APOSTOLIC FAITH MISSION OF ZIMBABWE v APOSTOLIC FAITH MISSION IN ZIMBABWE and Others (369 of 2025) [2025] ZWHHC 369 (25 June 2025)

6 HH 369-25 HCH 142/25 Ref HCH 1515/23 APOSTOLIC FAITH MISSION OF ZIMBABWE versus APOSTOLIC FAITH MISSION IN ZIMBABWE (1) and EDWARD WARD (2) and YAFETI WARD (3) HIGH COURT OF ZIMBABWE **DEMBURE J** HARARE: 13 & 25 June 2025 **Opposed Application** _Z Mazhetese_ for the applicant _B Magogo_ with him _E E Homera_ for the 1st respondent No appearances for the 2nd and 3rd respondents DEMBURE J: _**INTRODUCTION**_ [1] This is an application for rescission of judgment. The application is made in terms of rule 29(1)(a) as read with subrule (2) of the High Court Rules, 2021. The impugned judgment is a judgment entered by consent on 18 October 2024 before Katiyo J in Case No. HCH 1515/23. In that judgment, the applicant was not a party to the proceedings. The parties were the first respondent, which was the plaintiff and the second and third respondents, who were the first and second defendants. The court granted summary judgment in the matter and ordered the second and third respondents and all those claiming occupation through them to vacate stand 35 Jennifer Way, Waterfalls, Harare held under Deed of Transfer 2797/82 within seven (7) days of the date of the court order failure of which the Sheriff was ordered to evict them. [2] This application was only opposed by the first respondent. _**FACTUAL BACKGROUND**_ [3] The applicant, Apostolic Faith Mission of Zimbabwe, is an ecclesiastical organisation formulated as a common law _universitas_. The first respondent, Apostolic Faith Mission in Zimbabwe, is also an ecclesiastical organisation regarded as a common law _universitas_. It exists as a separate organisation from the applicant, although they are both affiliated with the Apostolic Faith Mission International. The second and third respondents are adult individuals. The second respondent was an employee of the first respondent before his employment was terminated. [4] It is common cause that on 7 March 2023, the first respondent had summons issued in Case No. HCH 1515/23 against the second and third respondents seeking their eviction and all those claiming occupation through them from stand No. 35 Jennifer Way, Waterfalls, Harare (_“the property”_), payment of City of Harare rates in the sum of $133,118.58, payment of holding over damages at the rate of US$250.00 or the Zimbabwean dollar equivalent at the interbank rate applicable on the date of payment with effect from 1 October 2021 and costs of suit on a legal practitioner client scale. This came after the first respondent had withdrawn an earlier action filed in the Magistrates Court following a special plea for lack of jurisdiction raised by the defendants. The defendants contested the action. [5] On 31 August 2023, the first respondent filed a court application for summary judgment. Again, the application was opposed by the second and third respondents. On 18 October 2024, this court, before Katiyo J, issued a judgment by consent in respect of the court application for summary judgment. The first respondent was represented by Mr _Magogo_ , its counsel in this case, while the second and third respondents were represented by C. W. Gumiro. The court order reads as follows: “IT IS ORDERED BY CONSENT THAT: 1. Summary judgment in case number HC1515/23 be and is hereby granted. 2. The Respondents and all those who are claiming occupation through them be and are hereby ordered to vacate stand number [3]5 Jennifer Way, Waterfalls Harare, held under Deed of transfer number 2797/82 in the name of the Applicant, within seven days of the service of this order, failure the sheriff be and is hereby ordered to cause the eviction of the respondents and all those claiming occupation through them. 3. Each party shall bear its own costs.” The said consent order is the judgment the applicant seeks to be set aside in terms of rule 29(1) of the court rules. [6] It is also common cause that the court, at the instance of the applicant, stayed execution of the order pending the determination of this application for rescission of the order. [7] On 14 January 2025, the applicant approached this court with the instant application premised on rule 29(1)(a) as read with subrule (2) of the court rules. The applicant alleged that the court order was erroneously sought or granted in its absence and that it is affected by the judgment. The applicant’s case was that it was not a party to the proceedings leading to the court order by consent of 18 October 2024, and the judgment was granted in its absence. The applicant averred that the first respondent now seeks to evict it using the said court order, despite that the applicant is not cited therein and was not a party to those proceedings. [8] It was further stated that the applicant has a direct and substantial interest in the matter and ought to have been a party thereto. It also alleged that the applicant became aware of the existence of the court order on 13 January 2025 after the sheriff “served us” with the court order and the writ of execution. I hasten to say that it was not stated in the founding affidavit as to who exactly was served since the applicant is only a juristic entity. It was further pleaded that what is apparent from the court order is that the applicant is being evicted from the said property because it is allegedly in occupation through the second and third respondents. It was averred that this is incorrect. [9] The applicant stated that it has no relationship with the second and third respondents and does not derive any authority to occupy the property from them. The applicant further averred that it was once one organisation with the first respondent, which split into two and that they share occupation and usage of many other properties. The applicant also stated that it was “never an employee (_sic_) or a tenant