KABANDA versus KABANDA and Others (298 of 2025) [2025] ZWHHC 298 (11 June 2025)

2 HH 298-25 HC 9129/19 HC 06/20 Case A: HC 9129/19 PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and CLOETE MUNJOMA and SARAH MUNJOMA and SEEFF PROPERTIES and THE SHERIFF OF ZIMBABWE Case B: HC 6/20 PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and CLOETE MUNJOMA and SARAH MUNJOMA and SEEFF PROPERTIES and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O and THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 11 June 2025 Opposed Matter S Chimedza, for the applicant T L Mapuranga, for the 1st respondent R T Mutero, for the 2nd and 3rd respondents CHITAPI J: This judgment disposes of two applications separately filed by the applicant Patience Nyasha Kabanda being case no HC 9129/19 and HC 06/20. The first respondent as with the second and third respondents being Gabriel Kabanda, Cloete Munjoma and Sarah Munjoma respectively are common in both cases. The Sheriff for Zimbabwe is cited in both cases. Seef Properties cited as the fourth respondent as with the Sheriff for Zimbabwe and the Registrar of Deeds as the sixth respondent in case no. HC 6/20 did not file any papers in the matter and are non-participants. The real protagonists and their relationship in relation to the subject matter herein as will be explained are the applicant and the first respondent to began with. The two were husband and wife until this court divorced them by its order granted in case No HC 7833/13. The court divorced them on 2 February 2016 per MUNANGATI-MANONGWA J. A consent paper executed by the applicant and the first respondent and incorporated as part of the divorce order provided inter alia for the sharing of a fixed property called stand 159 Philadelphia Township of Philita of Gnomewood of Philadelphia in the proportion of 40% to the first respondent herein and 60% to the applicant. The disposal of this property is topical in the dispute and is central to both applications. It is advised to record herein what the consent paper provided for in regard to how the distribution of that property was to devolve. Paragraphs 9.1 – 9.4 of the consent paper reads as follows: “9.1 The property shall be valued by a valuer on the Master of the High Court list appointed by the Registrar of High Court. The valuation shall be done within fourteen days from the date of this order with the cost of valuation being borne by both parties in equal shares.The defendant be and is hereby given the option to buy out the plaintiff’s 40% share in the property within a period of six months from the date of the Registrars confirmation of the availability of the valuation report.Should the defendant fail to buy out the plaintiff’s share within the prescribed period, then the property shall be sold by an estate agent appointed by the Registrar of this Honourable Court with the net proceeds being shared between the parties in the agreed proportions.” The first respondent as a beneficiary in the property is so cited. The second and third respondents are husband and wife. They purported to purchase the property aforesaid through a sale agreement executed between them as purchasers and the first respondent as the seller. The agreement was pursuant to a sale negotiated by Seef Properties the fourth respondent. The agreement was signed by the parties on 5 September 2019. The Sheriff purportedly signed the agreement on behalf of the applicant noting that he was authorised to sign in such capacity by virtue of the court order granted in case No HC 8650/18. In consequence of this sale agreement, the property was transferred to the second and third respondents by deed of transfer No 007364/2019 dated 6 December 2019. In case No. HC 06/20 the applicant seeks that the sale of the property to the second and third respondents be set aside and the deed to transfer No 007364/2019 under which the property was conveyed to the second and third respondents be cancelled and the prior deed of transfer No 34/1998 in the names of the applicant and the first respondent be revived. I must note that there should be a mistake in the numbering of the prior deed because a consideration of the current holding deed No 007364/2019 shows that the deed immediately preceding it under which the applicant and the first respondent held the property was Deed of transfer No 1264/1999 dated 16 February 2019. When one considers the cancelled deed itself the correct Deed of transfer No is 1464/1999. No doubt corrections to the holding deed are necessary. It is pertinent to briefly refer to case No HC 8650/18. The Sheriff in executing the sale agreement of the property purportedly on behalf of the applicant noted against his signature that he derived his power to sign for and on behalf of the applicant by virtue of the court order granted in case No HC 8650/18. In case No HC 8650/18 the first respondent herein was the applicant. He made an application before MUSHORE J on 31 October 2018 and was granted an order in default which is as follows: “IT IS ORDERED THAT The first respondent be and is hereby ordered