Zizhou v Mbatha and Others (452 of 2025) [2025] ZWHHC 452 (30 July 2025)

13 HH 452-52 HCH-1397/25 Farai Bwatikona Zizhou versus Rita Marque Mbatha And Sheriff of Zimbabwe And Registrar of Deeds HIGH COURT OF ZIMBABWE CHIRAWU-MUGOMBA J HARARE 08, 30 JULY 2025 M.H. Chitsanga, for the Applicant 1st Respondent in person COURT APPLICATION FOR RESCISSION OF JUDGMENT BACKGROUND CHIRAWU-MUGOMBA J: On the 26th of November 2024, under HCH3766/24, this court gave the following order at a pre -trial conference, with the applicant in casu being the plaintiff and the first respondent being the first defendant and the second respondent being the second defendant, and the third respondent being the third defendant:- Application is granted.The 2nd defendant’s plea is hereby struck out. The deed of transfer no. 1484/2024 registered in favour of the 1st defendant on the 30th of April 2024 be and is hereby cancelled.The deed of transfer no. 6692/2007 registered in the names of the plaintiff and Clara Zizhou on the 18th of October 2007 be and is hereby revived.The 3rd defendant be and is hereby directed in respect of the relevant documents, to make the endorsements and entries necessary to give effect to paragraphs 3 and 4 of this court order.There shall be no order as to costs. Aggrieved by the decision, the first applicant launched an application for rescission of the above cited order under case number HCH 613/25. She obtained an order unopposed on the 12th of March 2025 to the following effect:- The application for rescission of the default judgment granted on 26th November 2024 under Case No. HCH 1397/2024 be and is hereby set aside.The default judgment issued on 26 November 2024 is hereby set aside. The 1st respondent be and is hereby ordered to properly serve the applicant with the pleadings in case number HCH 3766/24.The matter shall thereafter proceed in terms of the rules.There shall be no order as to costs. The tables turned and now it is the applicant who is aggrieved with the order in HCH 613/25 and seeks rescission in terms of Rule 27(1) of the High Court Rules, 2021. Essentially, this matter is a rescission of a rescission. The applicant thus seeks the following order. The Application be and is hereby granted. The Defaulted (sic) Judgment granted by this Court per Mambara J on the 12th of March 2025 be and is hereby rescinded. The Applicant be and is hereby granted leave to defend the proceedings in case number HCH613/25 and shall file his opposing papers within 10 days of this Order. The 1st Respondent shall pay costs of this application on Attorney and Client scale. THE APPLICATION The application can be summarised as follows. The applicant asserts that he was unaware of the proceedings under HCH 613/25. He only became aware of them at a criminal trial related to this matter where he is an accused person. The first respondent under cross examination made reference to the order in HCH 613/25 and the applicant through his legal practitioners immediately took action. It was verified through the Registrar that indeed an order had been obtained in HCH 613/25 that vacated the order in HCH 3766/24. Upon an internal investigation at his legal practitioners chambers, it became apparent that the first respondent had filed HCH 612/25 as well as HCH 613/25. However, the former was served but not the latter. The affidavit of service filed in support of HCH 613/25 falsely claimed that it had been served and not only that but served by the first respondent. As a matter of fact, HCH 612/25 had been served by an agent of the first respondent. The applicant was not in wilful default as asserted by the first respondent. In a manner of speaking, she literally snatched judgment. Additionally, HCH 613/25 that the applicant seeks to be vacated contains procedural flaws in that it was filed under R29(1) of the High Court Rules, 2021. That rule pertains to orders obtained in error. The order that the first respondent sought to be set aside was not obtained in error. It was obtained at a pre-trial conference after the Judge was satisfied that indeed the first respondent had been served with summons. The claim by the first respondent of a non-functional email address are self-serving as it is the one that she has been using on the IECMS system in litigation. She was aware of HCH 3766/24 as supported by her affidavit in a related matter. Had the Judge in HCH 613/25 been made aware of the correct background, he would have paid due regard to this. In relation to the prospects of success, the applicant asserts that he is in a good position in that respect unlike the first respondent. It is clear that the first respondent obtained title to the property in dispute through unlawful and unprocedural means. She did not pay the purchase price and did not fulfil the conditions of the sale in execution. Her title is thus tainted. THE OPPOSITION Preliminary issues The first respondent strenuously opposes the application and raises the following preliminary issues:- That the applicant has no locus standi having filed an application for rescission without complying with the order in HCH 613/25.The applicant is in contempt of court and thus non-suited to make the present application. On the merits, the first respondent defends the order in HCH 613/25. She avers that she is the owner of the immovable property in dispute and that the applicant is, ‘renting’ it from her. Her initial email address that she used on the IECMS system has been compromised though the platform has not been. The applicant was well aware of the proceedings in HCH 613/25 and his assertion to the contrary is not worth of belief. He has not attached a