Oliver Masomera N.O and Naboth Gaza v Heather Magodyo and Prosper Sakala and Henry Sakala and Master of the High Court and Chironde and Associates (Pvt) Ltd and Freddy Chimbari

### Preamble
1
HH 602 - 25
HCH 4078/25
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OLIVER MASOMERA N.O

(In his capacity as the executor dative of the estate late Agnes Sakala DR 3480/23)

and

NABOTH GAZA

versus

HEATHER MAGODYO

and

PROSPER SAKALA

and

HENRY SAKALA

and

MASTER OF THE HIGH COURT

and

CHIRONDE AND ASSOCIATES (PVT) LTD

and

FREDDY CHIMBARI

(In his capacity as the executor of the estate of Aaron Sakala DR 1036/13)

HIGH COURT OF ZIMAMBWE

MAMBARA J

HARARE 30 September 2025 & 6 October 2025

Opposed Application for Leave to Appeal

R. Mabwe, for the applicants

S. Mbauya, for the 1st, 2nd & 3rd respondents

L. Matapura, for the 5th respondent

MAMBARA J:    This is an opposed application for leave to appeal against an interlocutory order of this Court. The applicants seek leave to appeal a judgment of this Court that rescinded a default judgment previously entered in their favour. The matter concerns a substantial estate dispute between the parties. The default judgment was set aside on [date] (in HC 1000/25), thereby reopening the case for determination on the merits. The applicants now seek to appeal that rescission order.

The Court notes at the outset that the rescission order in question is interlocutory in nature, and thus not appealable as of right. It does not finally determine the rights of the parties but merely paves the way for the main dispute to be heard on the merits. An appeal against such an order requires leave of this Court, which is granted only in exceptional circumstances. The Supreme Court has emphasized that superior courts should be slow to interfere with uncompleted proceedings of a lower court, save in rare cases of a proven gross irregularity or injustice that cannot be remedied later. In PG v Intratrek Zimbabwe (Pvt) Ltd 2020 (1) ZLR 1128 (S), the Supreme Court reiterated that an interlocutory decision is not appealable midstream unless a grave miscarriage of justice would result if not corrected. This stringent test is intended to prevent piecemeal appeals and unnecessary fragmentation of proceedings.

Having considered the parties’ submissions, I am satisfied that this application for leave to appeal is devoid of merit. It is apparent that the applicants’ true motive is to avoid having the main matter heard on its merits now that the case is trial-ready. The rescission of the default judgment cleared the way for the substance of the estate dispute to be resolved; yet the applicants have instead chosen to pursue an appeal in an attempt to restore the default judgment and delay a trial. This stratagem is an abuse of the court process. As Mathonsi J aptly observed in Kwaramba v Winshop Enterprises (Pvt) Ltd & Ors HH 788/15, a party that has obtained a default judgment which is later rescinded should not “spend time, energy and money trying to reverse the process and revert to the default judgment status quo”, for to do so “is… a trifle.”  Such an attempt to cling to a rescinded judgment was similarly deprecated in Mafu v Ncube HB 4/16, where the court remarked on the futility of “hanging onto a default judgment… until kingdom come” instead of resolving the real dispute. The present application fits that description. It is essentially a calculated effort to hang onto an ill-gotten procedural advantage, at the expense of a fair hearing of the case. This Court will not countenance tactics designed to sidestep a determination on the merits.

The respondents, in opposing this application, correctly point out that the judgment sought to be appealed is interlocutory and not appealable without leave. They argue that no grounds have been shown to justify granting leave. The Court agrees. The applicants have failed to establish any gross irregularity or misdirection in the granting of the rescission order that would warrant the intervention of an appellate court at this interim stage. The rescission order simply ensured that the matter will be heard on the merits – a result entirely in line with the interests of justice. There is no irreparable prejudice to the applicants in proceeding to trial; on the contrary, it is in the interests of both parties that the substantive issues be ventilated without further delay. The Supreme Court has cautioned that if courts entertain appeals or reviews of every interlocutory ruling, “finality in litigation will be severely jeopardised and the efficacy of the entire court system” undermined. In the present case, allowing an appeal now would fragment the proceedings and needlessly prolong the resolution of this long-running estate dispute. No exceptional circumstance has been demonstrated to justify such a course.

In their bid to attack the rescission judgment, the applicants raised a litany of technical complaints. I address each in turn, and find that none has merit. First, the applicants contend that the judge a quo erred by granting rescission without a copy of the default judgment being attached to the application. This argument is unsustainable. The default judgment was a matter of court record; its contents and effect were well within the Court’s knowledge. Failure to attach a formal copy of that judgment as an exhibit did not preclude the court from exercising its discretion to rescind. There is no rule that the judgment sought to be rescinded must be attached on pain of nullity. What matters is that the court is aware of the judgment and the grounds for its rescission. In this case, the absence of the judgment as an annexure did not invalidate the proceedings or occasion any prejudice. The rescission was granted on the merits of the application, and not on a technical formality.

Second, the applicants argue that no affidavits were filed by the legal practitioners explaining the default, implying that the rescission should not have been granted. This point is also devoid of merit. While it may be desirable in some cases for legal practitioners to depose to affidavits (for instance, to explain any inadvertence or error on their part leading to a default), it is not an inflexible requirement. An application for rescission will stand or fall on the sufficiency of the explanation for default and the bona fides of the defence on the merits. There is no hard-and-fast rule that an affidavit from the lawyer must be produced in every case. The absence of such an affidavit is not fatal where the applicant’s founding and supporting affidavits adequately set out the reasons for the default. In the present matter, the rescission was granted because the applicants’ explanation (as contained in their affidavits) satisfied the court that the default judgment ought to be set aside. The lack of a separate affidavit from a legal practitioner did not amount to any irregularity. It certainly does not rise to the level of an error or injustice that would interest an appellate tribunal.

Third, the applicants took issue with the issue of costs. Costs are within the discretion of the court and the order for costs cannot be lightly impugned unless the order is grossly unreasonable in the circumstances.

In sum, the various points raised by the applicants in attacking the rescission judgment are without substance. They amount to grasping at technical straws. The Court finds that the rescission order was properly granted to ensure that justice is done on the merits. There was no misdirection or irregularity in that decision. To the extent that the applicants are aggrieved by having to now face the merits of the case, that is simply the natural consequence of their default judgment being set aside so that the real dispute can be determined fairly. Their remedy lies in preparing for the hearing, not in appellate obstruction. The matter must now proceed to finality on the merits, and this Court will not allow further technical haggling to delay substantive justice. It is in the interests of justice and finality that the parties have their day in court on the substantive issues, rather than prolonging the interlocutory skirmishes.

Disposition

For the reasons given above, the application for leave to appeal is dismissed. The applicants have failed to meet the threshold for the granting of leave. The interlocutory order they seek to challenge is not shown to be infected by any gross irregularity or exceptional circumstance warranting appellate interference at this stage. The appropriate course is for the main matter to proceed to trial.

Accordingly, the application is dismissed with costs on the ordinary scale.

Mambara J: …………………………………………………………..

Scanlen & Holderness, applicants’ legal practitioners

Coghlan, Welsh & Guest, 1st, 2nd, & 3rd respondents’ legal practitioners

Mafongoya & Matapura, 5th respondent’s legal practitioners