to sign the agreement of sale and all relevant documents to effect the transfer of the property known as stand 159 Philadelphia Township of Philitia of Gnomewood of Philadephia within seven (7) days of service on her of this order as well as relevant documents.Should the first respondent fail to comply with the order above them the second respondent be and is hereby authorised to sign the agreement of sale and relevant transfer for and on behalf of the first respondent.First respondent shall pay the costs of this suit.” The applicant filed case No HC 9129/19 in November 2019 a year after the order in case No HC 8650/18 was issued. The application was filed purportedly in terms of r 449(1)(a) of the High Court Rules 1971 then in force. That rule provided for the courts power to set aside a default judgment granted in error common to the parties cited in the order. The applicant contended that MUSHORE J’s default judgment order in case No HC 8650/18 was granted when a notice of opposition and opposing affidavit had been filed and that the court granted the judgment oblivious of the notice of opposition. The record shows that the notice of opposition was filed on record on 9 October 2018. It is common cause that the application was served upon the applicant on 24 September 2018. She was required to have respondent to the application within ten days which expired on 8 October 2018. The filing of the opposition was done a day late on 9 October 2018. The opposition was however accepted by the Registrar and filed on record. The applicant averred that upon filing the notice of opposition, the application became opposed and the first respondent as the applicant was not entitled to set down the matter for judgment on the unopposed roll and ought to have instead set down the matter on the opposed roll. The applicant contended that it was irregular or improper for the first respondent as applicant there to have set down the matter without notice to the applicant. The applicant expressed her position on the matter as follows in the founding affidavit. “6.10 I am further advised that where there is a notice of apposition that has been filed of record an application inevitably becomes opposed. The first respondent cannot therefore simply treat the opposition as a nullity merely because it contends that it was either filed a few days out of time or it was defective. I am advised that this position is settled in our jurisdiction. 6.11 I am advised that this Honourable Court has held on several occasions that even if an applicant is convinced that a respondents notice of opposition is irregularly in the record, it is not proper to ignore it from the bound record altogether. This is because Rule 236 which states that an applicant may set down an application without notice to a respondent who has been barred is merely permissive. The court still has the final say. The court has to exercise its discretion in this respect. 6.12. The rule is therefore not a licence to ignore a notice of opposition even if it is filed out of time or defective. By filing a notice of opposition, albeit out of time, the respondent evinces an intention to contest the matter. The court cannot simply ignore the document as if it is floating somewhere in the record. It is therefore wrong for a party to set the matter down on the unopposed roll. I am further advised that the basis of the above position is that the Court has inherent jurisdiction to control its proceedings. Rule 4C confers on this court powers to depart from the Rules in the interests of justice. Thus, if a court were satisfied that it was in the interests of justice to rectify a noncompliance, it would do so by using the inherent jurisdiction or powers under Rule 4C.Therefore, a party cannot simply treat an irregular notice or pleading as a nullity and proceed as though it has not been filed but should allow the court to exercise it discretion to decide what is to be done in relation to the irregular step. If no substantial prejudice is caused by a irregular step, it might be better to ignore it since an application to set it aside may well be granted.Based on the foregoing it is clear that the default judgment was clearly and for all purposes erroneous.” The first respondent averred that the applicant was automatically barred when she filed the notice of opposition and that she ought to have sought an upliftment of automatic bar operating against her before the notice of opposition could validly be before the court. The first respondent also averred that he was not served with the notice of opposition and that no certificate of service was filed of record. The first respondent averred that he set down the matter without knowledge of the presence of the notice of opposition. In her answer to the opposing affidavit and on the issue of the filing of the opposing affidavit, the applicant averred that she did not in fact file her notice of opposition out of time because she “received” the court application on 27 September 2018 and that her opposing affidavit was therefore filed within ten (10) days