supporting affidavit from the receptionist or secretary of his legal practitioners firm to back his assertions. She denies having received summons in HCH 3677/24 and asserts that the applicant deliberately snatched judgment by instructing that service of the summons be effected at an address that he knew she was no longer residing at. She was therefore not in wilful default in that matter as asserted by the applicant. The Magistrate Court criminal matter has no bearing on HCH 613/25. Additionally, that the applicant has proceeded erroneously under R27(1) of the High Court Rules, 2021. ANSWERING AFFIDAVIT The gist of the answering affidavit is as follows. The preliminary issues raised by the first respondent have no merit. The matter is an application for rescission of judgment and the applicant cannot be non-suited on that basis. The first respondent on service, ought to simply have attached a document bearing the stamp of the applicant’s legal practitioners to show that indeed the application under HCH 613/25 had been served. Additionally, no evidence of the compromised email had been attached. SUBMISSIONS In her heads of argument and submissions in motivating the preliminary issues raised, the first respondent seemingly expanded these as follows. That jurisdiction should be declined in that the application before the court is a patent nullity. In her view, once there is an extant court order, it must be complied with first before approaching the court with an application for rescission of judgment. She also relied on the principles set out in Garwe v Garwe HH 641-18, for the proposition that the authority and dignity of the courts should not be demeaned and every litigant must abide by a court order. She also relied on the decisions in Magauzi & Anor v Jekera SC 54/22 and Chiwenga v Chiwenga SC 2/14. She contended that there is no valid application before the court due to the applicant making disparaging comments about the court. That nothing stands on nothing. She relied on this proposition on Macfoy v. United Africa Co. Ltd. (1961) 3 ALL ER 1169. Further that a Judge of the same jurisdiction cannot set aside or review the decision of another where a party has specifically been directed to comply with an order- Unitrack (Pvt) Ltd v Telone (Pvt) Ltd, SC 18-2010. She also relied on the principle of stare decisis on the need to respect and comply with court orders. In response, M.H Chitsanga, for the applicant submitted that there was no other way for the judgment to be vacated except for an application for rescission of judgment. On the merits the applicant contended that the requirements for an application for rescission of judgment had been met by the applicant. Reliance was placed on the following case, RYDALE RIDGE PARK (PRIVATE) LIMITED v RUTH MURIDZO N.O. SC 17-23 where it was held as follows “The requirements for the setting aside of a judgment granted in default have been enunciated in numerous case authorities including Zinondo v CAFCA Limited SC 64/17 where at p 4 of the judgment, the Court stated: “In an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order. In Makoni v CBZ Bank Limited HH 357-16, CHITAKUNYE J quoted the case of Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173D-F wherein GUBBAY CJ aptly noted that: - ‘The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.’” The applicant justified the order for costs on a higher scale on the basis of what he viewed as deceptive practices by the first respondent. On the other hand, the first respondent focused on the prospects of success in relation to the sale in execution that resulted in her obtaining the property. She submitted that it is common cause that she holds title to the property- Section 14 of the Deeds Registries Act, [Chapter 20:05]. She therefore holds real rights that can be vindicated against any individual. She went on to outline the amounts she paid for transfer of half-share of the property into her name. She prayed for a dismissal of the application with costs. THE LEGAL ISSUES FOR DETERMINATION In my view, three legal issues arise and these are as follows:- Does the applicant have locus standi to institute these proceedings without first having complied with the order in HCH 613/25?Have the requirements for setting aside of a default judgment been met by the applicant?In the event that the application is successful, is the applicant entitled to an order of costs on an attorney-client scale? THE LAW The law on locus standi has been well articulated in this jurisdiction. In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC 49/18, HLATSHWAYO JA considered the principle of locus standi and stated the following: “It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish locus standi, a party must show a direct and substantial interest in the matter. See United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (c) at 415 A-C and Matambanadzo v Goven SC 23-04. The law on rescission of judgment obtained in default perhaps more than any other aspect of the High Court Rules, has been articulated in many a decision. It is still worth articulating. Rule 27 provides as follows. “27(1) A party whom judgment has been given in default, whether under these rules or under any other law may make a court application not later than one month after he has had knowledge of the judgment to be set aside, and thereafter the rules of court relating to the filing of opposing heads of argument and set down of opposed matters, if opposed shall apply. (2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute the action on such terms as to costs and otherwise as the court considers just.” To be able to have a successful rescission, the applicant needs to show good and sufficient cause. See Maheya v Independent African Church SC 58-07. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S) at 369E–H;370A, it was held as follows, “While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule that when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803 H-I: ‘More specifically, in the context of a default judgment, ‘wilful’ connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation, for this conduct might be.” More poignantly, the elements of good and sufficient cause have been laid out as follows. In Stockil v Griffiths 1992 (1) ZLR 172(S) at 173D-F GUBBAY CJ aptly noted that:- “The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86(not reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default ;(ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.” APPLICATION OF THE LAW TO THE FACTS AND ANALYSIS At the hearing, I attempted to nudge the parties towards the elephant in the room, that is the issue of the immovable property now registered in the names of the applicant and first respondent. The parties were seemingly not moved thus adding to the layer of the many cases that have been litigated in the courts involving these two parties. While indeed parties must abide by court orders, I am not aware of any law or rule that non-suits a party from making an application for rescission of judgment in terms of the rules. Whether it is granted or not is another issue. I am also cognisant that if a party does not file the application within the expected time frame, they must apply for condonation. But I do not read that to mean that they should first comply with the order sought to be rescinded as contended by the first applicant. There cannot be any issue of locus standi because the rules actually clothe a party who has had judgment entered against them with the legal capacity to apply for the vacating of the judgment or order. This is precisely the situation in casu. I agree with the submissions by the applicant’s counsel that there is no other way of seeking that the judgment in HCH 613/25 be set aside except through an application in terms of s27 of the rules. The issue of contempt of court is not before me and I cannot make a pronouncement on a phantom issue. I therefore dismiss the preliminary issues raised by the first respondent in toto. On the merits I am satisfied that the applicant has given a reasonable explanation for not defending the proceedings in HCH 613/25. It has not been denied by the first respondent that there was indeed a process in the criminal courts that resulted in applicant becoming aware of the judgment in HCH 613/25. The actions taken by the applicant show that he is a party who had he known about the application, he would have taken steps to answer to them. The contention that there should have been a supporting affidavit from the secretary or receptionist in my view does not hold water. It has not been denied that the first respondent filed both HCH 612 and 613/25 and she has not shown evidence to the contrary that she did serve HCH 613/25 on the applicant’s legal practitioners. There is no reason why the applicant would sit on his laurels and oppose the application in HCH 612/25 and not HCH 613/25. In any event, a default judgment invariably stands on a slippery slope. It reminds me of an African idiom about a cow that one can only be satisfied with after milking it. The feeble attempt by the first respondent to lay blame on an alleged compromised email in the IECMS system does not hold sway. She did not deny using the same email in proceedings before the courts. In my view, the first respondent under HCH 613/25 clearly snatched judgment, a practice that courts frown upon. But perhaps more poignantly again, there is something to be said about the transfer of half share of the immovable property that is the basis of the summons under HCH 3677/24. That matter becomes important in relation to the prospects of success. The contentions by the applicant that the transfer is tainted in my view deserve consideration. The first respondent has simply refuted them and unprocedurally pleaded her case in heads of argument outlining the amount she claims to have paid for the transfer. The applicant deserves to be heard in HCH 613/25 so that the court can make a fully informed decision on whether HCH 3677/24 ought to be vacated or not. On costs, although the applicant has prayed for an order of costs on a legal -practitioner and client scale, I see no reason for this prayer. The parties have literally been at each other with a flurry of litigation. If anything, the applicant deserves an order of costs as I see no reason from departing from the trite position that costs are generally awarded in favour of the successful party especially in non-constitutional matters. I will therefore award costs on the ordinary scale. DISPOSITION The applicant has shown good and sufficient cause for the rescission of judgment granted under HCH 613/25. That matter remains alive in the sense that the applicant will have an opportunity to respond to it. It is accordingly ordered as follows:- The application for rescission of judgment be and is hereby granted. The judgment in HCH 613/25 granted in default on the 12th of March 2025 be and is hereby set aside in its entirety. The applicant shall within a period of ten (10) days from the date of this order file under HCH 613/25 his notice of opposition and opposing affidavit and thereafter the matter shall proceed in terms of the rules. The first respondent shall pay costs on the ordinary scale. Mutandiro, Chitsanga, and Chitima Attorneys - for the Applicant 13 HH 452-52 HCH-1397/25 13 HH 452-52 HCH-1397/25 Farai Bwatikona Zizhou versus Rita Marque Mbatha And Sheriff of Zimbabwe And Registrar of Deeds HIGH COURT OF ZIMBABWE CHIRAWU-MUGOMBA J HARARE 08, 30 JULY 2025 M.H. Chitsanga, for the Applicant 1st Respondent in person COURT APPLICATION FOR RESCISSION OF JUDGMENT BACKGROUND CHIRAWU-MUGOMBA J: On the 26th of November 2024, under HCH3766/24, this court gave the following order at a pre -trial conference, with the applicant in casu being the plaintiff and the first respondent being the first defendant and the second respondent being the second defendant, and the third respondent being the third defendant:- Application is granted. The 2nd defendant’s plea is hereby struck out. The deed of transfer no. 1484/2024 registered in favour of the 1st defendant on the 30th of April 2024 be and is hereby cancelled. The deed of transfer no. 6692/2007 registered in the names of the plaintiff and Clara Zizhou on the 18th of October 2007 be and is hereby revived. The 3rd defendant be and is hereby directed in respect of the relevant documents, to make the endorsements and entries necessary to give effect to paragraphs 3 and 4 of this court order. There shall be no order as to costs. Aggrieved by the decision, the first applicant launched an application for rescission of the above cited order under case number HCH 613/25. She obtained an order unopposed on the 12th of March 2025 to the following effect:- The application for rescission of the default judgment granted on 26th November 2024 under Case No. HCH 1397/2024 be and is hereby set aside. The default judgment issued on 26 November 2024 is hereby set aside. The 1st respondent be and is hereby ordered to properly serve the applicant with the pleadings in case number HCH 3766/24. The matter shall thereafter proceed in terms of the rules. There shall be no order as to costs. The tables turned and now it is the applicant who is aggrieved with the order in HCH 613/25 and seeks rescission in terms of Rule 27(1) of the High Court Rules, 2021. Essentially, this matter is a rescission of a rescission. The applicant thus seeks the following order. The Application be and is hereby granted. The Defaulted (sic) Judgment granted by this Court per Mambara J on the 12th of March 2025 be and is hereby rescinded. The Applicant be and is hereby granted leave to defend the proceedings in case number HCH613/25 and shall file his opposing papers within 10 days of this Order. The 1st Respondent shall pay costs of this application on Attorney and Client scale. THE APPLICATION The application can be summarised as follows. The applicant asserts that he was unaware of the proceedings under HCH 613/25. He only became aware of them at a criminal trial related to this matter where he is an accused person. The first respondent under cross examination made reference to the order in HCH 613/25 and the applicant through his legal practitioners immediately took action. It was verified through the Registrar that indeed an order had been obtained in HCH 613/25 that vacated the order in HCH 3766/24. Upon an internal investigation at his legal practitioners chambers, it became apparent that the first respondent had filed HCH 612/25 as well as HCH 613/25. However, the former was served but not the latter. The affidavit of service filed in support of HCH 613/25 falsely claimed that it had been served and not only that but served by the first respondent. As a matter of fact, HCH 612/25 had been served by an agent of the first respondent. The applicant was not in wilful default as asserted by the first respondent. In a manner of speaking, she literally snatched judgment. Additionally, HCH 613/25 that the applicant seeks to be vacated contains procedural flaws in that it was filed under R29(1) of the High Court Rules, 2021. That rule pertains to orders obtained in error. The order that the first respondent sought to be set aside was not obtained in error. It was obtained at a pre-trial conference after the Judge was satisfied that indeed the first respondent had been served with summons. The claim by the first respondent of a non-functional email address are self-serving as it is the one that she has been using on the IECMS system in litigation. She was aware of HCH 3766/24 as supported by her affidavit in a related matter. Had the Judge in HCH 613/25 been made aware of the correct background, he would have paid due regard to this. In relation to the prospects of success, the applicant asserts that he is in a good position in that respect unlike the first respondent. It is clear that the first respondent obtained title to the property in dispute through unlawful and unprocedural means. She did not pay the purchase price and did not fulfil the conditions of the sale in execution. Her title is thus tainted. THE OPPOSITION Preliminary issues The first respondent strenuously opposes the application and raises the following preliminary issues:- That the applicant has no locus standi having filed an application for rescission without complying with the order in HCH 613/25. The applicant is in contempt of court and thus non-suited to make the present application. On the merits, the first respondent defends the order in HCH 613/25. She avers that she is the owner of the immovable property in dispute and that the applicant is, ‘renting’ it from her. Her initial email address that she used on the IECMS system has been compromised though the platform has not been. The applicant was well aware of the proceedings in HCH 613/25 and his assertion to the contrary is not worth of belief. He has not attached a supporting affidavit from