Machingura v Mabvuku Tafara Youth Empowerment Trust & another (21 of 2026) [2026] ZWHHC 12 (21 January 2026)

4 HH 21-26 HCH 1466/25 BRUCE MACHINGURA versus MABVUKU TAFARA YOUTH EMPOWERMENT TRUST and MINISTRY OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING and URBAN DEVELOPMENT CORPORATION HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 26 November 2025 & 8 January 2026 Court Application for Rescission of Default Judgment M Nyakateka, for the Applicant T Charurira, for the 1st Respondent D Machingauta, for the 2nd Respondent No appearance for the 3rd Respondent TAKUVA J: This is an application for rescission of judgment in terms of r 29(1)(a) of the High Court Rules 2021. FACTUAL BACKGROUND The first respondent obtained an offer letter from the second and third respondents. He was supposed to get a lease agreement after payment of the purchase price. After payment of the purchase price, the first Respondent demanded to be given the lease agreement timeously. When this failed to materialise, the first Respondent sued the second and third Respondents for specific performance. The first Respondent got an order and a lease agreement from the second and third respondents. The Applicant is now approaching this Court with an application for rescission. It is common cause that the first respondent obtained an offer letter before the Applicant. Also, the first Respondent has been occupying the stand in question and that first respondent has a lease agreement. APPLICANT’S CASE The Applicant contended that his default was not wilful, there is a good cause why the judgment has to be set aside and that there is a bona fide defence on the merits. It was also submitted that the Applicant was offered stand 31501 of Caledonia Township for the development of a primary school by second Respondent who is the issuing authority. Subsequently, applicant was informed that he could not make a payment regarding stand in issue on 13 March 2025. On 17 March 2025, applicant visited the High Court where he was advised of the existence of the default order and that he should apply for its rescission. Applicant contends that his interest in the claim arises from his offer letter granted by the second respondent on 23 January 2017. He also contends that he has been making payments to the second respondent since 2018. The order sought by the first Respondent against second and third Respondent is in direct conflict with applicant interest in the land. It is Applicant’s submissions that he has good prospects of succession that the application ought to have been struck off the roll because first Respondent had incorrectly cited itself and that the first respondent did not have any rights over the land. Applicant argued that the balance of convenience favours the intervention of this Court as he was not cited in the application and not served with my papers. FIRST RESPONDENT’S CASE The application was opposed by the first respondent on the following grounds. IN LIMINE The application has been overtaken by events. MERITS 2.1 The application was properly granted. 2.2 The application does not affect any of applicant’s rights. 2.3 Applicant’s offer letter was issued after the offer letter of the first respondent which was dated 2016. The first respondent was the first to be offered the land and it paid in full after which it obtained title in the form of lease. 2.4 Applicant concedes that he did not pay the full purchase price within the stipulated 4 years. For nearly 9 years Applicant has not paid the full purchase price. 2.5 The first Respondent was not aware of the existence of the applicant. 2.6 Applicant has no prospects of success in that first respondent is in occupation of the land since 2016 and this shows applicant was aware that the land is occupied and he wanted to snatch the land away from the first respondent. The applicant’s interests are bogus in nature and his dishonestly warrants this application to be dismissed. 2.7 A trust can sue and be sued in its own name. 2.8 The first respondent met the requirements of specific performance by enforcing contractual rights. Finally, it was contended that the balance of convenience does not favour the applicant in that this is a bogus application overtaken by events and first respondent was not aware of the existence of the applicant’s interests in this piece of land in question. First Respondent prayed that the matter be dismissed with costs at attorney and client scale. THE LAW The first respondent raised a point in limine relating to the doctrine of mootness. The doctrine of mootness imposes a limitation on justiciability. The law on mootness was remarkably restated in Ndewere v President of Zimbabwe NO & Ors SC 57/22 where Makoni JA stated as follows:” “[37] A matter is moot if the dispute becomes academic by reason if changed circumstances, thus making the jurisdiction of the court unsustainable. [38] The issue was comprehensively dealt with the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19 at p 7 where it was held as follows: ‘A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances, the court’s jurisdiction ceases and the case becomes moot…The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a line dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept invitation to adjudicate on issues which are of such a nature that the decision sought will have no practical effect or result.”’ The above principle was followed in MDC & Ors v Mashavira & Ors SC 56/20 of p 33 where it was stated; “…a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties … [1] the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.” In casu, the application does not affect any of the applicant’s rights due to the fact that it has been overtaken by events and now moot and academic. It should be noted that the order which the applicant seeks to be rescinded has been acted upon and executed in that the first Respondent has obtained a lease agreement already from the second Respondent. This renders the entire matter moot and academic. This means that the court must decline its jurisdiction and strike the matter off the roll. Assuming that I am wrong on the legal issue of mootness there are other reasons why this matter cannot succeed. These are they; The default judgment was properly granted.The application does not affect any of the Applicants’ rights as he can still pursue them after whosoever he chooses.The first respondent did not have knowledge of the applicant since 2016, and first Respondent has been in occupation.The offer letter which is relied on by the Applicant was issued after the offer letter of the first Respondent which is dated 2016. Therefore, the first Respondent was the first to be offered the land and it paid in full after which it obtained a lease.The Applicant conceded that he did not pay the full purchase price in the undisputed 4-year tenure he was provided by the second Respondent. Clearly Applicant is in breach.The first Respondent was not aware of the existence of the Applicant and there was no other way the court could not grant an order for a which a party has paid the full purchase price timeously. PROSPECTS OF SUCCESS The land in disputed has been occupied by the first respondent since 2016 and Applicant is aware of this fact. If Applicant was the owner, he should have attached evidence like summons for eviction and or a declarator that he had a legal battle with first Respondent over ownership of the land.The application was properly before the court and a trust can sue and or be sued in its own name.The first Respondent had bona fide rights over the land and it obtained an offer letter before the Applicant did. First Respondent paid the full purchase price. The third Respondent is a subsidiary of the second Respondent and the by-laws to allow any developments. The second Respondent was part of the transaction. It wrote letters and received the purchase price as shown in Annexure C, the application for specific performance.The offer letter spelt out all the requirements of the agreements among the first Respondent, second Respondent and third Respondent. The first Respondent met all the requirements and sued second and third Respondents to compel them to perform. This culminated in the granting of the Lease Agreement. The first Respondent was simply enforcing contractual obligations. BALANCE OF CONVENIENCE This certainly does not favour the Applicant in that this is a mala fide application overtaken by events and the first Respondent was not aware of the existence of the Applicant’s interests in the piece of land as now alleged. Surely, since Applicant was aware of the existence of the first Respondent on the land, the question becomes why he did not take any legal action if he was the genuine owner of this piece of land. This inaction tends to show that the application is mala fide and meritless. It is noteworthy that the first respondent obtained its offer letter in 2016 while Applicant obtained his in 2017. Accordingly, the applicant is the one who should seek damages from the second Respondent. This route appears to be an uphill task in that Applicant clearly breached the contract by failing to pay timeously. As regards the requirements of an application in terms of r 29(1)(a) of this court’s rules, all that a party should show is that the order was granted erroneously. There is no need to show good and sufficient cause. The error should be that of the court. I take the view that in casu, there is no error committed by the court. The failure to cite applicant is not an error envisaged by the rules. It is not the court’s duty to go out looking for parties. In any event the Applicant is not privy to the contract between first Respondent and the second Respondent. In my view knowledge of the applicant would not have prevented the court from granting a default judgment in the circumstances. In my view, the relief does not include the setting aside of the lease agreement. The issuance of the lease is due to the existing contract between first and second Respondent. A separate application can be mounted to cancel the lease. The second Respondent did not oppose the application for specific performance. In fact, he proceeded to issue a lease to the first Respondent. A valid offer letter was issued to the first Respondent by the second respondent who accepted the full purchase price from the first respondent. It is common cause that the Applicant and first Respondent hold offer letters issued by the second respondent. No wonder at the hearing of this matter, the second Respondent submitted that he did not oppose the application for rescission by the applicant. DISPOSITION The applicant has failed to prove on a balance of probabilities that the default judgment was granted in error. ORDER The application for rescission of judgment in terms of s 29(1)(a) be and is hereby dismissed with costs. Takuva J:…………………………………. Nyamundanda & Mutimudje Attorney, applicant’s legal practitioners Zimudzi and Associates, first Respondent’s legal practitioners Civil Division of the Attorney General, second