of service in terms of the rules. She averred that 27 September 2018 was when she saw the application. Of course, she is wrong about service because proper service was effected on 24 September 2018 when the application was served upon her gardener. She agreed that the notice of opposition was not served on the first respondents’ legal practitioners in error and that she believed that service had been effected. The second and third respondents following an order of joinder granted to them by MUSITHU J in case No HC 1981/24 dated 29 May 2024 filed their opposing affidavit. They are the purchasers of the property in the sale which the applicant impugns. They averred that they were innocent purchasers who had paid the purchase price and obtained transfers and had interacted with the applicant in November and December 2019 intending to obtain vacant possession of the property. They averred that the applicant requested a notice period of six (6) months to vacate the premises. They gave the applicant three (3) months notice instead and she took no issue. They averred that on 2 January 2020 they were shocked to be served with application HC 6/20 which seeks the cancellation of their deed of transfer over the same property. The second and third respondents raised a point in limine of pre-emption and averred that since the applicant agreed to receive her 60% share of proceeds from the sale of the property in terms of the divorce consent paper, she could not challenge the validity of the order in case No HC 8650/18. The applicant filed an answering affidavit in which she denied having had any interactions with the second and third defendants. She denied that she requested any share of proceeds as alleged by the second and third respondents. She averred that she held the money which was deposited into her account to preserve value whilst she litigated and did not in doing so compromise her position as she instituted court proceedings which was inconsistent with one acquiescing to the sale. The second and third respondents further averred that ethe applicant had been written to several times about the sale and requested for the proceeds. The nature of the request was not pleaded. On the issue of filing of the notice of opposition out of time the respondents averred that because the applicant was barred it was proper for the court to grant default judgment. The parties agreed at the hearing that case No HC 06/20 hinged on case No HC 9129/19 in that of rescission is granted as sought then the order in case No HC 8650/18 would have to be resolved first and the fate of case No. HC 06/20 would be decided upon since a dismissal of that case would mean that the sale to the second and third respondents cannot have been validly concluded whilst the granting of the order sought would arguably validate the sale. Accordingly, argument on case No HC 06/20 was held over. The issue that arises in this application is a procedural one and a matter of law. It concerns the propriety of granting a default judgment by the court in an application in which there is filed and standing on record a time barred notice of opposition and opposing affidavit as happened in this case. The issue of pre-emption in my view that does not really answer the issue. I also do not in any event agree that there was pre-emption by the applicant because she immediately filed case No HC 06/20 to challenge the transfer. She averred that she has not used any of the money but has it held by the bank in an investment account to preserve value obviously for her if she loses and for the second and third respondents if she loses her challenge in case No HC 06/20. Pre-emption in any event is more relevant to case No HC 06/20. The issue of the propriety of granting default judgment in an application in which a notice of opposition has been filed as I have noted has seen the court adopting contrary positions. On the purpose of rule 449, applicants counsel quoted the well known authority being the case of Tiriboyi v Jani and Anor 2004(1) ZLR 470 at 472 D-E where the court stated: “The purpose of rule 449 appears…to enable the court to revisit its orders and judgments, to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is fuctus officio would result in an injustice and will destroy the very basis upon which the justice system rests. it is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way. The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the order or judgment.” The fact that the court may revisit its default judgement in the described circumstances is a given. The Supreme Court in Munyimi v Tauro SC 41/2013 stated: “Further it is also established that once a court holds that a judgment or order was erroneously granted in the absence of a party affected, it may correct, rescind or vary such without further enquiry. There is no requirement that an applicant seeking relief under rule 449 must show good cause- Grantually (Pvt) Ltd & Anor v UDC Ltd 2001(1) ZLR 361 at p 365: Banda v Pitluk 1993(2) ZLR 60(H) 64 F-H: Mutebwa v Mutebwa and Anor 2001(2) SA 193; 199 I-J and 200 