of the first respondent”. It was also submitted that the first respondent cunningly avoided citing the applicant in the eviction proceedings. It was said that the applicant occupied the main house while the second respondent took occupation of the cottage. It has been in occupation of the property for close to four years, and the first respondent was aware of that. [10] The applicant’s case is further that the second respondent, in his plea, stated that he vacated the premises in December 2022. It was also averred that the property vests in the Trustees of the Time Being of the Apostolic Faith Mission in Zimbabwe and not the first respondent. The first respondent had no _locus standi_ to evict the applicant since the property is administered by the Trustees for the Time Being of the Apostolic Faith Mission in Zimbabwe. The principle of natural justice, in particular the _audi alteram partem_ rule, should apply, and the applicant ought to be afforded an opportunity to be heard before being evicted. The court order was granted in error and ought to be rescinded. [11] In its opposing papers, the first respondent contended that there was no error in the judgment of the court. It averred that the applicant had not been candid with the court. It is not correct that it has been in occupation of the first respondent’s property. It was argued that it cannot be disputed that the property is registered in the name of the first respondent and that the first respondent allowed the second and third respondents to reside on the property. They refused to vacate the premises and were given three months’ notice to do so after they had complained to the Rent Board. In their plea in the Magistrates Court action, they raised a special plea of lack of jurisdiction alleging that the house the second respondent was allocated as his employment benefit was valued over that court’s monetary jurisdiction limit of US$100,000. [12] When the action was withdrawn and filed in this court, the second and third respondents defended the matter and pleaded that they had vacated the property in December 2022. The first respondent noticed that the property was still occupied and filed an application for summary judgment. It was further pleaded that the second and third respondents consented to an order for their eviction to be granted. The first respondent further averred that it is the second and third respondents who are in occupation of the property, and that if the applicant made any arrangements with them, it has nothing to do with the first respondent. The applicant was formed by disgruntled members of the first respondent in 2022. The two organisations are separate and do not share properties. The first respondent has no knowledge of the applicant ever occupying its property. The applicant did not show how it took occupation of the property four years ago. It did not demonstrate any relationship with the trustees of the first respondent. The property is not in the name of the trust. The first respondent sought the dismissal of the application with costs. _**SUBMISSIONS FROM THE PARTIES**_ _**APPLICANT’S SUBMISSIONS**_ [13] Ms _Mazhetese_ , for the applicant, submitted that the application before the court is for rescission of judgment erroneously sought or granted. She argued that the applicant is affected by the judgment as the applicant is the one sought to be evicted from the property in a matter where the applicant was never served with the summons. Counsel further submitted that by and large she stood by the papers filed of record, except to emphasise one or two issues. She further stated that the matter is simple. The court should determine whether or not the applicant is in occupation through the second respondent and if it has the right to be heard. The judgment was erroneously sought or granted. [14] It was further argued that from the facts, the applicant was one organisation with the first respondent. When the court queried how it can be said that the applicant and the first respondent was one body given the split and formation of a new church in the name of the applicant following the Supreme Court judgment in SC 67/21, counsel retreated and admitted that there was only one organisation, the first respondent, which had members who then formed the applicant. She further argued that the members were always in occupation of the property and remained in occupation. The applicant exists through its members, and the applicant is there through its members. Whoever is there is there through its members. [15] Ms _Mazhetese_ also submitted that when the applicant was formed, the applicant did not derive its occupation through the second respondent. The persons in occupation formed the applicant while they were there. In para 5 of the respondent’s opposing affidavit, the first respondent conceded that the applicant was formed by disgruntled members of the first respondent and that there were numerous court disputes. In rescission matters of this nature, if the court has been aware of another organisation that is in occupation, not through the second respondent, the court would have insisted that the applicant be made a party to the proceedings. The laws of natural justice demand that the applicant be afforded an opportunity to be heard before the eviction is ordered. The applicant is not in occupation of the property through the second respondent. The evidence from the plea filed by the second and third respondents and the affidavit of Overseer Johannes Nehanda attached to the application for summary judgment show that the applicant was in occupation of the property. _**FIRST RESPONDENT’S SUBMISSIONS**_ [16] Mr _Magogo_ , counsel for the first respondent, submitted that the Supreme Court judgment in _Munyimi v Tauro_ SC 41/13 establishes the test for this application in terms of rule 29(1). To determine the matter before the court, the issue is whether there are