Rodrigues v Stipzkopfarm Residents Association (453 of 2025) [2025] ZWHHC 453 (30 July 2025)

2 HH 453 - 25 HCH 3671/24 DIANA CATHERINE RODRIGUES versus STIPZKOPFARM RESIDENTS ASSOCIATION and REGISTRAR OF DEEDS and UREBAI RODRIGUES and TINASHE MANAZVA HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 31 January & 30 July 2025 Court Application For Rescission Default Judgment T Mpofu, for the applicant Zhuwarara, for the second and third respondents No appearance for first respondent TAKUVA J: This is a court application for rescission of a default judgment in terms of r 27(1) of the High Court Rules 2021. The default judgment was granted on 26 November 2020 under case No. HC 3862/20. Background Facts The applicant claims to be the registered owner of LOT 10A and LOT 11 of SPITZKOP registered under Deed of Transfer Number 2568/88. The same property was placed under the name of the respondent through an order granted under case HCH 3862/20 on 26 November 2020. The order was granted in default of the applicant in this matter. Applicant was dissatisfied hence this application. At the hearing Adv. Mpofu rose and motivated his case by raising what he called a point in limine namely that the order to be rescinded was one that was ordered against a dead person. He submitted that the first respondent should have carried out a diligent search to establish the fourth respondent’s status. He further argued that there was no proper service on the applicant in that the notice simply “notified any interested parties” of the hearing through the Herald Newspapers. The notice in the newspaper cited the fourth respondent as the first respondent and the remaining parties only as “others”. The notice filed of record also cites a different Deed number from the one the applicant claims to own. On this basis, applicant contended that her failure to appear at the hearing was not wilful. It was also argued that the court was not aware that the (fourth respondents in casu) first respondent in that case was deceased. In that respect the court can opt to grant rescission in terms of r 29 of the Rules of this court. Finally, it was argued that the citation of the fourth respondent by the applicant in this application is not fatal as it is a duplication of how the parties were cited in the main matter. Advocate Zhuwarara for the first and second respondent contended that the applicant was in wilful default as she was properly served. As regards the citation of a deceased person he submitted that applicant did not place any evidence before the court to prove that at the time the process was issued or at the time the order was granted the fourth respondent had passed on. According to him the onus is on the applicant to establish this point. He also criticized the applicant for committing the same error of citing a dead person (the fourth respondent). The point being that applicant’s argument also work against her. THE LAW AND ANALYSIS The starting point is rule 27 of High Court Rules. In STOCKHILL v GRIFFTHS 1992 (1) ZLR 172 (S), the requirements were set out as; The reasonableness of the applicant’s explanation for the default.The bonafides of the applicant to rescind the judgmentThe bonafides of the defence on the merits of the case which carries some prospects of success. In Sinikiwe Dhiliwayo v John Tranos Matukutire HH 326/23, it was stated that the key requirement is that an applicant must demonstrate that there is good and sufficient cause. The above requirements must be regarded in conjunction. As regards the reasonableness of the applicant’s explanation. It is common cause that the first and second respondents were granted a default order by this court under HCH 3862/20 on 26 November 2020. They had approached this court through the Chamber Book for an order in terms of the Titles Registration and Derelict Lands Act. The respondents indicated in the record that the applicant’s whereabouts were “unknown”. They also advertised their provisional and final order in the Herald Newspapers though relating to a different Deed number from that of the applicant). The application and founding affidavit as well as the Draft Order referred to Deed of Transfer Number 2563/88 which does not belong to the applicant or relate to her land. Further, the applicant’s name was not cited in full in that the adverts cited “UREBAI RODRIGUES & OTHERS. The question is who is “others?” The applicant has strength in both the explanation of the default and the strong defence on the merits. It is common cause the first respondent did not serve the applicant despite a clear and acceptable address for the applicant in the Zvimba RDC Record being P.O Box 1593 Harare, see R 9(6)(b), R 12(14), 15(7), 15(16), 20(3)(d) and the forms of the High Court Rules 2021 as authority that postal service is regarded as valid in our law. It is also reasonable that a person of the applicant’s age (78 years) may not see any advert in the newspaper. It is common cause that at the time of Covid 19, those of appellant’s age chose to stay