A-B.” In relation to the approach of the court where an irregular pleading has been filed GILLESPIE J in the case Founders Building Society v Dalib (Pvt) Ltd & Ors 1998(1) ZLR 526 stated: “In any action where the plaintiff legal practitioner contemplates applying for default judgment but is aware of some proceedings being taken by the defendant which is an attempt at opposition but does not constitute due and regular entry of appearance to defend, he ought to address to the defendant or his legal practitioner due warning of the procedural step. Having done so he may choose between. an application for default judgment; oran application, on notice to the defendant to strike out the irregular proceeding. The latter application may be joined with an application for default judgment. If he opts to apply for default judgment he must inform the court of the relevant irregularity and give reasons where the court should exercise its discretion in the plaintiffs favour. The fuller and preferable course is an application to strike out coupled with a prayer for default judgement. A party who proceeds to default judgment in circumstances where he may be accused of snatching at a judgment may well be held accountable for unnecessary proceedings generated by his deviousness or peg headedness.” A contrary view which I have previously shared in and I daresay I have revised my stance in favour of the position taken by GILLESPIE J but for a slightly different or additional reason is that the filing of the out of time pleading was a nullity since the party filing would have been barred and that consequently a nullity being a nullity could not give rise to any rights or obligations. This is the position adopted by the respondents in casu. Firstly, I must note that the dicta by GILLESPIE J applied to an action matter. However, the same reasoning must apply to an application matter. This is so because the procedure for barring also applies applications, to opposing papers and subsequent pleadings or affidavits and heads of arguments. The point which has exercised my mind is that a barred litigant is entitled to appear at the hearing of a matter with limited audience in that he or she may be heard only in an application to uplift bar. Such application may be orally made. Where the irregularly filed pleading or affidavit is out of time and an automatic bar is in force, the barred person has limited audience and must be accorded the right to be heard to that limited extent. The court or judge before whom is placed a matter in which a barred party has filed a pleading which appears on record should on the basis of the limited right of audience given to the barred party grant that party an opportunity to be heard. The set down of the matter in such circumstances must be on notice to the barred party about the matter be set down on either the unopposed or opposed will. Consequently, in casu, the court granted the default judgment in error because there was a notice of opposition filed which should not have been ignored to the extent that the set down should have been made on notice to the barred defendant or respondent as the case may be. The default order of MUSHORE J must therefore be set aside with costs in the cause. IT IS ORDERED THAT: The default judgment granted in case No HC 8650/19 is hereby set aside.The application aforesaid may be set down on notice to the applicant either on the unopposed or on the opposed roll to enable the applicant if so advised to address the court on the bar in operation.For the avoidance of doubt, this order is not a bar to the making of a proper application for upliftment of bar being filed and determined or for the respondents to take whatever steps they may take at law to have this matter disposed of other than by default judgment.The costs of the application shall be costs in the cause in case No HC 8650/19. CHITAPI J: ……………………………………….. Mushoriwa Pasi Corporate Attorneys, applicants’ legal practitioners Chihambahwe Mutizwa & Pashen, first respondents’ legal practitioners Makwanya Legal Practice, second and third respondents’ legal practitioners 2 HH 298-25 HC 9129/19 HC 06/20 2 HH 298-25 HC 9129/19 HC 06/20 2 HH 298-25 HC 9129/19 HC 06/20 Case A: HC 9129/19 PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and CLOETE MUNJOMA and SARAH MUNJOMA and SEEFF PROPERTIES and THE SHERIFF OF ZIMBABWE Case B: HC 6/20 PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and CLOETE MUNJOMA and SARAH MUNJOMA and SEEFF PROPERTIES and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O and THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 11 June 2025 Opposed Matter S Chimedza, for the applicant T L Mapuranga, for the 1st respondent R T Mutero, for the 2nd and 3rd respondents Case A: HC 9129/19 PATIENCE NYASHA KABANDA versus # PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and # GABRIEL KABANDA and CLOETE MUNJOMA and # CLOETE MUNJOMA and SARAH MUNJOMA and # SARAH MUNJOMA and SEEFF PROPERTIES and # SEEFF PROPERTIES and THE SHERIFF OF ZIMBABWE Case B: HC 6/20 # THE SHERIFF OF ZIMBABWE Case B: HC 6/20 