facts not brought to the attention of the court, which facts if brought to the court’s attention it would have precluded it from granting the order. [17] He further submitted that the applicant’s case brought two sets of facts, which it argued were not brought to the attention of KATIYO J when he granted the order and which would have precluded him from granting the order. The first set of facts is at p 12 of the founding affidavit, which is that the premises in issue were occupied by the applicant. The second set of facts, which appears at para 14 of the founding affidavit, is that the property in issue is actually owned not by the first respondent but by the trustees of the first respondent. These facts would not have precluded the court from granting the order, as they are contrived and hopelessly false. [18] On the issue of occupation, at p 3.5 of the answering affidavit, they make an impossible averment. They said they occupied the property when the applicant and the first respondent were one body. That is not only impossible but false. Mr _Magogo_ further argued that counsel conceded that prior to that, there was only one Apostolic Faith Mission in Zimbabwe. The applicant, as a juristic person, decides to approach the court under the affidavit by Dennis Mutungi. It does so on the basis that it is a juristic entity. It speaks through natural persons. If that were not so, the court would not have heard the matter. But the applicant, as it sought to recreate its case, does not favour the court with the names of its members or officials who are in occupation. The reason for that appears at p 41 of the record. The second and third respondents placed a plea before the court and stated that the house in question was allocated to him as an employment benefit, not part of it or a cottage. The plea was filed on 4 November 2022. The Apostolic Faith Mission in Zimbabwe leadership dispute was finalised in May 2021 in SC 67/21. [19] It was also submitted that the applicant had been formed at that time when the second respondent told the court that this is my house. He should have said he occupies a cottage. The same litigant, when sued in this court, denied being in occupation and highlighted that he had vacated in December 2022. That was contested on the strength of the affidavit from the Overseer. The matter was heard before KATIYO J. He appeared in that matter on behalf of the applicant in the said matter. The second respondent’s counsel had a torrid time sustaining that defence. The question he could not answer was if he had vacated did he give the keys to the first respondent. There was nothing to show that he had vacated other than his word. That led to a consent order. [20] Mr _Magogo_ further argued that in that entire litigation leading to that order, the second and third respondents never said that they occupied a portion of the house. The consent order was not an academic exercise, but it was a concession that his defence was found to be false. The first respondent gave occupation to the second respondent, and he consented to the eviction. He queried how the applicant came in. There is nothing before the court that would have precluded Katiyo J from granting the order. [21] Counsel submitted that the second issue is whether the property is owned by the trustees. At p 34, there is a title deed which shows that the first respondent holds title to the property. This court has taken the position that a title deed is the most serious evidence of title or ownership over a property. What the applicant then said when presented with this evidence was to argue that they share the properties. A party with a title is entitled to evict. It is simply not true that the property is vested in the trustees. The papers speak for themselves. The court made no error in ordering the eviction of the second and third respondents and all those in occupation through them. The application must be dismissed. [22] Mr Magogo also submitted that the dismissal must be accompanied by an admonitory order for costs. The applicant should be penalised with costs because with these papers and the evidence, it was apparent to a legal mind that the judgment was unsustainable. The applicant filed this application to delay the eviction of the second and third respondents and buy more time in a property that does not belong to them. They stopped an eviction through a stay order to deny the due rights that come with the property. They were warned by Mangota J in _Apostolic Faith Mission in Zimbabwe v Apostolic Faith Mission of Zimbabwe & Ors_ HH 269/22 to desist from this conduct. We have reproduced this in para 16 of the first respondent’s heads of argument. [23] It was further argued that the court should take notice that Dennis Mutungi, the deponent to the founding affidavit, was a litigant in his own right in the matter before Mangota J. The persons who signed the resolution, A. N. Chinyemba and C. A. Magwenju, were also respondents in the matter before Mangota J. The two gentlemen had raised frivolities regarding the property they knew was not theirs. Counsel made reference to p 109 of the judgment, which emphasises that the property remained with the first respondent. The deponent and Chinyemba and Magwenju were there and should have taken heed. The court must grant an order for costs on a higher scale. The application is frivolous and vexatious. The parties to the order do not want it to be set aside. The applicant must be penalised with an order for costs on a higher scale. _**APPLICANT’S REPLYING SUBMISSIONS**_ [24] Ms _Mazhetese_ , in reply, submitted that the matter before the court is not one for the determination of the merits of the main matter. It is an issue of the right to be heard and the _audi alteram partem_ rule. If the applicant does not have a defence, costs should be awarded in the main matter. There is no basis for punitive costs in the matter. The