home and avoid the risk of contracting Covid 19. In the circumstances, I find that the applicant was not notified of the proceedings against her. On the merits, the founding affidavit shows good prospects. The first respondent failed to prove a case entitling it to an order for transfer of the property. The founding affidavit shows the shortcomings or errors, making it possible for the court to elect to proceed in terms of r 27 or r 29 – Barbarosa DESA v Barbarosa DESA SC 34/16. It is not denied that all the provisional orders were based on a wrong deed number DEED OF TRANSFER 2563/88 instead of 2568/88 which affects the proper description of the property and the whole application. Also, the provisional order of 9 October 2020 mandated that the order be advertised in a newspaper circulating in Zimbabwe. The Herald Newspaper circulates in Harare and surrounding areas only. Therefore the advertising was not in compliance with the order. The applicant smuggled a correct deed number in the final order sought despite the fact that the application and the founding affidavit referred to a different deed number, and by extension, different property. As regards the preliminary point raised by the applicant relating to the court having granted a default order against a dead person, I take the view that this point is devoid of merit for the simple reason that the applicant failed to prove that the fourth respondent had passed on at the time the order was granted. The onus is clearly on the applicant. The first respondent’s point in limine on the same facts lacks merit in my view in that the applicant can not alter the parties cited in a case she is challenging. She is bound to follow the citation depicted in the order. Accordingly, the citation of the fourth respondent is not fatal to it’s application. As regards the bar to in terms of section 8 of the Titles Registration and Derelict Lands Act, my view is that there is evidence to show that this section was not properly invoked. In the result I am satisfied that the applicant has shown good and sufficient cause why the default order should be rescinded. Accordingly it is ordered that; The default judgment granted on 26 November 2020 in case number HC 3862/20 be and is hereby rescinded.The applicant is given leave to file her opposition papers within ten (10) days of granting this order.The first and second respondents be and are hereby ordered to pay costs of suit. Takuva J: ………………………………………… B Ngwenya Legal Practitioners, for the applicant Lawman Law Chambers, for the respondents 2 HH 453 - 25 HCH 3671/24 2 HH 453 - 25 HCH 3671/24 DIANA CATHERINE RODRIGUES versus STIPZKOPFARM RESIDENTS ASSOCIATION and REGISTRAR OF DEEDS and UREBAI RODRIGUES and TINASHE MANAZVA HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 31 January & 30 July 2025 Court Application For Rescission Default Judgment T Mpofu, for the applicant Zhuwarara, for the second and third respondents No appearance for first respondent TAKUVA J: This is a court application for rescission of a default judgment in terms of r 27(1) of the High Court Rules 2021. The default judgment was granted on 26 November 2020 under case No. HC 3862/20. Background Facts The applicant claims to be the registered owner of LOT 10A and LOT 11 of SPITZKOP registered under Deed of Transfer Number 2568/88. The same property was placed under the name of the respondent through an order granted under case HCH 3862/20 on 26 November 2020. The order was granted in default of the applicant in this matter. Applicant was dissatisfied hence this application. At the hearing Adv. Mpofu rose and motivated his case by raising what he called a point in limine namely that the order to be rescinded was one that was ordered against a dead person. He submitted that the first respondent should have carried out a diligent search to establish the fourth respondent’s status. He further argued that there was no proper service on the applicant in that the notice simply “notified any interested parties” of the hearing through the Herald Newspapers. The notice in the newspaper cited the fourth respondent as the first respondent and the remaining parties only as “others”. The notice filed of record also cites a different Deed number from the one the applicant claims to own. On this basis, applicant contended that her failure to appear at the hearing was not wilful. It was also argued that the court was not aware that the (fourth respondents in casu) first respondent in that case was deceased. In that respect the court can opt to grant rescission in terms of r 29 of the Rules of this court. Finally, it was argued that the citation of the fourth respondent by the applicant in this application is not fatal as it is a duplication of how the parties were cited in the main matter. Advocate Zhuwarara for the first and second respondent contended that the applicant was in wilful default as she was properly served. As regards the citation of a deceased person he submitted that applicant did not place any evidence before the court