PATIENCE NYASHA KABANDA versus # PATIENCE NYASHA KABANDA versus GABRIEL KABANDA and # GABRIEL KABANDA and CLOETE MUNJOMA and # CLOETE MUNJOMA and SARAH MUNJOMA and # SARAH MUNJOMA and SEEFF PROPERTIES and # SEEFF PROPERTIES and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O and # THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O and THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 11 June 2025 Opposed Matter S Chimedza, for the applicant T L Mapuranga, for the 1st respondent R T Mutero, for the 2nd and 3rd respondents # THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 11 June 2025 Opposed Matter S Chimedza, for the applicant T L Mapuranga, for the 1st respondent R T Mutero, for the 2nd and 3rd respondents CHITAPI J: This judgment disposes of two applications separately filed by the applicant Patience Nyasha Kabanda being case no HC 9129/19 and HC 06/20. The first respondent as with the second and third respondents being Gabriel Kabanda, Cloete Munjoma and Sarah Munjoma respectively are common in both cases. The Sheriff for Zimbabwe is cited in both cases. Seef Properties cited as the fourth respondent as with the Sheriff for Zimbabwe and the Registrar of Deeds as the sixth respondent in case no. HC 6/20 did not file any papers in the matter and are non-participants. The real protagonists and their relationship in relation to the subject matter herein as will be explained are the applicant and the first respondent to began with. The two were husband and wife until this court divorced them by its order granted in case No HC 7833/13. The court divorced them on 2 February 2016 per MUNANGATI-MANONGWA J. A consent paper executed by the applicant and the first respondent and incorporated as part of the divorce order provided inter alia for the sharing of a fixed property called stand 159 Philadelphia Township of Philita of Gnomewood of Philadelphia in the proportion of 40% to the first respondent herein and 60% to the applicant. The disposal of this property is topical in the dispute and is central to both applications. It is advised to record herein what the consent paper provided for in regard to how the distribution of that property was to devolve. Paragraphs 9.1 – 9.4 of the consent paper reads as follows: “9.1 The property shall be valued by a valuer on the Master of the High Court list appointed by the Registrar of High Court. The valuation shall be done within fourteen days from the date of this order with the cost of valuation being borne by both parties in equal shares. The defendant be and is hereby given the option to buy out the plaintiff’s 40% share in the property within a period of six months from the date of the Registrars confirmation of the availability of the valuation report. Should the defendant fail to buy out the plaintiff’s share within the prescribed period, then the property shall be sold by an estate agent appointed by the Registrar of this Honourable Court with the net proceeds being shared between the parties in the agreed proportions.” The first respondent as a beneficiary in the property is so cited. The second and third respondents are husband and wife. They purported to purchase the property aforesaid through a sale agreement executed between them as purchasers and the first respondent as the seller. The agreement was pursuant to a sale negotiated by Seef Properties the fourth respondent. The agreement was signed by the parties on 5 September 2019. The Sheriff purportedly signed the agreement on behalf of the applicant noting that he was authorised to sign in such capacity by virtue of the court order granted in case No HC 8650/18. In consequence of this sale agreement, the property was transferred to the second and third respondents by deed of transfer No 007364/2019 dated 6 December 2019. In case No. HC 06/20 the applicant seeks that the sale of the property to the second and third respondents be set aside and the deed to transfer No 007364/2019 under which the property was conveyed to the second and third respondents be cancelled and the prior deed of transfer No 34/1998 in the names of the applicant and the first respondent be revived. I must note that there should be a mistake in the numbering of the prior deed because a consideration of the current holding deed No 007364/2019 shows that the deed immediately preceding it under which the applicant and the first respondent held the property was Deed of transfer No 1264/1999 dated 16 February 2019. When one considers the cancelled deed itself the correct Deed of transfer No is 1464/1999. No doubt corrections to the holding deed are necessary. It is pertinent to briefly refer to case No HC 8650/18. The Sheriff in executing the sale agreement of the property purportedly on behalf of the applicant noted against his signature that he derived his power to sign for and on behalf of the applicant by virtue of the court order granted in case No HC 8650/18. In case No HC 8650/18 the first respondent herein was the applicant. He made an application before MUSHORE J on 31 October 2018 and was granted an order in default