applicant has said it is in occupation. It is saying it was formed by disgruntled members and was in occupation together with the second and third respondents. Costs on a higher scale are not justified. Counsel finally argued that the applicant still insists that it ought to be heard, as there is no evidence that the applicant was brought to the property by an employee of the first respondent. _**ISSUE FOR DETERMINATION**_ [25] The sole question for determination by the court is whether the consent order was erroneously sought or granted. _**THE APPLICABLE LAW**_ [26] In terms of rule 29(1)(a) of the High Court Rules, 2021, this court may set aside a judgment or order that was erroneously sought or erroneously granted in the absence of a party affected thereby. This power may be exercised by the court _mero motu_ or upon an application by any party affected by the judgment or order. The said rule 29(1)(a) as read with subrule (2) reads: “**29\. Correction, variation and rescission of judgments and orders** (1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary— (a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or (b) … (c) … (2) Any party desiring any relief under this rule may make a court application on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.” [27] The law on the rescission of an order or judgment in terms of the said rule 29(1)(a) is settled. The legal position was enunciated in _Munyimi v Tauro_ 2013 (2) ZLR 291 (S) where GARWE JA (as he then was) had this to say: “Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of the proceedings in deciding whether a judgment was erroneously granted. The specific reference in rule 449 to a judgment or order granted “in the absence of any party affected thereby” envisages a situation where such a party may be able to place facts before the latter court, which facts would not have been before the court that granted the order in the first place – see _Grantually (Pvt) Ltd & Anor v UDC Ltd_ 2000 (1) ZLR 361(S), 364H – 365 A-B… The position may now be accepted as correct that a distinction should be drawn between a case where a court _mero motu_ decides to rescind or vary an order and one where such an order is sought on the basis of an application. In this connection I would agree with the remarks of JAFTA J in _Mutebwa v Mutebwa & Anor supra_ at p 201 A-H that: “… the error should appear on the record but only in cases where the Court acts _mero motu_ or on the basis of an oral application made from the Bar for rescission or variation of the order. For obvious reasons, in such cases the Court would have before it the record of the proceedings only. The same interpretation cannot, in my respectful view, apply to cases where the Court is called upon to act on the basis of a written application by a party whose rights are affected by an order granted in its absence. In the latter instance the Court would have before it not only the record of the proceedings but also facts set out in the affidavits filed of record. Such facts cannot simply be ignored and it is not irregular to adopt such a procedure in seeking rescission. In fact, it might be necessary to do so in cases such as the present, where no error could be picked up ex facie the record itself. In my view, the failure to show that the error appears on the record of the proceedings before Kruger AJ cannot constitute a bar to the applicant being successful under Rule 42(1) (a). It is not a requirement of the Rule that the error appear on the record before rescission can be granted. Therefore, I do not, with respect, agree with Erasmus J’s conclusion that the Rule requires the applicant to prove the existence of an error appearing on the record and that the Court considering rescission is, like an appeal Court, confined to the record of the proceedings. The Rule reads as follows: “42(1) The Court may, in addition to any other powers it may have, _mero motu_ or upon the application of any party affected, rescind or vary – (a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby…” There is nothing in the language used in the Rule which indicates that the error must appear on the record of the proceedings before the power conferred could be exercised. The contention that the Rule is confined to cases where the error appears on the record cannot, in my opinion, be correct. Such an interpretation places an unwarranted limitation on the scope of the Rule. Decided cases show that relief may be granted under this Rule if: (i) the Court which made the order lacked competence to do so; (ii) at the time the order was made the Court was unaware of facts which, if then known to it, would have precluded the granting of the order; or (iii) there was an irregularity in the proceedings. See _Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others_ 1996 (4) SA 411 (C) at 417G-I and the authorities referred to therein.” [28] If the court holds that there was an error or that the order was erroneously sought or granted, that is the end of the enquiry. The judgment or order must be set aside without further ado. The issue of the _bona fides_ of the applicant’s defence on the merits of the main claim is irrelevant. This legal position was also confirmed by the Supreme Court in the _Munyimi_ case, _supra,_ where Garwe JA (as he then was) stated that: “Further it is also established that once a court holds that a judgment or order was erroneously granted in the absence of a party affected, it may correct, rescind or vary such without further inquiry. There is no requirement that an applicant seeking relief under r 449 must show “good cause” – _Grantually (Pvt) Ltd & Anor v UDC Ltd_, supra at p 365, _Banda v_ _Pitluk_ 1993 (2) ZLR 60 (H), 64 F-H; _Mutebwa v Mutebwa & Anor_ 2001 (2) SA, 193, 199 I-J and 200 A-B.” [29] In the case of _Zuze v The Trustees for the time being of Bonganyi Rushworth Mlambo & Anor_ SC 69/19, the court went on to