Mupamombe Housing Co-Operative Society Limited v Christabel Mafirakurewa and Mupamombe Housing Project

### Preamble
1
HH 527-25
HCH 5066/24
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MUPAMOMBE HOUSING CO-OPERATIVE SOCIETY LIMITED

versus

CHRISTABEL MAFIRAKUREWA

and

MUPAMOMBE HOUSING PROJECT

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 13 March 2025 & 9 September 2025

Application for rescission of judgement

T Manyau for the applicant

K Tambanewenyu for the respondent

DUBE-BANDA J:

[1] 	This is an opposed application for rescission of judgment made in terms of r 29(1)(a) of the High Court Rules, 2021. For convenience and where the context permits, the applicant shall be referred to as Mupamombe Housing Co-Operative Society Limited and the second respondent as Mupamombe Housing Project. In case HCH 4264/23 (“the main matter”) the first respondent sued out a court application against Mupamombe Housing Project and Kadoma City Council being first and second respondent respectively. The applicant was not a party to the main matter. On 26 April 2024 this court (Per Mhuri J) granted a default order couched in the following terms:

The applicant (first respondent therein) be and is hereby declared to have legitimately acquired 3 stands namely Stand number 1156, 5951, and 5895 Mupamombe, Ingezi Kadoma which are a portion of Mupamombe Ingezi owned by Mupamombe Housing project.

The second respondent (Kadoma City Council) is hereby ordered to immediately facilitate and transfer or register the 3 stands namely Stand numbers 1156, 5951 and 5895 Mupamombe, Ingezi Kadoma into the name of the applicant or anyone nominated by the applicant.

The first respondent (Mupamombe Housing Project) to pay the costs of suit.

[2] 	This application is predicated on the contention that the order sought to be rescinded was erroneously sought or erroneously granted in the absence of the applicant affected by the order. In the alternative, the application is made in terms of r 27 on the basis that there is good and sufficient cause to set aside the order in the main action. The general rule is that this procedure of seeking a rescission in terms of r 29, and in the alternative r 27 is permissible.  (The current r 27 was r 63 in the High Court Rules, 1971 and the current r 29 was r 449.) Mathonsi J (as he then was) in Trastar (Pvt) Ltd T/A Takataka Plant Hire v Golden Ribbon Plant Hire (Pvt) Ltd HB-4-2018 held thus:

“In my view a party seeking a rescission of default judgment must posit its application on either rule 63 or rule 449 depending on the grounds therein.  Where the party relies on both those rules it must make the application in the alternative.”

[3]	 However, there are exceptions to the general rule stated above. Where a litigant, like in casu, is alleging that the order sought to be rescinded was “erroneously sought or erroneously granted in the absence of any party affected thereby” r 27 would not be applicable. It is so because the jurisdictional requirements that must be established under r 27 are predicated on a litigant who is a party in the main matter whose order is sought to be rescinded. This is so because r 27 (1) opens by the words “a party against whom a judgment has been given in default …” The applicant is not a party in the main matter whose order is sought to be rescinded, therefore it does not qualify as “a party against whom a judgment has been given in default.”  It is because of the above reason that r 27 is not applicable to this application and is only r 29 that is applicable.

[4] 	In summary, the applicant’s case is that the applicant came into existence in 2002 as a housing scheme. Its primary objective was to provide accommodation to members of the public service, but it ended up also accommodating individuals of the non-civil service. The government ceded a piece of land known as Mupamombe, Ingezi, Kadoma to the applicant with a total of 846 stands in the Ingezi residential area. At formation the applicant avers that it was called Mupamombe Housing Project, however in 2019 it was registered as a Housing Co-operative and changed its name to Mupamombe Housing Co-operative Society Limited. It is financed by contributions from its membership of approximately 800 members. The stands are for residential, commercial, clinic, rates hall, churches, and primary schools. It is contended that the second respondent is fronted by a group of people who were expelled from the applicant, who are unlawfully associating and interfering with the applicant’s housing project.

[5] 	The applicant contends that it was neither cited as a party nor served with the application in the main matter and was not served with the notice of set down. It became aware of the existence of the order on 24 October 2024 through some police investigations. The applicant contends further that it has an interest in the main matter in that the stands subject to litigation in the main matter belong to it.  The applicant submitted that the order sought to be rescinded was erroneously sought or granted in that there is no legal entity answering to the name of Mupamombe Housing Project and therefore it could not consent to the relief that was sought by the first respondent in the main matter. It is contended that there are certain people masquerading in the name of Mupamombe Housing Project for the purpose of deceiving and creating confusion. It was submitted further that the first respondent is not a member of Mupamombe Housing Co-Operative Society Limited, nor did she acquire the stands in issue from it.

