CLAYHILL TRADING (PRIVATE) LIMITED v MUVANDI N.O and OTHERS (29 of 2025) [2025] ZWMTHC 29 (11 June 2025)

11 HCMTJ 29-25 HCMTC 261/24 CLAYHILL TRADING (PRIVATE) LIMITED versus CHENESO MUVANDI N.O And CHENESO MUVANDI And CITY OF MUTARE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 9 and 11 June 2025 APPLICATION FOR RESCISSION OF JUDGMENT Advocate B. Mudhau, for the applicant Mr H.R.B. Tanaya, for the first and second respondents No appearance for the third respondent SIZIBA J: The current application which is the subject matter of this judgment is for rescission of a default judgment in terms of r 27 of the High Court Rules, 2021. The default judgment in question was a dismissal of applicant’s composite application for condonation of late noting of an application for rescission of judgment and application for rescission of judgment in terms of r 29 of the High Court Rules, 2021. The dismissal of that application occurred on 30 September 2024 when the applicant’s Legal Practitioners did not show up at court for the hearing of that application on the set down date. The voluminous papers in this case as well as the long and meandering legal nomenclature alluded to above bear clear testimony that the case at hand has a long, tedious and turbulent history. FACTUAL BACKROUND The applicant’s case as per its application filed under HCMTC177/24 (hereinafter called the main case) is that on 20 July 2016, it concluded an agreement of sale with the late Washington Jekanyika (whose estate is now represented by the first respondent) and the second respondent (both hereinafter referred to as the purchasers) whereupon it sold them its rights, title and interests in stand number 11234 Darlington Extension, Mutare measuring 1, 1759 hectares. The terms of payment of the purchase price were that the purchasers should pay a sum of US$20 000 upon signing of the agreement. There was a subsequent US$20 000 which was due within three weeks of the signing of the agreement. Thereafter, monthly installments of US$4000 were to follow. The applicant was to facilitate a cession of the property to the purchasers’ names from the third respondent within seven days of the second installment of US$20 000 being paid. The applicant alleges that the purchasers defaulted by failing to pay the second US$20 000 and he cancelled the agreement after giving the purchasers a notice as had been agreed upon. What then happened according to the applicant is that the property was ceded to the purchasers without recourse to the applicant and when the purchasers had not paid the full purchase price to it. There is a sharp dispute between the parties as to whether the purchasers discharged all their payment obligations or not. Both sides started demanding entitlement to the property and infact, the applicant even sold the property to a third party being Daniel Moyana Family Trust on the basis that it had cancelled its agreement with the purchasers although the purchasers dispute the genuineness of the alleged sale and also insist that they were not even served with any notice of cancellation of the agreement. In the meanwhile, the third respondent found itself in a very precarious position as it was being threatened with legal consequences if it failed to go along with either side. At first, the applicant threatened the third respondent to cancel the allegedly fraudulent cession agreement that it had entered into with the purchasers and after calling for some meeting, the third respondent gave in and cancelled the cession agreement. Thereafter, the third respondent was threatened with serious legal consequences by the purchasers’ lawyers who later approached this court under HC 303/19 seeking to set aside the third respondent’s cancellation of their agreement of sale. In doing this, the purchasers did not cite the applicant nor join it to those proceedings. When the said matter was heard, the third respondent’s argument that the applicant ought to have been joined to the application in question was rejected by the court on the basis that the applicant had already opted to sue the purchasers for the sum of US$28 000 under case number HC 2225/17 which sum of money was said to be the balance of the outstanding purchase price. The court also, under judgment number HMT 12/20 which was delivered on 27 January 2020, reasoned that the third respondent’s unilateral cancellation of the agreement of sale without having heard from the purchasers was arbitrary and unlawful and it was not in terms of any provision of its contract with them. The cancellation was thus set aside and the agreement of sale between the third respondent and the purchasers was then resuscitated. This is the judgment that the applicant has been laboring to rescind and outside of the stipulated one month time frame as mandated by r 29 of the High Court Rules, 2021. Applicant’s case is that the said judgment was erroneously sought or granted against it in its absence when its interests were affected. On 30 September 2024, its lawyers failed to show up before this court which again created another default judgment against it and therefore compounded its difficulties. SUBMISSIONS BY COUNSEL Both counsel reiterated their positions as per their respective heads of argument. Mr Tanaya took points in limine regarding the applicant’s failure to include certain documents in the consolidated index and also regarding improper pagination of the index. He also indicated some doubt whether the Certificate of Service upon the Master of High Court captured the correct address of service. He later abandoned all the points in limine. I was prepared to also condone the applicant on the issue of paginating papers in the middle top part of the pages