define the errors as errors of both law and fact, which, had the court known otherwise, would have made it refuse to grant judgment. PATEL JA (as he then was) said: “For the purposes of r 449(1)(a), an error occurs where there is a relevant fact that was not brought to the attention of the court and the nature of that fact or the given circumstances are such that, had that fact been brought to its attention at the relevant time, the judgment to be rescinded would not have been granted. See _Grantully (Pvt) Ltd & Anor v UDC Ltd_ 2000 (1) ZLR 361 (S); _Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015_ (2) ZLR 57 (S) … The rule clearly does not specify the kind of errors that it contemplates. However, a literal and plain reading of the rule would suggest that it encompasses both errors of law and errors of fact. There is nothing in the rule to indicate otherwise. By the same token, I am unable to find anything in the _Grantully or Wector Enterprises cases (supra)_ to support Mr Mutasa’s contention that the error concerned must be an error of fact in order to invoke the application of the rule. In any event, an error of fact might also necessarily implicate an error of law in particular circumstances where the two errors are inextricably intertwined.” The above legal position outlines the law in relation to what is now rule 29(1)(a). _**APPLICATION OF THE LAW TO THE FACTS**_ [30] In _casu_ , the applicant’s case is that at the time the consent order was granted before Katiyo J, the court was unaware of facts which, if then known to it, would have precluded the granting of the order. The applicant had the onus to place the facts before the court, which facts would not have been before the court when it granted the order in the first place. I agree with Mr _Magogo_ that the applicant’s case is premised mainly on two sets of facts, which it argued that if they were known, the court before KATIYO J would have been precluded from granting the consent order in question. The first is that the applicant was in occupation of the property in its own right, and the second is that the property vests in the Trustees for the Time Being of the Apostolic Faith Mission in Zimbabwe and not the first respondent. That second alleged fact meant that the first respondent, as a non-owner, was not entitled to an eviction order which is anchored on _rei vindicatio_. It is a trite principle of the law that one who alleges must prove. Thus, in _ZIMASCO (Pvt) Ltd v Tsvangirai & Ors _SC 12/20 at p 12 GUVAVA JA had this to say: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of _Circle Tracking v_ _Mahachi_ SC 4/07 and _Goliath v Member of the Executive Council for Health, Eastern Cape_ 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in _Delta Beverages (Pvt) Ltd v Murandu SC_ 38/15, where it was stated that: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”” [31] As I alluded to above, the applicant had the onus to establish the facts it alleged if they were known or placed before the court, it would not have granted the consent order. It, therefore, had to establish first that it was in occupation of the property and secondly that the property was not owned by the first respondent at the time the order by consent was granted. The applicant dismally failed to prove any of these allegations. [32] As regards the allegation that it was in occupation of the property, it remained bald and unsubstantiated. It is a settled principle of the law that an application stands or falls on its founding affidavit. This was reiterated in _Chironga & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors _CCZ 14/20 at p 8, where HLATSHWAYO JCC stated as follows: “It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen _the Civil Practice of the Superior Courts in South Africa_ 3rd ed (hereinafter ‘Herbstein &Van Winsen or the Authors’) p 80 where the authors stated that: “The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.” See also _Ahmed v Docking Station Safaris Private t/a CC Sales_ SC 70/18 at p 3; _Fuyana v Moyo_ SC 54/06, _Muchini v Adams & Ors_ SC 47/13 and _Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors_ SC 80/06. The legal position was further restated in _Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union _SC 20/16 as follows: “The issue that begs an answer is how the court _a quo_ should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers. An application must be disposed of on the basis of the founding affidavit. …” [33] In para(s) 11 and 12 of the founding affidavit, the applicant pleaded that it had been in occupation of the property for close to four years now and that this is known by the first respondent. It also averred that the applicant is sharing occupation and usage of many other properties. That it does not derive its occupation from an employee of the first respondent, the second respondent. It has never been “an employee (sic) or tenant of the first respondent”. It further alleged that the second respondent, as the caretaker, occupied the cottage while the applicant had always occupied the main house. In the answering affidavit, in particular at para 3.5, it further pleaded that: “Applicant took occupation of the property at a time when the 1st Respondent and Applicant were still one body… Be that as it may, to Applicant’s knowledge the 2nd and 3rd Respondents occupied the cottage whilst Applicant occupied the main house.” [34] Besides the above averments being just bald averments, they betray the applicant’s case. As rightly conceded by the applicant’s counsel, Ms _Mazhetese_ at the hearing, it was impossible for the applicant and the first respondent to be one body and for the applicant to allege that it took occupation when the two organisations were one body or organisation. She conceded that the applicant did not exist before the split, as what existed was just one entity in the form of the first respondent. The