Respondent’s legal practitioners 4 HH 21-26 HCH 1466/25 4 HH 21-26 HCH 1466/25 BRUCE MACHINGURA versus MABVUKU TAFARA YOUTH EMPOWERMENT TRUST and MINISTRY OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING and URBAN DEVELOPMENT CORPORATION HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 26 November 2025 & 8 January 2026 Court Application for Rescission of Default Judgment M Nyakateka, for the Applicant T Charurira, for the 1st Respondent D Machingauta, for the 2nd Respondent No appearance for the 3rd Respondent TAKUVA J: This is an application for rescission of judgment in terms of r 29(1)(a) of the High Court Rules 2021. FACTUAL BACKGROUND The first respondent obtained an offer letter from the second and third respondents. He was supposed to get a lease agreement after payment of the purchase price. After payment of the purchase price, the first Respondent demanded to be given the lease agreement timeously. When this failed to materialise, the first Respondent sued the second and third Respondents for specific performance. The first Respondent got an order and a lease agreement from the second and third respondents. The Applicant is now approaching this Court with an application for rescission. It is common cause that the first respondent obtained an offer letter before the Applicant. Also, the first Respondent has been occupying the stand in question and that first respondent has a lease agreement. APPLICANT’S CASE The Applicant contended that his default was not wilful, there is a good cause why the judgment has to be set aside and that there is a bona fide defence on the merits. It was also submitted that the Applicant was offered stand 31501 of Caledonia Township for the development of a primary school by second Respondent who is the issuing authority. Subsequently, applicant was informed that he could not make a payment regarding stand in issue on 13 March 2025. On 17 March 2025, applicant visited the High Court where he was advised of the existence of the default order and that he should apply for its rescission. Applicant contends that his interest in the claim arises from his offer letter granted by the second respondent on 23 January 2017. He also contends that he has been making payments to the second respondent since 2018. The order sought by the first Respondent against second and third Respondent is in direct conflict with applicant interest in the land. It is Applicant’s submissions that he has good prospects of succession that the application ought to have been struck off the roll because first Respondent had incorrectly cited itself and that the first respondent did not have any rights over the land. Applicant argued that the balance of convenience favours the intervention of this Court as he was not cited in the application and not served with my papers. FIRST RESPONDENT’S CASE The application was opposed by the first respondent on the following grounds. IN LIMINE The application has been overtaken by events. MERITS 2.1 The application was properly granted. 2.2 The application does not affect any of applicant’s rights. 2.3 Applicant’s offer letter was issued after the offer letter of the first respondent which was dated 2016. The first respondent was the first to be offered the land and it paid in full after which it obtained title in the form of lease. 2.4 Applicant concedes that he did not pay the full purchase price within the stipulated 4 years. For nearly 9 years Applicant has not paid the full purchase price. 2.5 The first Respondent was not aware of the existence of the applicant. 2.6 Applicant has no prospects of success in that first respondent is in occupation of the land since 2016 and this shows applicant was aware that the land is occupied and he wanted to snatch the land away from the first respondent. The applicant’s interests are bogus in nature and his dishonestly warrants this application to be dismissed. 2.7 A trust can sue and be sued in its own name. 2.8 The first respondent met the requirements of specific performance by enforcing contractual rights. Finally, it was contended that the balance of convenience does not favour the applicant in that this is a bogus application overtaken by events and first respondent was not aware of the existence of the applicant’s interests in this piece of land in question. First Respondent prayed that the matter be dismissed with costs at attorney and client scale. THE LAW The first respondent raised a point in limine relating to the doctrine of mootness. The doctrine of mootness imposes a limitation on justiciability. The law on mootness was remarkably restated in Ndewere v President of Zimbabwe NO & Ors SC 57/22 where Makoni JA stated as follows:” “[37] A matter is moot if the dispute becomes academic by reason if changed circumstances, thus making the jurisdiction of the court unsustainable. [38] The issue was comprehensively dealt with the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19 at p 7 where it was held as follows: ‘A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances, the court’s jurisdiction ceases and the case becomes moot…The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a line dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept invitation to adjudicate on issues which are of such a nature that the decision sought will have no practical effect or result.”’ The above principle was followed in MDC & Ors v Mashavira & Ors SC 56/20 of p 33 where it was stated; “…a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties … [1] the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.” In casu, the application does not affect any of the applicant’s rights due to the fact that it has been overtaken by events and now moot and academic. It should be noted that the order which the applicant seeks to be rescinded has been acted upon and executed in that the first Respondent has obtained a lease agreement already from the second Respondent. This renders the entire matter moot and academic. This means that the court must decline its jurisdiction and strike the matter off the roll. Assuming that I am wrong on the legal issue of mootness there are other reasons why this matter cannot succeed. These are they; The default judgment was properly granted. The application does not affect any of the Applicants’ rights as he can still pursue them after whosoever he chooses. The first respondent did not have knowledge of the applicant since 2016, and first Respondent has been in occupation. The offer letter which is relied on by the Applicant was issued after the offer letter of the first Respondent which is dated 2016. Therefore, the first Respondent was the first to be offered the land and it paid in full after which it obtained a lease. The Applicant conceded that he did not pay the full purchase price in the undisputed 4-year tenure he was provided by the second Respondent. Clearly Applicant is in breach. The first Respondent was not aware of the existence of the Applicant and there was no other way the court could not grant an order for a which a party has paid the full purchase price timeously. PROSPECTS OF SUCCESS The land in disputed has been occupied by the first respondent since 2016 and Applicant is aware of this fact. If Applicant was the owner, he should have attached evidence like summons for eviction and or a declarator that he had a legal battle with first Respondent over ownership of the land. The application was properly before the court and a trust can sue and or be sued in its own name. The first Respondent had bona fide rights over the land and it obtained an offer letter before the Applicant did. First Respondent paid the full purchase price. The third Respondent is a subsidiary of the second Respondent and the by-laws to allow any developments. The second Respondent was part of the transaction. It wrote letters and received the purchase price as shown in Annexure C, the application for specific performance. The offer letter spelt out all the requirements of the agreements among the first Respondent, second Respondent and third Respondent. The first Respondent met all the requirements and sued second and third Respondents to compel them to perform. This culminated in the granting of the Lease Agreement. The first Respondent was simply enforcing contractual obligations. BALANCE OF CONVENIENCE This certainly does not favour the Applicant in that this is a mala fide application overtaken by events and the first Respondent was not aware of the existence of the Applicant’s interests in the piece of land as now alleged. Surely, since Applicant was aware of the existence of the first Respondent on the land, the question becomes why he did not take any legal action if he was the genuine owner of this piece of land. This inaction tends to show that the application is mala fide and meritless. It is noteworthy that the first respondent obtained its offer letter in 2016 while Applicant obtained his in 2017. Accordingly, the applicant is the one who should seek damages from the second Respondent. This route appears to be an uphill task in that Applicant clearly breached the contract by failing to pay timeously. As regards the requirements of an application in terms of r 29(1)(a) of this court’s rules, all that a party should show is that the order was granted erroneously. There is no need to show good and sufficient cause. The error should be that of the court. I take the view that in casu, there is no error committed by the court. The failure to cite applicant is not an error envisaged by the rules. It is not the court’s duty to go out looking for parties. In any event the Applicant is not privy to the contract between first Respondent and the second Respondent. In my view knowledge of the applicant would not have prevented the court from granting a default judgment in the circumstances. In my view, the relief does not include the setting aside of the lease agreement. The issuance of the lease is due to the existing contract between first and second Respondent. A separate application can be mounted to cancel the lease. The second Respondent did not oppose the application for specific performance. In fact, he proceeded to issue a lease to the first Respondent. A valid offer letter was issued to the first Respondent by the second respondent who accepted the full purchase price from the first respondent. It is common cause that the Applicant and first Respondent hold offer letters issued by the second respondent. No wonder at the hearing of this matter, the second Respondent submitted that he did not oppose the application for rescission by the applicant. DISPOSITION The applicant has failed to prove on a balance of probabilities that the default judgment was granted in error. ORDER The application for rescission of judgment in terms of s 29(1)(a) be and is hereby dismissed with costs. Takuva J:…………………………………. Nyamundanda & Mutimudje Attorney, applicant’s legal practitioners Zimudzi and Associates, first Respondent’s legal practitioners Civil Division of the Attorney General, second Respondent’s legal practitioners