as requested by Advocate Mudhau in the interests of progress as this matter had been in and out of this court without being dealt with to its finality for one reason or another. Mr Tanaya also moved the court to expunge from the record a certain document which had been filed after heads of arguments by both parties under some Notice of Filing by the applicant’s legal practitioners. The document in question is an agreement between the applicant and the third respondent dated 24 December 1998. Such document should not form part of this record as the rules do not make provision for a party to unilaterally throw in documents to the record without leave of the court after the parties have filed all their affidavits in terms of the rules. Advocate Mudhau submitted that the applicant had met all the requirements of the application for rescission of judgment. He submitted that the explanation for the default was reasonable. He had difficulty explaining why the applicant in the answering affidavit had not rebutted the first and second respondents’ allegations that four lawyers were linked to the case. He insisted that the applicant ought to have been joined to case number HC 303/19 as their rights were affected by it. The judgment was erroneously granted without the applicants being joined to the case. He submitted that the error was the failure to join the applicant and that the court was given wrong information that the applicant had sued the first and second respondents for the balance of the purchase price when it was a different entity called Clayhill Property Development (Private) Limited. He also submitted that the case in question had already been withdrawn when the HC 303/19 was heard in court. He insisted that the error made by the court was the one contemplated under r 29 of the High Court Rules, 2021. Counsel denied that paras 44 to 48 of the main application sounded like grounds of appeal against the judgment sought to be rescinded. He referred to the cases of African Banking Corporation of Zimbabwe Limited v A. A Midgley Property Company (Pvt) Limited HH 372/24 and that of Weighbridge Tech Africa Steel (Private) Limited and Another HH 376/16 as being persuasive on the type of errors envisaged under r 29 of the High Court Rules, 2021. On the other hand, Mr Tanaya submitted that the applicant had no interest in HC 303/19 as it had chosen to sue the first and second respondents for the balance alleged to be outstanding. He insisted that the alleged Notice of Withdrawal was not served upon them and hence it was improper. He submitted further that the ratio decidendi of that judgment was that the third respondent had arbitrarily cancelled the agreement of sale without engaging the first and second respondents and that there was no contractual provision which supported such a course of action. His further submission was that the application in question had been served upon Herbert Sambo who was the Managing Director of the applicant and he had indicated lack of interest in the case. Counsel’s argument was that all the information was before the court when it refused to join the applicant to the case and hence no error was committed by the court in the context of r 29 of the High Court Rules, 2021. THE LAW AND ITS APPLICATION In terms of the r 27 of the High Court Rules, 2021, a party seeking to have a default judgment rescinded must show good and sufficient cause. The concept of good cause has been exhaustively interpreted and expounded upon by our courts to entail, among other things, a consideration of the reasonableness of the explanation for the default, the bona fides of the application to rescind the default judgment, and the bona fides of the defense on the merits which carries some prospects of success. These factors should be considered not in isolation but in conjunction with each other and in the context of the application as a whole. See Rydale Ridge Park (Pvt) Limited v Muridzo N.O SC 17/23. I have closely followed the applicant’s explanation for the failure by its lawyers to attend court on 30 September 2024. The deponent to the founding affidavit says that he is the only one linked to the company’s email that is connected with this court’s IECMS portal for notifications. On 24 September 2024, his aunt passed away in Makoni District and he proceeded there. He could therefore not access the email when the notification to attend court was sent on 25 September 2025. He only returned to the office on 30 September 2024, the day that he says he was busy clearing his desk of urgent issues. On 1 October 2024, his lawyer informed him that he had been sick and that the case had been dismissed. Coincidentally, Mr Mupudzi, the applicant’s lawyer, got sick on 24 September 2024 as he was under asthma attack and he consulted his doctor who gave him some time off until 30 September 2024. He was unable to access his email during the said period. When the respondents attacked this excuse by saying that he was the fourth lawyer who was linked to this case on the IECMS portal along with Phillis Zvenyika, Reason Muchirewesi and Mazvita Mudzinganyama, these specific allegations were not met with any specific rebuttal in the answering affidavit and it follows that what is not denied is admitted. Advocate Mudhau conceded that no rebuttal was made to this allegation on the applicant’s answering affidavit. This very account about the explanation for the default is just too good to be true. Despite being fanciful and enticing, it lacks the plausibility and seriousness with which modern business interests are pursued in this age of technology. It would be not only counterproductive but backward as well for this court to accept that both a practicing lawyer