applicant was only formed by what are referred to as the disgruntled members of the first respondent following the Supreme Court judgment in SC 67/21 handed down in May 2021, which settled the leadership dispute between Cossam Chiangwa and others against Apostolic Faith Mission in Zimbabwe and others. The applicant did not, therefore, exist until after the split. In other words, it was formed following the split by former members of the first respondent. This was also confirmed by Mangota J in the case of _Apostolic Faith Mission in Zimbabwe v Apostolic Faith Mission of Zimbabwe and Others_ HH269/22, and he made the following remarks: “The statement of the respondents which is to the effect that the applicant and them have used the civic centre together cannot possibly be correct. If that was the case, the applicant would not have filed one application after another as it did when it applied for a provisional interdict, a spoliatory relief and this final interdict. It is a case of a clear misconstruction of events for the respondents to allege, as they are doing, that they built the civic centre on the basis of which they should be allowed use of the same. The reality of the matter is that they build the same when they were one whole body-a complete universitas which manifested itself in the applicant. The moment the respondents broke away from the applicant to form their own church as they did after the Supreme Court judgment SC 67/21, whatever they did with the applicant as one church remains with the latter. Nothing of it goes with the respondents. This principle of the law is evident from the statement which is to the effect that a member of the club who breaks away from the club does not take away with him items of the club. He acquires his own items. He formulates new rules for his new club and conscripts persons into the new club. The respondents did not produce any evidence which showed that the applicant allowed them to use the civic centre as and when they remained inclined to use it. By breaking away from the mother body which is the applicant in _casu_ and constituting themselves into an _universitas_ which is separate and different from the applicant, the respondents deprived themselves of use of whatever goods which remained with the applicant. They do not carry along with them the property of the applicant wherever it is situated to wherever they go to fellowship and/or worship. They started their own church and, in the process, they will in the fullness of time acquire their own assets which are separate and different from those which they left behind with the applicant. The stated principle is an unpalatable pill to swallow. Yet it spells out the correct law which neither the respondents nor anyone can wish away.” [35] To then say that the applicant took occupation of the property when the applicant and the first respondent were one body is preposterous to say the least. That averment would be incorrect. The applicant only existed after its formation following the split. When the court queried how the applicant took occupation or was in occupation, counsel for the applicant turned and started to argue that its members were always in occupation of the property and had remained in occupation. This was an attempt to recreate the applicant’s case in argument. But again, its members could only legally exist once they had ceased to be members of the first respondent. The two sets of members cannot legally exist within one body. The so-called members were, in any case, just faceless or nameless. The applicant did not even state the exact date that the alleged members or the applicant, as presented in the founding affidavit, occupied the property. The alleged four years from the date the founding affidavit was deposed to would take us back to the period when the first respondent was the sole organisation in existence. It was not disputed that the applicant was only formed in 2022. The applicant could not, therefore, have occupied the property together with the first respondent as one body. [36] The allegations that they share properties remained just bare. It was not revealed who, in particular, took occupation on behalf of the applicant. It is common cause that the applicant is a juristic entity. To occupy any property, it would require natural persons to do so on its behalf. Nothing was placed before the court to establish which of its members or officers took occupation and is in possession of the property on its behalf or authority. It is trite that bald assertions or allegations do not assist a litigant in establishing their case on a balance of probabilities. In _Sibanda v Yambukai Holdings (Pvt) Ltd & Anor_ HH 84/17 Chitapi J observed that: “The celebrated rule of evidence that he who alleges must prove should always guide practitioners and parties when drafting court pleadings and preparing for court unless the matter at play is one in which an exception to the rule has been provided for as in the case of presumptions… It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value. See generally _Zimbank Ltd_ v _Ndlovu_ SC 61/2004.” [37] When questioned on the evidence the applicant was relying on to establish that it was in occupation of the property at the time the consent order was issued, Ms _Mazhetese_ referred the court to the defendants’ plea filed by the second and third respondents and the affidavit of the first respondent’s Overseer filed with the application for summary judgment. Those documents do not assist the applicant in discharging the onus. In the defendants’ plea filed by the second and third respondents in Case No. HCH 1515/23, it was simply alleged that he vacated the premises in December 2022. The affidavit by the Overseer established that the house was still occupied. That affidavit does not say that it was occupied by the applicant. The first respondent’s evidence not seriously challenged, has