the receptionist or secretary of his legal practitioners firm to back his assertions. She denies having received summons in HCH 3677/24 and asserts that the applicant deliberately snatched judgment by instructing that service of the summons be effected at an address that he knew she was no longer residing at. She was therefore not in wilful default in that matter as asserted by the applicant. The Magistrate Court criminal matter has no bearing on HCH 613/25. Additionally, that the applicant has proceeded erroneously under R27(1) of the High Court Rules, 2021. ANSWERING AFFIDAVIT The gist of the answering affidavit is as follows. The preliminary issues raised by the first respondent have no merit. The matter is an application for rescission of judgment and the applicant cannot be non-suited on that basis. The first respondent on service, ought to simply have attached a document bearing the stamp of the applicant’s legal practitioners to show that indeed the application under HCH 613/25 had been served. Additionally, no evidence of the compromised email had been attached. SUBMISSIONS In her heads of argument and submissions in motivating the preliminary issues raised, the first respondent seemingly expanded these as follows. That jurisdiction should be declined in that the application before the court is a patent nullity. In her view, once there is an extant court order, it must be complied with first before approaching the court with an application for rescission of judgment. She also relied on the principles set out in Garwe v Garwe HH 641-18, for the proposition that the authority and dignity of the courts should not be demeaned and every litigant must abide by a court order. She also relied on the decisions in Magauzi & Anor v Jekera SC 54/22 and Chiwenga v Chiwenga SC 2/14. She contended that there is no valid application before the court due to the applicant making disparaging comments about the court. That nothing stands on nothing. She relied on this proposition on Macfoy v. United Africa Co. Ltd. (1961) 3 ALL ER 1169. Further that a Judge of the same jurisdiction cannot set aside or review the decision of another where a party has specifically been directed to comply with an order- Unitrack (Pvt) Ltd v Telone (Pvt) Ltd, SC 18-2010. She also relied on the principle of stare decisis on the need to respect and comply with court orders. In response, M.H Chitsanga, for the applicant submitted that there was no other way for the judgment to be vacated except for an application for rescission of judgment. On the merits the applicant contended that the requirements for an application for rescission of judgment had been met by the applicant. Reliance was placed on the following case, RYDALE RIDGE PARK (PRIVATE) LIMITED v RUTH MURIDZO N.O. SC 17-23 where it was held as follows “The requirements for the setting aside of a judgment granted in default have been enunciated in numerous case authorities including Zinondo v CAFCA Limited SC 64/17 where at p 4 of the judgment, the Court stated: “In an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order. In Makoni v CBZ Bank Limited HH 357-16, CHITAKUNYE J quoted the case of Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173D-F wherein GUBBAY CJ aptly noted that: - ‘The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.’” The applicant justified the order for costs on a higher scale on the basis of what he viewed as deceptive practices by the first respondent. On the other hand, the first respondent focused on the prospects of success in relation to the sale in execution that resulted in her obtaining the property. She submitted that it is common cause that she holds title to the property- Section 14 of the Deeds Registries Act, [Chapter 20:05]. She therefore holds real rights that can be vindicated against any individual. She went on to outline the amounts she paid for transfer of half-share of the property into her name. She prayed for a dismissal of the application with costs. THE LEGAL ISSUES FOR DETERMINATION In my view, three legal issues arise and these are as follows:- Does the applicant have locus standi to institute these proceedings without first having complied with the order in HCH 613/25? Have the requirements for setting aside of a default judgment been met by the applicant? In the event that the application is successful, is the applicant entitled to an order of costs on an attorney-client scale? THE LAW The law on locus standi has been well articulated in this jurisdiction. In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC 49/18, HLATSHWAYO JA considered the principle of locus standi and stated the following: “It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish locus standi, a party must show a direct and substantial interest in the matter. See United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (c) at 415 A-C and Matambanadzo v Goven SC 23-04. The law on rescission of judgment obtained in default perhaps more than any other aspect of the High Court Rules, has been articulated in many a decision. It is still worth articulating. Rule 27 provides as follows. “27(1) A party whom judgment has been given in default, whether under these rules or under any other law may make a court application not later than one month after he has had knowledge of the judgment to be set aside, and thereafter the rules of court relating to the filing of opposing heads of argument and set down of opposed matters, if opposed shall apply. (2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute the action on such terms as to costs and otherwise as the court considers just.” To be able to have a successful rescission, the applicant needs to show good and sufficient cause. See Maheya v Independent African Church SC 58-07. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S) at 369E–H;370A, it was held as follows, “While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule that when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803 H-I: ‘More specifically, in the context of a default judgment, ‘wilful’ connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation, for this conduct might be.” More poignantly, the elements of good and sufficient cause have been laid out as follows. In Stockil v Griffiths 1992 (1) ZLR 172(S) at 173D-F GUBBAY CJ aptly noted that:- “The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86(not reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default ;(ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.” APPLICATION OF THE LAW TO THE FACTS AND ANALYSIS At the hearing, I attempted to nudge the parties towards the elephant in the room, that is the issue of the immovable property now registered in the names of the applicant and first respondent. The parties were seemingly not moved thus adding to the layer of the many cases that have been litigated in the courts involving these two parties. While indeed parties must abide by court orders, I am not aware of any law or rule that non-suits a party from making an application for rescission of judgment in terms of the rules. Whether it is granted or not is another issue. I am also cognisant that if a party does not file the application within the expected time frame, they must apply for condonation. But I do not read that to mean that they should first comply with the order sought to be rescinded as contended by the first applicant. There cannot be any issue of locus standi because the rules actually clothe a party who has had judgment entered against them with the legal capacity to apply for the vacating of the judgment or order. This is precisely the situation in casu. I agree with the submissions by the applicant’s counsel that there is no other way of seeking that the judgment in HCH 613/25 be set aside except through an application in terms of s27 of the rules. The issue of contempt of court is not before me and I cannot make a pronouncement on a phantom issue. I therefore dismiss the preliminary issues raised by the first respondent in toto. On the merits I am satisfied that the applicant has given a reasonable explanation for not defending the proceedings in HCH 613/25. It has not been denied by the first respondent that there was indeed a process in the criminal courts that resulted in applicant becoming aware of the judgment in HCH 613/25. The actions taken by the applicant show that he is a party who had he known about the application, he would have taken steps to answer to them. The contention that there should have been a supporting affidavit from the secretary or receptionist in my view does not hold water. It has not been denied that the first respondent filed both HCH 612 and 613/25 and she has not shown evidence to the contrary that she did serve HCH 613/25 on the applicant’s legal practitioners. There is no reason why the applicant would sit on his laurels and oppose the application in HCH 612/25 and not HCH 613/25. In any event, a default judgment invariably stands on a slippery slope. It reminds me of an African idiom about a cow that one can only be satisfied with after milking it. The feeble attempt by the first respondent to lay blame on an alleged compromised email in the IECMS system does not hold sway. She did not deny using the same email in proceedings before the courts. In my view, the first respondent under HCH 613/25 clearly snatched judgment, a practice that courts frown upon. But perhaps more poignantly again, there is something to be said about the transfer of half share of the immovable property that is the basis of the summons under HCH 3677/24. That matter becomes important in relation to the prospects of success. The contentions by the applicant that the transfer is tainted in my view deserve consideration. The first respondent has simply refuted them and unprocedurally pleaded her case in heads of argument outlining the amount she claims to have paid for the transfer. The applicant deserves to be heard in HCH 613/25 so that the court can make a fully informed decision on whether HCH 3677/24 ought to be vacated or not. On costs, although the applicant has prayed for an order of costs on a legal -practitioner and client scale, I see no reason for this prayer. The parties have literally been at each other with a flurry of litigation. If anything, the applicant deserves an order of costs as I see no reason from departing from the trite position that costs are generally awarded in favour of the successful party especially in non-constitutional matters. I will therefore award costs on the ordinary scale. DISPOSITION The applicant has shown good and sufficient cause for the rescission of judgment granted under HCH 613/25. That matter remains alive in the sense that the applicant will have an opportunity to respond to it. It is accordingly ordered as follows:- The application for rescission of judgment be and is hereby granted. The judgment in HCH 613/25 granted in default on the 12th of March 2025 be and is hereby set aside in its entirety. The applicant shall within a period of ten (10) days from the date of this order file under HCH 613/25 his notice of opposition and opposing affidavit and thereafter the matter shall proceed in terms of the rules. The first respondent shall pay costs on the ordinary scale. Mutandiro, Chitsanga, and Chitima Attorneys - for the Applicant