[6] 	The application is opposed both in limine and on the merits. The first point in limine is that there is a fatal non-joinder of interested parties to this application. It is contended that the first respondent has since sold stand number 1156 to one Brighton Sithole, and it is now registered in the name of that purchaser. Further she sold stand 5951 to one Blessed Simagongwe who purchased it for minor children. It is contended that the new purchasers have interest in this application, and their non-joinder is fatal. The second point in limine is that this application was filed outside the thirty-day timeline provided in r 29 of the High Court Rules, 2021 and therefore it is not properly before court. The third point in limine is that this application does not pass the “affected party” test required in terms of r 29 because the court in HCH3527/23 ordered that Mupamombe Housing Co-operative Society Limited and Mupamombe Housing Project are two different entities and the order is extant. The fourth point in limine is that the relief sought in this application is incompetent in that the applicant is not a party to the main matter and merely seeking rescission without first seeking to be joined as a party to that matter.  The firth point in limine is that the alleged misrepresentation of facts, premised on the contention that the applicant falsely claims that there is no legal entity answering to the name of Mupamombe Housing Project.

[7] 	At the hearing, Mr. Tambanewenyu counsel for the first respondent abandoned the following points in limine, the alleged non-joinder; and that the application was filed outside the timeline allowed by r 29. No further reference shall be made to the abandoned preliminary objections.  Counsel submitted that the points in limine predicted on the contention that this application does not pass the “affected party” test required in terms of r 29 and that there is a misrepresentation of facts because the applicant falsely claims that there is no legal entity answering to the name of Mupamombe Housing Project would be argued in respect of the merits. The second respondent persisted with the point in limine that the relief sought in this application is incompetent in that the applicant is not a party to the main matter and merely seeking rescission without first seeking to be joined as a party to therein. It is to this point in limine that the relief sought is incompetent that I now turn.

[8] 	This objection turns on the contention that the applicant is not a party to the main matter and it has not sought to be joined therein. It was argued that the applicant only seeks the order to be rescinded and nothing more and thus such a relief is incompetent. The substance of the first respondent’s argument is this: in the event the court accedes to the order for rescission what would be the next procedural step to follow in the main matter? Should such a litigant file a notice of opposition in the main matter? How would a litigant file a notice of opposition in an application in which it is not a party? My view is that on closer scrutiny of r 29(1)(a) and the jurisprudence shows that these questions do not arise in an application for rescission under this rule. See Banda v Pitluk 1993 (2) ZLR 60 (H); Munyimi v Tauro SC 41/2013; Mukambirwa & Ors v The Gospel of God Church International 1932 SC 8/14.  This is so because one need not look beyond r 29 in the resolution of such an application. In other words, r 29 is complete and stand alone and provides a remedy to a party against whom a judgment or order was erroneously sought or erroneously granted in its absence. In other words, the court must look to r 29 and no more for the jurisdictional grounds to rescind an order in such an application. If the r 29 requirements are met, the court must rescind the order in the main matter.

[9] 	In addition, the fact that the applicant has not been joined in the main matter is inconsequential to the resolution of this application. In other words, in an application for rescission in terms of r 29(1)(a) it is not a requirement that the applicant must first be joined to the matter whose order is sought to be rescinded. I say so because by acceding to the application, the court is saying to the respondent the order in the main matter was erroneously sought or erroneously granted in the absence of the applicant who is affected therein.  The view I take is that it remains to the respondent, should it still desire to prosecute the main matter further to regularize or to ensure that the applicant, who is an affected party therein, is joined to the main matter. It is for these reasons that the point in limine taken that the draft order is incompetent has no merit and is refused.

[10] 	In its answering affidavit and heads of argument, the applicant attacked the first respondent’s opposing affidavit on the premise that it is predicated on inadmissible hearsay evidence. However, at the hearing, Mr Manyau counsel for the applicant abandoned this preliminary objection and no further reference shall be made to it.

[11] 	I now turn to the merits of the application. In Banda v Pitluk 1993 (2) ZLR 60 (H) the court said:

“Let me reiterate immediately that rescission of a judgment under rule 449(1)(a) is entirely different and must therefore be distinguished from an application for rescission of a default judgment under rule 63 which requires the court, before it sets aside a judgment under that rule, to be satisfied “that there is good and sufficient cause to do so”. Nor is the court concerned with the issue of whether the defendant has “a good prima facie defence to the action”, ………..In my view, when considering the question of rescission of a default judgment under rule 449(1)(a) on the ground that it was “erroneously granted in the absence of any party affected thereby”, once the court finds, as it has found in this case, that the judgment was erroneously granted against the defendant, …….then that is an end to the matter and the court should rescind the judgment, as I therefore intend to do in this case.”

See Munyimi v Tauro SC 41/2013; Mukambirwa & Ors v The Gospel of God Church International 1932 SC 8/14; Serenia Capital (Pvt) Ltd v Multi Component Construction & Ors 2020(2) ZLR 357 (H).