been that the second and third respondents did not surrender the keys and have remained in occupation of the house. The same defendants in their special plea filed in the Magistrates Court on 4 November 2022 pleaded lack of jurisdiction, arguing that the property was above the monetary jurisdiction limit of the court of US$100,000.00. In para 3 of that plea, they clearly pleaded that: “The house was allocated to the 1st defendant as an employment benefit and at no material time was it agreed that he will be paying rentals or bills. The 1st defendant was never given the notice to vacate.” This is the same defendant who then turned and submitted a plea in this court, alleging that he vacated the premises “sometime in December 2022”. The applicant then took this averment as a fact and sought to rely on it to prove its case. Surely the said defendant’s plea, being bald assertions themselves and arising from circumstances where the said defendants were blowing hot and cold, cannot prove the applicant’s case. [38] There is also nowhere in those pleas that the second and third respondents alleged that they were occupying the cottage while the main house was occupied by the applicant. They clearly related to the house as being allocated to the first defendant as his employment benefit by the first respondent. That employment having been terminated, there was no basis for them to cling to the property. The same defendants, at the hearing of the summary judgment, went on to consent to the order for their eviction before Katiyo J. They agreed to vacate the premises within seven days. If at all, they had vacated, there would not have been any necessity to issue an eviction order. Mr _Magogo_ was the counsel for the first respondent before Katiyo J. Ms _Mazhetese,_ who was not in attendance, attempted to speculate on what transpired at the hearing, and the court rightly stopped her. In any case, what is clear on record is that the court issued an eviction order with the defendants’ consent. They consented to vacate the premises within seven days. This showed that they were in occupation of the property. To say that what happened on 18 October 2024 and the court order thereof was an academic exercise would clearly be absurd and untenable. [39] In my view, it is clear that the applicant failed to establish that it was in occupation of the property in its own right at the time the consent order was granted. If at all, it claims such occupation, then it can only be at the authority or through the second and third respondents. There was no relationship between the applicant and the first respondent or the trustees of its Trust established by the applicant. The first respondent would in such circumstances reasonably assume, as it did, that the applicant has been roped in by the second and third respondents to simply buy time and seek to deny the first respondent the enjoyment of its property. There was nothing to show that the applicant is in occupation of the main house or any part of the first respondent’s property. I agree, therefore, that there was nothing placed before the court as facts to have precluded the court, before Katiyo J, from entering the judgment by consent. No error was established in that regard. [40] The other alleged issue was that the property ‘vests’ in the Trustees for the Time Being of the Apostolic Faith Mission in Zimbabwe and not the first respondent. This point cannot seriously detain this court. The argument is utterly groundless. In para 17 of the founding affidavit to the application for summary judgment, the first respondent attached its title deed to the property as its Annexure H. In para 2 of the consent order itself, it is recorded expressly that the property is “held under Deed of Transfer number 2797/82 in the name of the Applicant”. The court was satisfied that the applicant owned the property as it is the registered owner thereof. [41] The Deed of transfer was also attached to the first respondent’s papers before me. The copy thereof at p 35 establishes that the first respondent is the registered owner of the property, not the trust or the trustees. This evidence was not challenged in the answering affidavit. In fact, the applicant did not address the issue directly. It also then alleged that the applicant and first respondent once existed on these premises as one body. I have already dealt with this misleading and incorrect averment, and the same is fully canvassed by Mangota J in the _Apostolic Faith Mission in Zimbabwe_ case, _supra_. In any case, no evidence was there to establish that the applicant or its members was in occupation of the property at the time the court granted the consent order. In any case, it is settled that once the property is registered in the Deeds Registry, the title deed is _prima facie_ proof of ownership of the property. See _Takafuma v Takafuma_ 1994 (2) ZLR 103 (S). There was nothing placed before me to challenge that ownership. Once it was apparent that the first respondent was the owner of the property, it was accordingly entitled to an eviction order. It had the _locus standi in judicio_ in the circumstances. The claim for eviction was anchored on _rei vindicatio_. The law is settled that the owner of a thing is entitled to recover it from anyone in possession thereof without its consent. Thus, in _Chenga_ v _Chikadaya & Ors_ SC 7/13 at p.7 it was it stated as follows: “The _rei vindicatio_ is a common law remedy that is available to the owner of property for its recovery from the possession of any other person. In such an action there are two essential elements of the remedy that require to be proved. These are firstly, proof of ownership and secondly, possession of property by another person. Once the two requirements are met, the onus shifts to the respondent to justify his occupation. [42] Consequently, the court could not have been precluded from issuing the consent