which is as follows: “IT IS ORDERED THAT The first respondent be and is hereby ordered to sign the agreement of sale and all relevant documents to effect the transfer of the property known as stand 159 Philadelphia Township of Philitia of Gnomewood of Philadephia within seven (7) days of service on her of this order as well as relevant documents. Should the first respondent fail to comply with the order above them the second respondent be and is hereby authorised to sign the agreement of sale and relevant transfer for and on behalf of the first respondent. First respondent shall pay the costs of this suit.” The applicant filed case No HC 9129/19 in November 2019 a year after the order in case No HC 8650/18 was issued. The application was filed purportedly in terms of r 449(1)(a) of the High Court Rules 1971 then in force. That rule provided for the courts power to set aside a default judgment granted in error common to the parties cited in the order. The applicant contended that MUSHORE J’s default judgment order in case No HC 8650/18 was granted when a notice of opposition and opposing affidavit had been filed and that the court granted the judgment oblivious of the notice of opposition. The record shows that the notice of opposition was filed on record on 9 October 2018. It is common cause that the application was served upon the applicant on 24 September 2018. She was required to have respondent to the application within ten days which expired on 8 October 2018. The filing of the opposition was done a day late on 9 October 2018. The opposition was however accepted by the Registrar and filed on record. The applicant averred that upon filing the notice of opposition, the application became opposed and the first respondent as the applicant was not entitled to set down the matter for judgment on the unopposed roll and ought to have instead set down the matter on the opposed roll. The applicant contended that it was irregular or improper for the first respondent as applicant there to have set down the matter without notice to the applicant. The applicant expressed her position on the matter as follows in the founding affidavit. “6.10 I am further advised that where there is a notice of apposition that has been filed of record an application inevitably becomes opposed. The first respondent cannot therefore simply treat the opposition as a nullity merely because it contends that it was either filed a few days out of time or it was defective. I am advised that this position is settled in our jurisdiction. 6.11 I am advised that this Honourable Court has held on several occasions that even if an applicant is convinced that a respondents notice of opposition is irregularly in the record, it is not proper to ignore it from the bound record altogether. This is because Rule 236 which states that an applicant may set down an application without notice to a respondent who has been barred is merely permissive. The court still has the final say. The court has to exercise its discretion in this respect. 6.12. The rule is therefore not a licence to ignore a notice of opposition even if it is filed out of time or defective. By filing a notice of opposition, albeit out of time, the respondent evinces an intention to contest the matter. The court cannot simply ignore the document as if it is floating somewhere in the record. It is therefore wrong for a party to set the matter down on the unopposed roll. I am further advised that the basis of the above position is that the Court has inherent jurisdiction to control its proceedings. Rule 4C confers on this court powers to depart from the Rules in the interests of justice. Thus, if a court were satisfied that it was in the interests of justice to rectify a noncompliance, it would do so by using the inherent jurisdiction or powers under Rule 4C. Therefore, a party cannot simply treat an irregular notice or pleading as a nullity and proceed as though it has not been filed but should allow the court to exercise it discretion to decide what is to be done in relation to the irregular step. If no substantial prejudice is caused by a irregular step, it might be better to ignore it since an application to set it aside may well be granted. Based on the foregoing it is clear that the default judgment was clearly and for all purposes erroneous.” The first respondent averred that the applicant was automatically barred when she filed the notice of opposition and that she ought to have sought an upliftment of automatic bar operating against her before the notice of opposition could validly be before the court. The first respondent also averred that he was not served with the notice of opposition and that no certificate of service was filed of record. The first respondent averred that he set down the matter without knowledge of the presence of the notice of opposition. In her answer to the opposing affidavit and on the issue of the filing of the opposing affidavit, the applicant averred that she did not in fact file her notice of opposition out of time because she “received” the court application on 