and a General Manager of a company would not access their emails for a period of six days for reasons of bereavement and sickness without either of them making any provision or arrangement with their colleagues and or subordinates in the organization. If that was the scenario which happened in this case, then it smacks of gross negligence which accords with willfulness to default court. But still as I have already pointed out above, the notification for court would have still been accessed by the other three lawyers who were linked to the case in the IECMS portal. If these did not also check their emails, then such again would border on gross negligence amounting to willful abstinence from paying attention to court process. I therefore find that the applicant has not provided any acceptable or reasonable explanation for the default. Regarding the question of whether there is a bona fide and meritable case for the applicant on the main case, it must be considered that the applicant filed the main case on 27 July 2024 having learned of the judgment in question in April 2023 which was more than a year. Well, if the prospects of his success were strong, one would accept that such good prospects should compensate for a weak explanation as well as the long period of inaction. The applicant’s main case hangs upon its complaint that the judgment against it was erroneously sought and erroneously granted as contemplated in r 29 of the High Court Rules, 2021. However, the tone of applicant’s complaint about that judgment as gleaned from paras 44 to 48 of the founding affidavit in the main application does not establish a cause of action under r 29 in the context of the judgment complained of. These paragraphs read thus: “44. In fact, it was an error on the part of the Court to make all the factual findings and/or factual and legal conclusions which the court made in its judgment, without first affording either Clayhill Property Development (Private) Limited or applicant an opportunity to confirm or dispute the allegations which were levelled against it. Neither the applicant nor Clayhill Property Development (Private) Limited were heard by the Court before it made its findings which affect applicant’s rights to the property. 45. Of all the parties which were before the Court no one could speak on behalf of the applicant. The error which the court fell into in relying on misleading information from the first and second respondents would have been averted by simply joining applicant or that entity to the proceedings which were pending before the court. It would have been brought to the attention of the court that the proceedings under case number HC2225/17 which first and second respondents relied on were withdrawn in January 2018. A copy of the notice of withdrawal is attached hereto and marked as annexure ‘Z’. 46. Another error which the Court fell into was to proceed and make a determination in the absence of applicant when it was very clear that in terms of the agreement of sale of 20 July 2016 which the court referred to in its judgment that it was the seller of the property which was the subject of the dispute before it, invariably making applicant an interested party whose rights and interests in the property would be affected by its judgment. This was a fundamental error by the Court which vitiates the judgment it arrived at under case number HC 303/19. 47. If applicant had been joined as a party to the proceedings it would have brought it to the attention of the court and proved it that first and second respondents fraudulently entered into an agreement of sale with third respondent contrary to the provisions of clause 8.1 of the agreement of sale of 20 July 2016 which was before it. In terms of clause 8.1, first and second respondents were prohibited from purportedly entering into an agreement of sale with third respondents without first performing their contractual obligations. 48. First and second respondents derived their rights to enter into the agreement of sale with third respondent from their agreement of sale with applicant. On 19 March 2018, applicant cancelled the agreement of sale it had with first and second respondents. It follows that there could no longer be any obtaining valid agreement between first and second respondents and third respondent in the circumstances.” (Emphasis added) This is where the applicant is missing the point. The court in its judgment under HC 303/19 was conscious of the desire by the third respondent to join the applicant to those proceedings and it rejected the point in limine by the third respondent and gave its reasons for its decision. The court reasoned that its task was to focus on adjudicating the rights as between the purchasers and the third respondent who the court found to have acted arbitrarily in unilaterally cancelling its agreement of sale with the purchasers. So, if the court was wrong in those findings, then it was up to the third respondent or anyone who was part of that case to appeal that judgment. Whilst one does accept that the applicant may have had an interest in the same property since it had sold it to the first and second respondents, the court consciously determined the rights and obligations of those parties which were before it and refused to join the applicant in that case. It is not the applicant but another party who asked applicant to be joined. For the applicant to fall under the ambit of r 29 where the cause of its action lies, it must demonstrate, not only that it is affected by that judgment that was pronounced in its absence, but it must also prove that such judgment was erroneously sought or erroneously granted. The gist of the applicant’s complaint under paras 44 