order. The applicant failed to show that the order was erroneously sought or granted. The application is utterly groundless and without any legal foundation. It cannot succeed. There was nothing to show that the order affected the applicant and that the order was granted in error. The alleged non-compliance with the _audi alteram partem_ rule does not arise. The applicant failed to establish any facts which, if known by the court, would have led it not to grant the order on 18 October 2024. The application cannot succeed. _**COSTS**_ [43] There is no reason for me to depart from the general rule that costs shall follow the cause in this case. The successful party must be allowed to recover its costs of suit. The first respondent sought the costs to be awarded against the applicant on a legal practitioner and client scale. It is trite that the issue of costs is within the discretion of the court. It also settled law that costs on a legal practitioner and client scale are awarded only in special circumstances where the conduct of the other party or the circumstances of the matter would warrant an order for such punitive costs. This position was restated in _Dongo v Naik & Ors_ SC 52/20 at p 11 para 20 where Gwaunza DCJ remarked as follows: “It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously. It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned. [_Mahembe v Matambo_ 2003 (1) ZLR 148 (H) where the court made reference to Rubin L, _Law of Costs in South Africa,_ Juta & Co (1949)]” [44] I find this application to be frivolous and vexatious. It is completely devoid of any merit. The averments made were largely bald assertions and were not shown to have been seriously made. This is a matter the applicant ought not to have pursued to this end. It was a complete waste of the court’s time and resources, which should be reserved for just causes. The application is clearly a blatant abuse of court process. I agree with Mr _Magogo_ that the facts which the applicant alleged would have precluded the court from granting the order were contrived and hopelessly false. The applicant made not only an impossible but incorrect averment that it took occupation of the property when the applicant and the first respondent were one body. Ms _Mazhetese,_ however, conceded that there was only one organisation, that is, the first respondent, before the split and that the applicant was formed by disgruntled members of the first respondent. [45] At the hearing, counsel for the applicant further shifted and started to claim that the applicant’s members had been in occupation and had remained in occupation. This was after the court queried that the applicant can only act through natural persons, as it is a juristic entity. The shifts and turning in the applicant’s case is a classic display of _mala fides_ or dishonesty. In _The Trustees for the Time Being of Cornerstone Trust & Ors _v _NMB Bank Ltd_ SC 97/21 at p 8, the court said: “The position was well articulated in the case of _S v Marutsi_ 1990 (2) ZLR 370 at page 374B wherein it was stated that: “It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other, not both.” Moreover in the case of _Alliance Insurance v Imperial Plastics (Pvt) Ltd. & Another _SC 30/2017, the court took the view that such conduct amounts to a classic display of _mala fides_.” [46] The alleged members who took occupation were not even revealed. The applicant was clearly not candid with the court and sought to contrive a case. It had no evidence. It would appear that the application was launched not for the quest for justice but for some other ulterior motive. There was no evidence that it was in occupation of the property in its own right, such that the court would not have granted the order on 18 October 2024. I, therefore, agree that the application was filed to delay the second and third respondents’ eviction and unduly seek to deny the first respondent the due rights that come with its ownership of the property. The applicant and its officers were well informed by this court before Mangota J in the _Apostolic Faith Mission in Zimbabwe_ case _supra_ as to the legal effect of the split and the formation of the applicant and the futility of any argument that they share ownership of the first respondent’s property. Litigants must take judicial pronouncements seriously and avoid seeking to simply cling to unworthy causes or frivolities, thereby wasting the courts’ time. For the above reasons, costs on a punitive scale would be warranted in the circumstances. _**DISPOSITION**_ [47] The applicant failed to establish that the consent order granted by this court on 18 October 2024 was erroneously sought or granted. The requirements for the rescission of the judgment or order in terms of rule 29(1)(a) were not satisfied. There was no error to talk about. The application ought to fail. The court order must be given effect. A court order once issued has the force of law, and the first respondent, as the successful party, is entitled to enjoy the fruits of that judgment. [48] Rule 29(1) is not designed to create unwarranted and hopeless claims that seek to upset the orders of this court for no just cause. The remedy under rule 29(1) is an exception to the general rule that once the court pronounces its final judgment, it has become _functus officio_ and cannot reopen the matter. The court must be on guard for those litigants who simply seek to abuse this exceptional procedure and undermine the principle of finality to litigation. Where that is the case, as in the present one, the court must not hesitate to issue an admonitory order of costs against such litigants. [49] Consequently, it is ordered that: The application is dismissed with costs on a legal practitioner and client scale. **DEMBURE J:** …………………………………………. _Muchengeti & Company_, applicant’s legal practitioners _Zvimba Law Chambers_ , 1st respondent’s legal practitioners