27 September 2018 and that her opposing affidavit was therefore filed within ten (10) days of service in terms of the rules. She averred that 27 September 2018 was when she saw the application. Of course, she is wrong about service because proper service was effected on 24 September 2018 when the application was served upon her gardener. She agreed that the notice of opposition was not served on the first respondents’ legal practitioners in error and that she believed that service had been effected. The second and third respondents following an order of joinder granted to them by MUSITHU J in case No HC 1981/24 dated 29 May 2024 filed their opposing affidavit. They are the purchasers of the property in the sale which the applicant impugns. They averred that they were innocent purchasers who had paid the purchase price and obtained transfers and had interacted with the applicant in November and December 2019 intending to obtain vacant possession of the property. They averred that the applicant requested a notice period of six (6) months to vacate the premises. They gave the applicant three (3) months notice instead and she took no issue. They averred that on 2 January 2020 they were shocked to be served with application HC 6/20 which seeks the cancellation of their deed of transfer over the same property. The second and third respondents raised a point in limine of pre-emption and averred that since the applicant agreed to receive her 60% share of proceeds from the sale of the property in terms of the divorce consent paper, she could not challenge the validity of the order in case No HC 8650/18. The applicant filed an answering affidavit in which she denied having had any interactions with the second and third defendants. She denied that she requested any share of proceeds as alleged by the second and third respondents. She averred that she held the money which was deposited into her account to preserve value whilst she litigated and did not in doing so compromise her position as she instituted court proceedings which was inconsistent with one acquiescing to the sale. The second and third respondents further averred that ethe applicant had been written to several times about the sale and requested for the proceeds. The nature of the request was not pleaded. On the issue of filing of the notice of opposition out of time the respondents averred that because the applicant was barred it was proper for the court to grant default judgment. The parties agreed at the hearing that case No HC 06/20 hinged on case No HC 9129/19 in that of rescission is granted as sought then the order in case No HC 8650/18 would have to be resolved first and the fate of case No. HC 06/20 would be decided upon since a dismissal of that case would mean that the sale to the second and third respondents cannot have been validly concluded whilst the granting of the order sought would arguably validate the sale. Accordingly, argument on case No HC 06/20 was held over. The issue that arises in this application is a procedural one and a matter of law. It concerns the propriety of granting a default judgment by the court in an application in which there is filed and standing on record a time barred notice of opposition and opposing affidavit as happened in this case. The issue of pre-emption in my view that does not really answer the issue. I also do not in any event agree that there was pre-emption by the applicant because she immediately filed case No HC 06/20 to challenge the transfer. She averred that she has not used any of the money but has it held by the bank in an investment account to preserve value obviously for her if she loses and for the second and third respondents if she loses her challenge in case No HC 06/20. Pre-emption in any event is more relevant to case No HC 06/20. The issue of the propriety of granting default judgment in an application in which a notice of opposition has been filed as I have noted has seen the court adopting contrary positions. On the purpose of rule 449, applicants counsel quoted the well known authority being the case of Tiriboyi v Jani and Anor 2004(1) ZLR 470 at 472 D-E where the court stated: “The purpose of rule 449 appears…to enable the court to revisit its orders and judgments, to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is fuctus officio would result in an injustice and will destroy the very basis upon which the justice system rests. it is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way. The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the order or judgment.” The fact that the court may revisit its default judgement in the described circumstances is a given. The Supreme Court in Munyimi v Tauro SC 41/2013 stated: “Further it is also established that once a court holds that a judgment or order was erroneously granted in the absence of a party affected, it may correct, rescind or vary such without further enquiry. There is no requirement that an applicant seeking relief under rule 449 must show good cause- Grantually (Pvt) Ltd & Anor v UDC Ltd 2001(1) ZLR 361 at p 365: Banda v