to 48 of its founding affidavit fails to establish that the judgment sought to be rescinded was erroneously sought or granted. Rule 29 (1) (a) remains one of the limited occasions where a court of law is privileged under strict conditions to visit its own judgment when ordinarily it would have been, strictly speaking, functus officio. Through this rule and a few other rules which basically codify some common law principles, a court of law is permitted to again exercise its jurisdiction when under normal circumstances the court would have already pronounced itself and exhausted its jurisdiction. See African Consolidated Resources (Private) Limited and Others v The Minister of Mines and Mining Development and Others HH 205/10. The applicant’s complaints about the judgment sought to be rescinded are fashioned like grounds of appeal and heads of argument and it is complaining against the reasoning and findings of this court in that judgment. If that is its case, then its troubles cannot be resolved under r 29 (1) (a) which is the provision upon which its main application is anchored. That provision is only meant to cater for instances where a judgment is granted inadvertently by the court when it is not aware of certain facts that have a bearing on the outcome of the case. Where the party is disagreeing with a decision that was made consciously and intentionally by a court after taking into account the facts and evidence that was available to it, then such party may have a remedy elsewhere in the law depending on the facts that it has but not certainly under r 29 (1) (a). In African Banking Corporation of Zimbabwe Limited v A. A Midgley Property Company (Pvt) Limited (supra) which is being relied upon by the applicant, the error which the court had made was inadvertent in that the judge who granted judgment on the unopposed roll was not aware that the applicant had filed its opposing papers and that its heads of argument had been also filed timeously. Such error is contemplated under r 29 (1) (a). In Weighbridge Tech Africa Steel (Private) Limited and Another (supra), the judge who granted the order for attachment of the motor vehicles to confirm jurisdiction had been told that the motor vehicles were owned by one Louis Albertyn who was applicant’s Managing Director when infact the motor vehicles in question belonged to the applicant as was proven by the registration books which were then produced in court when it rescinded the judgment under r 29 (1) (a). In none of the cases referred to above did the applicants ever disagree with the findings of the court as is being done by the applicant in this case. Rule 29 (1) (a) is not meant to afford a remedy to those parties who wish to cast blame upon the reasoning of the court or to attack its findings of facts and law. It is meant to correct errors that the court did not advert its mind to in granting an order or judgment as a result of facts and issues which were not placed before it when it made the determination of the matter. Furthermore, the papers before this court show clearly that Clayhill Property Development (Private) Limited was applicant’s trade name which is reflected in the agreement of sale with the first and second respondents as well as in the agreement of sale between itself and Daniel Moyana Family Trust. It is common cause from the papers before this court that the applicant is a property developer. Moreover, the pleadings in the action in question under HC 2225/17 show clearly that the property being referred to was the very property which had been sold to the purchasers who are before this court. The terms of the sale agreement and the terms of payment of the purchase price which were alleged in that action are the same terms which the applicant is relying on in its main application. This court cannot therefore accept that it was not true that the applicant had not sued the purchasers for the balance of the purchase price in the sum of US$28 000. It did. The fact that such action had been allegedly withdrawn does not mean that the judgement was erroneously sought or granted. I am also persuaded by Mr Tanaya’s submission that there is no proof that the Notice of Withdrawal had been served upon their firm. His further observation was also that the Notice of Withdrawal in question was filed by Herbert Sambo when the applicant was legally represented and when no Notice of Renunciation of Agency had been filed. This again was irregular. In the subsequent judgment under HMTC 356/23, the court again said that since it had already validated the sale between the second respondent and the third respondent, the applicant should pursue the balance of US$28 000. It is not the court’s business to advise the applicant what it ought to have done or how it ought to have framed its cause of action in coming to this court but for the purposes of this present matter, it has no case on the merits and hence there is no purpose in rescinding the judgment that operates against it. If at all there would have been a strong case on the merits, I would have been persuaded to accept that such strong case may compensate for the applicant’s unreasonable explanation for its default at court. The applicant’s case in the main matter has no solid foundation. I am not persuaded that the applicant deserves to be punished with an order of costs on a higher scale for having pursued its rights against the respondents to this extent. In view of the above considerations, I shall therefore order as follows: The application for rescission of judgment be and is hereby dismissed.The applicant shall pay the second respondent’s costs of suit. Muchirewesi & Zvenyika, applicant’s legal practitioners Tanaya Law Firm, first and