to prove that at the time the process was issued or at the time the order was granted the fourth respondent had passed on. According to him the onus is on the applicant to establish this point. He also criticized the applicant for committing the same error of citing a dead person (the fourth respondent). The point being that applicant’s argument also work against her. THE LAW AND ANALYSIS The starting point is rule 27 of High Court Rules. In STOCKHILL v GRIFFTHS 1992 (1) ZLR 172 (S), the requirements were set out as; The reasonableness of the applicant’s explanation for the default. The bonafides of the applicant to rescind the judgment The bonafides of the defence on the merits of the case which carries some prospects of success. In Sinikiwe Dhiliwayo v John Tranos Matukutire HH 326/23, it was stated that the key requirement is that an applicant must demonstrate that there is good and sufficient cause. The above requirements must be regarded in conjunction. As regards the reasonableness of the applicant’s explanation. It is common cause that the first and second respondents were granted a default order by this court under HCH 3862/20 on 26 November 2020. They had approached this court through the Chamber Book for an order in terms of the Titles Registration and Derelict Lands Act. The respondents indicated in the record that the applicant’s whereabouts were “unknown”. They also advertised their provisional and final order in the Herald Newspapers though relating to a different Deed number from that of the applicant). The application and founding affidavit as well as the Draft Order referred to Deed of Transfer Number 2563/88 which does not belong to the applicant or relate to her land. Further, the applicant’s name was not cited in full in that the adverts cited “UREBAI RODRIGUES & OTHERS. The question is who is “others?” The applicant has strength in both the explanation of the default and the strong defence on the merits. It is common cause the first respondent did not serve the applicant despite a clear and acceptable address for the applicant in the Zvimba RDC Record being P.O Box 1593 Harare, see R 9(6)(b), R 12(14), 15(7), 15(16), 20(3)(d) and the forms of the High Court Rules 2021 as authority that postal service is regarded as valid in our law. It is also reasonable that a person of the applicant’s age (78 years) may not see any advert in the newspaper. It is common cause that at the time of Covid 19, those of appellant’s age chose to stay home and avoid the risk of contracting Covid 19. In the circumstances, I find that the applicant was not notified of the proceedings against her. On the merits, the founding affidavit shows good prospects. The first respondent failed to prove a case entitling it to an order for transfer of the property. The founding affidavit shows the shortcomings or errors, making it possible for the court to elect to proceed in terms of r 27 or r 29 – Barbarosa DESA v Barbarosa DESA SC 34/16. It is not denied that all the provisional orders were based on a wrong deed number DEED OF TRANSFER 2563/88 instead of 2568/88 which affects the proper description of the property and the whole application. Also, the provisional order of 9 October 2020 mandated that the order be advertised in a newspaper circulating in Zimbabwe. The Herald Newspaper circulates in Harare and surrounding areas only. Therefore the advertising was not in compliance with the order. The applicant smuggled a correct deed number in the final order sought despite the fact that the application and the founding affidavit referred to a different deed number, and by extension, different property. As regards the preliminary point raised by the applicant relating to the court having granted a default order against a dead person, I take the view that this point is devoid of merit for the simple reason that the applicant failed to prove that the fourth respondent had passed on at the time the order was granted. The onus is clearly on the applicant. The first respondent’s point in limine on the same facts lacks merit in my view in that the applicant can not alter the parties cited in a case she is challenging. She is bound to follow the citation depicted in the order. Accordingly, the citation of the fourth respondent is not fatal to it’s application. As regards the bar to in terms of section 8 of the Titles Registration and Derelict Lands Act, my view is that there is evidence to show that this section was not properly invoked. In the result I am satisfied that the applicant has shown good and sufficient cause why the default order should be rescinded. Accordingly it is ordered that; The default judgment granted on 26 November 2020 in case number HC 3862/20 be and is hereby rescinded. The applicant is given leave to file her opposition papers within ten (10) days of granting this order. The first and second respondents be and are hereby ordered to pay costs of suit. Takuva J: ………………………………………… B Ngwenya Legal Practitioners, for the applicant Lawman Law Chambers, for the respondents