Pitluk 1993(2) ZLR 60(H) 64 F-H: Mutebwa v Mutebwa and Anor 2001(2) SA 193; 199 I-J and 200 A-B.” In relation to the approach of the court where an irregular pleading has been filed GILLESPIE J in the case Founders Building Society v Dalib (Pvt) Ltd & Ors 1998(1) ZLR 526 stated: “In any action where the plaintiff legal practitioner contemplates applying for default judgment but is aware of some proceedings being taken by the defendant which is an attempt at opposition but does not constitute due and regular entry of appearance to defend, he ought to address to the defendant or his legal practitioner due warning of the procedural step. Having done so he may choose between. an application for default judgment; or an application, on notice to the defendant to strike out the irregular proceeding. The latter application may be joined with an application for default judgment. If he opts to apply for default judgment he must inform the court of the relevant irregularity and give reasons where the court should exercise its discretion in the plaintiffs favour. The fuller and preferable course is an application to strike out coupled with a prayer for default judgement. A party who proceeds to default judgment in circumstances where he may be accused of snatching at a judgment may well be held accountable for unnecessary proceedings generated by his deviousness or peg headedness.” A contrary view which I have previously shared in and I daresay I have revised my stance in favour of the position taken by GILLESPIE J but for a slightly different or additional reason is that the filing of the out of time pleading was a nullity since the party filing would have been barred and that consequently a nullity being a nullity could not give rise to any rights or obligations. This is the position adopted by the respondents in casu. Firstly, I must note that the dicta by GILLESPIE J applied to an action matter. However, the same reasoning must apply to an application matter. This is so because the procedure for barring also applies applications, to opposing papers and subsequent pleadings or affidavits and heads of arguments. The point which has exercised my mind is that a barred litigant is entitled to appear at the hearing of a matter with limited audience in that he or she may be heard only in an application to uplift bar. Such application may be orally made. Where the irregularly filed pleading or affidavit is out of time and an automatic bar is in force, the barred person has limited audience and must be accorded the right to be heard to that limited extent. The court or judge before whom is placed a matter in which a barred party has filed a pleading which appears on record should on the basis of the limited right of audience given to the barred party grant that party an opportunity to be heard. The set down of the matter in such circumstances must be on notice to the barred party about the matter be set down on either the unopposed or opposed will. Consequently, in casu, the court granted the default judgment in error because there was a notice of opposition filed which should not have been ignored to the extent that the set down should have been made on notice to the barred defendant or respondent as the case may be. The default order of MUSHORE J must therefore be set aside with costs in the cause. IT IS ORDERED THAT: The default judgment granted in case No HC 8650/19 is hereby set aside.The application aforesaid may be set down on notice to the applicant either on the unopposed or on the opposed roll to enable the applicant if so advised to address the court on the bar in operation.For the avoidance of doubt, this order is not a bar to the making of a proper application for upliftment of bar being filed and determined or for the respondents to take whatever steps they may take at law to have this matter disposed of other than by default judgment.The costs of the application shall be costs in the cause in case No HC 8650/19. CHITAPI J: ……………………………………….. Mushoriwa Pasi Corporate Attorneys, applicants’ legal practitioners Chihambahwe Mutizwa & Pashen, first respondents’ legal practitioners Makwanya Legal Practice, second and third respondents’ legal practitioners # IT IS ORDERED THAT: The default judgment granted in case No HC 8650/19 is hereby set aside. The application aforesaid may be set down on notice to the applicant either on the unopposed or on the opposed roll to enable the applicant if so advised to address the court on the bar in operation. For the avoidance of doubt, this order is not a bar to the making of a proper application for upliftment of bar being filed and determined or for the respondents to take whatever steps they may take at law to have this matter disposed of other than by default judgment. The costs of the application shall be costs in the cause in case No HC 8650/19. CHITAPI J: ……………………………………….. Mushoriwa Pasi Corporate Attorneys, applicants’ legal practitioners Chihambahwe Mutizwa & Pashen, first respondents’ legal practitioners Makwanya Legal Practice, second and third respondents’ legal practitioners