second respondents’ legal practitioners 11 HCMTJ 29-25 HCMTC 261/24 11 HCMTJ 29-25 HCMTC 261/24 CLAYHILL TRADING (PRIVATE) LIMITED versus CHENESO MUVANDI N.O And CHENESO MUVANDI And CITY OF MUTARE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 9 and 11 June 2025 APPLICATION FOR RESCISSION OF JUDGMENT Advocate B. Mudhau, for the applicant Mr H.R.B. Tanaya, for the first and second respondents No appearance for the third respondent SIZIBA J: The current application which is the subject matter of this judgment is for rescission of a default judgment in terms of r 27 of the High Court Rules, 2021. The default judgment in question was a dismissal of applicant’s composite application for condonation of late noting of an application for rescission of judgment and application for rescission of judgment in terms of r 29 of the High Court Rules, 2021. The dismissal of that application occurred on 30 September 2024 when the applicant’s Legal Practitioners did not show up at court for the hearing of that application on the set down date. The voluminous papers in this case as well as the long and meandering legal nomenclature alluded to above bear clear testimony that the case at hand has a long, tedious and turbulent history. FACTUAL BACKROUND The applicant’s case as per its application filed under HCMTC177/24 (hereinafter called the main case) is that on 20 July 2016, it concluded an agreement of sale with the late Washington Jekanyika (whose estate is now represented by the first respondent) and the second respondent (both hereinafter referred to as the purchasers) whereupon it sold them its rights, title and interests in stand number 11234 Darlington Extension, Mutare measuring 1, 1759 hectares. The terms of payment of the purchase price were that the purchasers should pay a sum of US$20 000 upon signing of the agreement. There was a subsequent US$20 000 which was due within three weeks of the signing of the agreement. Thereafter, monthly installments of US$4000 were to follow. The applicant was to facilitate a cession of the property to the purchasers’ names from the third respondent within seven days of the second installment of US$20 000 being paid. The applicant alleges that the purchasers defaulted by failing to pay the second US$20 000 and he cancelled the agreement after giving the purchasers a notice as had been agreed upon. What then happened according to the applicant is that the property was ceded to the purchasers without recourse to the applicant and when the purchasers had not paid the full purchase price to it. There is a sharp dispute between the parties as to whether the purchasers discharged all their payment obligations or not. Both sides started demanding entitlement to the property and infact, the applicant even sold the property to a third party being Daniel Moyana Family Trust on the basis that it had cancelled its agreement with the purchasers although the purchasers dispute the genuineness of the alleged sale and also insist that they were not even served with any notice of cancellation of the agreement. In the meanwhile, the third respondent found itself in a very precarious position as it was being threatened with legal consequences if it failed to go along with either side. At first, the applicant threatened the third respondent to cancel the allegedly fraudulent cession agreement that it had entered into with the purchasers and after calling for some meeting, the third respondent gave in and cancelled the cession agreement. Thereafter, the third respondent was threatened with serious legal consequences by the purchasers’ lawyers who later approached this court under HC 303/19 seeking to set aside the third respondent’s cancellation of their agreement of sale. In doing this, the purchasers did not cite the applicant nor join it to those proceedings. When the said matter was heard, the third respondent’s argument that the applicant ought to have been joined to the application in question was rejected by the court on the basis that the applicant had already opted to sue the purchasers for the sum of US$28 000 under case number HC 2225/17 which sum of money was said to be the balance of the outstanding purchase price. The court also, under judgment number HMT 12/20 which was delivered on 27 January 2020, reasoned that the third respondent’s unilateral cancellation of the agreement of sale without having heard from the purchasers was arbitrary and unlawful and it was not in terms of any provision of its contract with them. The cancellation was thus set aside and the agreement of sale between the third respondent and the purchasers was then resuscitated. This is the judgment that the applicant has been laboring to rescind and outside of the stipulated one month time frame as mandated by r 29 of the High Court Rules, 2021. Applicant’s case is that the said judgment was erroneously sought or granted against it in its absence when its interests were affected. On 30 September 2024, its lawyers failed to show up before this court which again created another default judgment against it and therefore compounded its difficulties. SUBMISSIONS BY COUNSEL Both counsel reiterated their positions as per their respective heads of argument. Mr Tanaya took points in limine regarding the applicant’s failure to include certain documents in the consolidated index and also regarding improper pagination of the index. He also indicated some doubt whether the Certificate of Service upon the Master of High Court captured the correct address of service. He later abandoned all the points in limine. I was prepared to also condone the applicant on the issue of paginating papers in the middle top part of the pages as requested by Advocate Mudhau in the