[12] 	It is apparent from the order in the main matter that the applicant was not made a party to the proceedings that culminated in that order. The applicant contends that it has a real and substantial interest in that it owns the stands allegedly sold to the first respondent. The applicant makes the submission that the order sought to be rescinded was erroneously sought or granted in that there is no legal entity answering to the name of the second respondent.  It is contended that there are certain people masquerading in the name of Mupamombe Housing Project for the purpose of deceiving and creating confusion. It was submitted further that the first respondent is not a member of the applicant, nor did she acquire the stands in issue from the applicant. I take the view it is inconsequential whether the applicant’s contentions are correct, the crux of the matter is that they show that it has a direct interest in the main matter and should have been made a party therein. In other words, if it was brought to the attention of the court that granted the order sought to be rescinded that there was an interested party not joined to the proceedings, the court would have declined to grant the order in the absence of the applicant.

[13] 	The first respondent argued that Mupamombe Housing Cooperative Society Limited and Mupamombe Housing project are two separate legal entities. This issue cannot be resolved in this application. However, what is important for the purposes of the resolution of this matter is that there is a dispute on whether there is a legal entity answering the name of Mupamombe Housing project. It is this dispute that shows that the order was erroneously sought or erroneously granted in the absence of the applicant a party affected thereby.  That is all that the applicant must show in an application in terms of r 29(1)(a).

[14]	 In addition, the argument that the land in issue was allocated to Mapamombe Housing Project in 2002 before the Mupamombe Housing Cooperative Society Limited was formed in 2019, and that the latter has no right to the land has no merit. I say so because Mupamombe Housing Cooperative Society Limited explained the circumstances leading to the change of name, whether this version is correct or not is inconsequential. The crux of the matter is that there is a dispute about the ownership of the land and because of the dispute the applicant has an interest in the main matter. For the first respondent it was further argued that the stands were sold to her by the Mapamombe Housing Project and / or its officials who had authority to sell deriving on the provisional order in HC10206/18. This argument is ill-conceived because a closer scrutiny of the provisional order in HC 10206/18 does not authorize Mapamombe Housing Project to sell the stands on the disputed land. Again, on 25 February 2025 this court (per Chitapi J) granted an order in favour of the Mupamombe Housing Cooperative Society Limited barring Mapamombe Housing Project and others from interfering with applicant’s administration, control, management and selling and distribution of all housing stands at Mupamombe, Ingezi Kadoma. This shows that the applicant has a real and substantial interest in the main matter and in the reading of r 29(1)(a) meets the identity “of any party affected thereby.”

[15]	 Further it was submitted that this court (per Musithu J) in HC 3527/23 ordered that Mupamombe Housing Project and Mupamombe Housing Cooperative Society Limited are two different entities, and that the former was the bona fide owner of a piece of land known as Mupamombe Ingezi Kadoma. I underscore that the first respondent cannot wish away nor can this court ignore the fact that the order in HC 3527/23 was set aside in terms of r 27 in HH 1411-25 (HC6134/23).

[16]	 In the circumstances, the applicant has proved on a balance of probabilities that it is an affected party in the main matter (HCH4264/23) and that the order therein was erroneously sought or erroneously granted in its absence. The applicant has a direct and substantial interest is the main matter which could be prejudicially affected by the order obtained therein. To allow such an order to stand would result in injustice and will destroy the very basis upon which the justice system rests. See Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H) at 472. Serenia Capital (Pvt) Ltd v Multi Component Construction & Ors 2020 (2) ZLR 357 (H). It is for this reason that the applicant has made a case for a rescission of the order in the main matter.

[17] 	There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the event. The applicant sought costs on a legal practitioner and client scale. My view is that the details in the first respondent’s opposing affidavit show that she either knew or should have known that the applicant had an interest in the main matter. Notwithstanding, she proceeded to sue out an application and sidelined applicant as a party. This was a deliberate ploy to obtain an order in the absence of the applicant an interested party therein.  In addition, she sought to cling to an order that was clearly erroneously sought or erroneously granted in the absence of the applicant, an interested party. To stubbornly seek to cling onto an order obtained in such circumstances might attract an adverse order of costs. See Zimbank v Masendeke 1995 (2) ZLR 400 (S) at page 401-3; Mudondo v Nyathi & Ors 2019 (3) ZLR 972 (H).  It is for these reasons that I take the view that costs on the scale of a legal practitioner and client are warranted.

In the result, it is ordered as follows:

The order erroneously sought or erroneously granted at the instance of the first respondent by this court on 26 April 2024 in case no. HCH 4264/23 is hereby rescinded in terms of r 29(1)(a) of the High Court Rules, 2021.

The first respondent to pay the costs on a legal practitioner and client scale.

Dube-Banda J:..................................................................................

Maposa Mahlangu Attorneys, applicant’s legal practitioners

Chinamatira Jonasi Nyambira & Tambanewenyu, first respondent’s legal practitioners