]The signed pages may have been unlawfully transposed onto the compromise document; and [d]He retains unsigned copies of the alleged compromise agreement in his possession This raises a material dispute of fact incapable of resolution on affidavit. Our law is settled that no rights can flow from a disputed agreement, and such a matter ordinarily calls for viva voce evidence or trial proceedings. (ii) __Third-Party Rights and Legal Impossibility__ The Applicant further shows that the property forming the subject of the compromise agreement is leased to a third party, whose rights: [a]Were determined in prior Magistrates’ Court proceedings; [b]Were confirmed on appeal; and [c]Were affirmed by the Commercial Division of the High Court The compromise agreement purportedly imposes obligations on this third party who was not a party to the agreement to give vacant possession. This offends the fundamental principle of privity of contract, as articulated in _Margret Tichareva_ v _Innocent Mutsetsema & 3 Ors_ (HC 4734 of 2007 HH 134 of 2018). A judgment that purports to extinguish or override established third-party rights is legally unsustainable and risks being a _brutum fulmen_ an order incapable of lawful enforcement. These defences are serious, weighty and legally cognisable, and unquestionably meet the _Stockil_ v _Griffiths_ threshold of a defence carrying prospects of success. _**DISPOSITION**_ From the foregoing, the applicants have satisfied all the requirements for the granting of a rescission of judgment. The applicants have clearly established good and sufficient cause and thus, in the interests of justice, fairness, and the right to be heard, the default judgment granted under HCH 199/25 ought to be rescinded, and the matter determined on its merits. This is the remedy desired by both applicants. In respect of the first applicant, the rescission will allow it to file its notice of opposition. In respect of the second applicant, it will pave the way for its joinder to HCH 199/25. To this end, the second applicant has filed an application for joinder, which is pending under HCH 325/25. **In the result, it is ordered that** : 1. The application be and is hereby granted. 2. The default judgment handed down on 11 February 2025 under Case No. HCH 199/25 be and is hereby rescinded. 3. The first applicant be and is hereby allowed to file its notice of opposition in Case No. HCH 199/25 within 10 days of the date of this order. 4. Each party bears its own costs. **Manyangadze****J:……………………………………..** _Tsunga Bamu Law International_ , first applicant’s legal practitioners _Lunga Mazikana Attorneys_ , second applicant's legal practitioners _Tabana & Marwa_, respondent's legal practitioners