interests of progress as this matter had been in and out of this court without being dealt with to its finality for one reason or another. Mr Tanaya also moved the court to expunge from the record a certain document which had been filed after heads of arguments by both parties under some Notice of Filing by the applicant’s legal practitioners. The document in question is an agreement between the applicant and the third respondent dated 24 December 1998. Such document should not form part of this record as the rules do not make provision for a party to unilaterally throw in documents to the record without leave of the court after the parties have filed all their affidavits in terms of the rules. Advocate Mudhau submitted that the applicant had met all the requirements of the application for rescission of judgment. He submitted that the explanation for the default was reasonable. He had difficulty explaining why the applicant in the answering affidavit had not rebutted the first and second respondents’ allegations that four lawyers were linked to the case. He insisted that the applicant ought to have been joined to case number HC 303/19 as their rights were affected by it. The judgment was erroneously granted without the applicants being joined to the case. He submitted that the error was the failure to join the applicant and that the court was given wrong information that the applicant had sued the first and second respondents for the balance of the purchase price when it was a different entity called Clayhill Property Development (Private) Limited. He also submitted that the case in question had already been withdrawn when the HC 303/19 was heard in court. He insisted that the error made by the court was the one contemplated under r 29 of the High Court Rules, 2021. Counsel denied that paras 44 to 48 of the main application sounded like grounds of appeal against the judgment sought to be rescinded. He referred to the cases of African Banking Corporation of Zimbabwe Limited v A. A Midgley Property Company (Pvt) Limited HH 372/24 and that of Weighbridge Tech Africa Steel (Private) Limited and Another HH 376/16 as being persuasive on the type of errors envisaged under r 29 of the High Court Rules, 2021. On the other hand, Mr Tanaya submitted that the applicant had no interest in HC 303/19 as it had chosen to sue the first and second respondents for the balance alleged to be outstanding. He insisted that the alleged Notice of Withdrawal was not served upon them and hence it was improper. He submitted further that the ratio decidendi of that judgment was that the third respondent had arbitrarily cancelled the agreement of sale without engaging the first and second respondents and that there was no contractual provision which supported such a course of action. His further submission was that the application in question had been served upon Herbert Sambo who was the Managing Director of the applicant and he had indicated lack of interest in the case. Counsel’s argument was that all the information was before the court when it refused to join the applicant to the case and hence no error was committed by the court in the context of r 29 of the High Court Rules, 2021. THE LAW AND ITS APPLICATION In terms of the r 27 of the High Court Rules, 2021, a party seeking to have a default judgment rescinded must show good and sufficient cause. The concept of good cause has been exhaustively interpreted and expounded upon by our courts to entail, among other things, a consideration of the reasonableness of the explanation for the default, the bona fides of the application to rescind the default judgment, and the bona fides of the defense on the merits which carries some prospects of success. These factors should be considered not in isolation but in conjunction with each other and in the context of the application as a whole. See Rydale Ridge Park (Pvt) Limited v Muridzo N.O SC 17/23. I have closely followed the applicant’s explanation for the failure by its lawyers to attend court on 30 September 2024. The deponent to the founding affidavit says that he is the only one linked to the company’s email that is connected with this court’s IECMS portal for notifications. On 24 September 2024, his aunt passed away in Makoni District and he proceeded there. He could therefore not access the email when the notification to attend court was sent on 25 September 2025. He only returned to the office on 30 September 2024, the day that he says he was busy clearing his desk of urgent issues. On 1 October 2024, his lawyer informed him that he had been sick and that the case had been dismissed. Coincidentally, Mr Mupudzi, the applicant’s lawyer, got sick on 24 September 2024 as he was under asthma attack and he consulted his doctor who gave him some time off until 30 September 2024. He was unable to access his email during the said period. When the respondents attacked this excuse by saying that he was the fourth lawyer who was linked to this case on the IECMS portal along with Phillis Zvenyika, Reason Muchirewesi and Mazvita Mudzinganyama, these specific allegations were not met with any specific rebuttal in the answering affidavit and it follows that what is not denied is admitted. Advocate Mudhau conceded that no rebuttal was made to this allegation on the applicant’s answering affidavit. This very account about the explanation for the default is just too good to be true. Despite being fanciful and enticing, it lacks the plausibility and seriousness with which modern business interests are pursued in this age of technology. It would be not only counterproductive but backward as well for this court to accept that both a practicing lawyer and a General Manager of a company would not access their emails for a period of six days for reasons of bereavement and sickness without either of them making any provision or arrangement with their colleagues and or subordinates in the organization. If that was the scenario which happened in this case, then it smacks of gross negligence which accords with willfulness to default court. But still as I have already pointed out above, the notification for court would have still been accessed by the other three lawyers who were linked to the case in the IECMS portal. If these did not also check their emails, then such again would border on gross negligence amounting to willful abstinence from paying attention to court process. I therefore find that the applicant has not provided any acceptable or reasonable explanation for the default. Regarding the question of whether there is a bona fide and meritable case for the applicant on the main case, it must be considered that the applicant filed the main case on 27 July 2024 having learned of the judgment in question in April 2023 which was more than a year. Well, if the prospects of his success were strong, one would accept that such good prospects should compensate for a weak explanation as well as the long period of inaction. The applicant’s main case hangs upon its complaint that the judgment against it was erroneously sought and erroneously granted as contemplated in r 29 of the High Court Rules, 2021. However, the tone of applicant’s complaint about that judgment as gleaned from paras 44 to 48 of the founding affidavit in the main application does not establish a cause of action under r 29 in the context of the judgment complained of. These paragraphs read thus: “44. In fact, it was an error on the part of the Court to make all the factual findings and/or factual and legal conclusions which the court made in its judgment, without first affording either Clayhill Property Development (Private) Limited or applicant an opportunity to confirm or dispute the allegations which were levelled against it. Neither the applicant nor Clayhill Property Development (Private) Limited were heard by the Court before it made its findings which affect applicant’s rights to the property. 45. Of all the parties which were before the Court no one could speak on behalf of the applicant. The error which the court fell into in relying on misleading information from the first and second respondents would have been averted by simply joining applicant or that entity to the proceedings which were pending before the court. It would have been brought to the attention of the court that the proceedings under case number HC2225/17 which first and second respondents relied on were withdrawn in January 2018. A copy of the notice of withdrawal is attached hereto and marked as annexure ‘Z’. 46. Another error which the Court fell into was to proceed and make a determination in the absence of applicant when it was very clear that in terms of the agreement of sale of 20 July 2016 which the court referred to in its judgment that it was the seller of the property which was the subject of the dispute before it, invariably making applicant an interested party whose rights and interests in the property would be affected by its judgment. This was a fundamental error by the Court which vitiates the judgment it arrived at under case number HC 303/19. 47. If applicant had been joined as a party to the proceedings it would have brought it to the attention of the court and proved it that first and second respondents fraudulently entered into an agreement of sale with third respondent contrary to the provisions of clause 8.1 of the agreement of sale of 20 July 2016 which was before it. In terms of clause 8.1, first and second respondents were prohibited from purportedly entering into an agreement of sale with third respondents without first performing their contractual obligations. 48. First and second respondents derived their rights to enter into the agreement of sale with third respondent from their agreement of sale with applicant. On 19 March 2018, applicant cancelled the agreement of sale it had with first and second respondents. It follows that there could no longer be any obtaining valid agreement between first and second respondents and third respondent in the circumstances.” (Emphasis added) This is where the applicant is missing the point. The court in its judgment under HC 303/19 was conscious of the desire by the third respondent to join the applicant to those proceedings and it rejected the point in limine by the third respondent and gave its reasons for its decision. The court reasoned that its task was to focus on adjudicating the rights as between the purchasers and the third respondent who the court found to have acted arbitrarily in unilaterally cancelling its agreement of sale with the purchasers. So, if the court was wrong in those findings, then it was up to the third respondent or anyone who was part of that case to appeal that judgment. Whilst one does accept that the applicant may have had an interest in the same property since it had sold it to the first and second respondents, the court consciously determined the rights and obligations of those parties which were before it and refused to join the applicant in that case. It is not the applicant but another party who asked applicant to be joined. For the applicant to fall under the ambit of r 29 where the cause of its action lies, it must demonstrate, not only that it is affected by that judgment that was pronounced in its absence, but it must also prove that such judgment was erroneously sought or erroneously granted. The gist of the applicant’s complaint under paras 44 to 48 of its founding affidavit fails to establish that the judgment sought to be rescinded was erroneously sought or granted. Rule 29 (1) (a) remains one of the limited occasions where a court of law is privileged under strict conditions to visit its own judgment when ordinarily it would have been, strictly speaking, functus officio. Through this rule and a few other rules which basically codify some common law principles, a court of law is permitted to again exercise its jurisdiction when under normal circumstances the court would have already pronounced itself and exhausted its jurisdiction. See African Consolidated Resources (Private) Limited and Others v The Minister of Mines and Mining Development and Others HH 205/10. The applicant’s complaints about the judgment sought to be rescinded are fashioned like grounds of appeal and heads of argument and it is complaining against the reasoning and findings of this court in that judgment. If that is its case, then its troubles cannot be resolved under r 29 (1) (a) which is the provision upon which its main application is anchored. That provision is only meant to cater for instances where a judgment is granted inadvertently by the court when it is not aware of certain facts that have a bearing on the outcome of the case. Where the party is disagreeing with a decision that was made consciously and intentionally by a court after taking into account the facts and evidence that was available to it, then such party may have a remedy elsewhere in the law depending on the facts that it has but not certainly under r 29 (1) (a). In African Banking Corporation of Zimbabwe Limited v A. A Midgley Property Company (Pvt) Limited (supra) which is being relied upon by the applicant, the error which the court had made was inadvertent in that the judge who granted judgment on the unopposed roll was not aware that the applicant had filed its opposing papers and that its heads of argument had been also filed timeously. Such error is contemplated under r 29 (1) (a). In Weighbridge Tech Africa Steel (Private) Limited and Another (supra), the judge who granted the order for attachment of the motor vehicles to confirm jurisdiction had been told that the motor vehicles were owned by one Louis Albertyn who was applicant’s Managing Director when infact the motor vehicles in question belonged to the applicant as was proven by the registration books which were then produced in court when it rescinded the judgment under r 29 (1) (a). In none of the cases referred to above did the applicants ever disagree with the findings of the court as is being done by the applicant in this case. Rule 29 (1) (a) is not meant to afford a remedy to those parties who wish to cast blame upon the reasoning of the court or to attack its findings of facts and law. It is meant to correct errors that the court did not advert its mind to in granting an order or judgment as a result of facts and issues which were not placed before it when it made the determination of the matter. Furthermore, the papers before this court show clearly that Clayhill Property Development (Private) Limited was applicant’s trade name which is reflected in the agreement of sale with the first and second respondents as well as in the agreement of sale between itself and Daniel Moyana Family Trust. It is common cause from the papers before this court that the applicant is a property developer. Moreover, the pleadings in the action in question under HC 2225/17 show clearly that the property being referred to was the very property which had been sold to the purchasers who are before this court. The terms of the sale agreement and the terms of payment of the purchase price which were alleged in that action are the same terms which the applicant is relying on in its main application. This court cannot therefore accept that it was not true that the applicant had not sued the purchasers for the balance of the purchase price in the sum of US$28 000. It did. The fact that such action had been allegedly withdrawn does not mean that the judgement was erroneously sought or granted. I am also persuaded by Mr Tanaya’s submission that there is no proof that the Notice of Withdrawal had been served upon their firm. His further observation was also that the Notice of Withdrawal in question was filed by Herbert Sambo when the applicant was legally represented and when no Notice of Renunciation of Agency had been filed. This again was irregular. In the subsequent judgment under HMTC 356/23, the court again said that since it had already validated the sale between the second respondent and the third respondent, the applicant should pursue the balance of US$28 000. It is not the court’s business to advise the applicant what it ought to have done or how it ought to have framed its cause of action in coming to this court but for the purposes of this present matter, it has no case on the merits and hence there is no purpose in rescinding the judgment that operates against it. If at all there would have been a strong case on the merits, I would have been persuaded to accept that such strong case may compensate for the applicant’s unreasonable explanation for its default at court. The applicant’s case in the main matter has no solid foundation. I am not persuaded that the applicant deserves to be punished with an order of costs on a higher scale for having pursued its rights against the respondents to this extent. In view of the above considerations, I shall therefore order as follows: The application for rescission of judgment be and is hereby dismissed. The applicant shall pay the second respondent’s costs of suit. Muchirewesi & Zvenyika, applicant’s legal practitioners Tanaya Law Firm, first and second respondents’ legal practitioners