THE Trustess FOR THE TIME Being OF Riverside Estates Trust AND Ambrose Nzewi Versus Herbert Sylvester Masiyiwa Ushewokunze N.O AND Registrar OF Deeds, Bulawayo

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HB 140/21
HC 1426/20
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THE TRUSTESS FOR THE TIME BEING

OF RIVERSIDE ESTATES TRUST

And

AMBROSE NZEWI

Versus

HERBERT SYLVESTER MASIYIWA

USHEWOKUNZE N.O

And

REGISTRAR OF DEEDS, BULAWAYO

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 28 JUNE

Opposed Application

G. Nyoni, for the applicants

T. Tavengwa,, for the 1st respondent

KABASA J: 	This is an application for rescission of judgment, a judgment granted under case number HC 2167/19 on 10th September 2019.  The application is brought in terms of rule 449 of the High Court Rules, 1971.  The applicants contend that the judgment was erroneously sought and erroneously granted as the 1st respondent cited therein was deceased at the time of the filing of the application and the subsequent granting of the same.  The 2nd respondent cited therein was not served with the application and so could not have been adjudged as being in default.  Had the Judge who granted the order been aware of these facts, the order would not have been granted.

The background facts to the matter are these:  On 7 November 2002 and 4 March 2008, one Duncan Kona (‘Duncan’) obtained court orders in his favour under case numbers HC 1716/02 and HC 432/04.  In HC 1716/02 the parties were Duncan and Savanhu Georgina Dadirai and the Registrar of Deeds, the latter being 1st and 2nd defendants.  The order compelled the defendants to transfer rights, title and interest in the remainder of Lot 7, 8 and subdivision “A” of Lot 9A Riverside Estates Agricultural Lots into the plaintiff’s name.  Duncan subsequently subdivided the land into residential stands and sold them to members of the first applicant and the second applicant.  The applicants in turn obtained court orders under case numbers HC 512/19 and HC 4209/12 compelling Duncan to surrender title to them for the respective properties they had bought.  The applicants have built houses on their respective properties and transformed the area into a low density suburb with the attendant improvements which come with a low density residential area.  The second applicant has been residing thereat for over 15 years.

On 10th September 2019 under case number HC 2167/19 the first respondent filed a rule 449 application seeking the rescission of the court orders granted under HC 1716/02 and HC 432/04.  In that application the 1st respondent was the applicant with the 1st and 2nd respondent cited as Duncan William Kona and the Registrar of Deeds, Bulawayo.

The order under HC 432/04 cited Duncan as the applicant and one Abraham C Hourd, Justin Nassan Gwanzura, Eppie Ushewokunze and Herbert Ushewokunze as 1st to 4th respondent.  The order set aside an earlier order which was granted on 29th August 2000 under case number HC 6048/00.  The HC 6048/00 order cited Abraham Chambarekani and Justin Nassan Gwanzura as 1st and 2nd plaintiff, whilst Eppie Ushewokunze VI, Herbert S.M Ushewokunze as joint Executors Testamentary of the late Herbert Sylvester Masiyiwa Ushewokunze’s estate were the 3rd and 4th plaintiff and Georgina Savanhu and the Registrar of Deeds 1st and 2nd defendant.  The 1st defendant was directed therein to transfer Lot 7 Riverside Estates Subdivision A Agricultural Lots of Willsgrove to 1st, 2nd, 3rd and 4th plaintiffs.  HC 432/04 therefore reversed HC 6048/00, divesting the 1st respondent of the rights to the land which has now been developed into a low density residential area.

In HC 2167/19 which cross-referenced HC 432/04 the 1st respondent obtained the following order:

“1.	The order under HC 432/04 entered on the 4th March 2008 be and is hereby set aside.

2.	The order under HC 1716/02 entered in default on the 7th November 2002 be and is hereby set aside.”

This is the order the applicants seek to vacate.  The 1st respondent opposed the application.  His contention is that HC 1716/02 and HC 432/04 were granted in error, Duncan obtained the orders through fraud.

The chronology of events, according to the 1st respondent, is this: His father, the late Doctor Ushewokunze owned Lot 7, 8 and 9A Riverside Estates and later transferred it into Georgina Savanhu’s name.  The reason for such transfer fell away and so Georgina was supposed to transfer the property back to the 1st respondent’s father.  Since his father had died the 1st respondent sought to have the property transferred to the estate and that is when he “stumbled upon” the fact that there was an order ordering Georgina to transfer that same property.  This was the order in HC 1716/02.  He then sought to stay execution of HC 1716/02 and a provisional order was granted by NDOU J on 13th February 2004.  The 1st respondent was the applicant with Duncan and the Registrar of Deeds, Bulawayo 1st and 2nd respondent.  The effect was to interdict the transfer of Lot 7 Riverside Estates by the 1st and 2nd respondent to any third party pending the confirmation or discharge of the provisional order.  Service of that provisional order on the 1st respondent was to be by publication in the Chronicle Newspaper.  The application was under case number HC 432/2004.  The final order was opposed, which final order sought the rescission of the order under HC 1716/02 and the setting aside of the transfer of the property.  On 4th March 2008 KAMOCHA J granted the order already refered to and Duncan was now the applicant with 1st respondent now 4th respondent.  The case number was still HC 432/04 but cross-referencing HC 943/04 and HC 6048/00.

The 1st respondent became aware of this in 2004 but did not act to due to a fall out with his lawyers.  The matter was not attended to from 2004-2008.  Audience was later sought with the Judge President who advised the 1st respondent to follow the High Court rules.  This eventually saw the filing of the application under HC 2167/19 which was subsequently granted on 10th September 2019.

The applicants read the founding affidavit in HC 2167/19 and so must be aware of the facts which led to the granting of the orders under HC 1716/02 and HC 432/04 but chose not to disclose this in their application.  HC 1716/02 revealed that Duncan sued one Taruberekera Netsai Makhosazana and the Registrar of Deeds and the agreement of sale upon which the claim was anchored was between Duncan and the said Taruberekera.  However judgment was eventually entered against Georgina Savanhu when she was never part of the proceedings.  To that end therefore the judgment was obtained through fraud.

The applicants are not privy to what transpired between Duncan, Georgina, Taruberekera and the 1st respondent and so have no legal interest in the matter.

For these 2 reasons, so counsel for the 1st respondent argued, the applicants must be non-suited.

This argument saw the 1st respondent taking 2 points in limine, these being material non-disclosure and lack of locus standi.

I propose to deal with the two points in limine first before proceeding to the merits.

Material Non-Disclosure

In Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Limited and Anor 2001 (2) ZLR 551 the court sounded a warning against material non-disclosure of facts.  Suppression of information is frowned upon by the courts as it tends to show that a litigant is not being candid with the court.

In casu counsel for the applicants argued that the issue at hand relates to the nullity of the order granted in HC 2167/19 and it is an undisputed fact that it was granted against a dead person and that should mark the end of the matter.

Whilst this argument is attractive and makes sense, does it mean that if there was indeed material non-disclosure of facts the court should turn a blind eye?  I think not.  Having said that, was there material non-disclosure of facts?  A fact is something known to exist or to have happened.  The 1st respondent asserted that the applicants are not privy to the sale of the land which Duncan in turn sold to them.  What they know for a fact is that Duncan has title to that land, subdivided it and sold them residential stands.

Whilst the letter counsel for the 1st respondent wrote to the executor of the late Duncan’s estate was not filed as part of the record such letter was referred to by counsel in reference to the fact that Duncan is deceased.  That same letter acknowledges that the executor has filed a Notice of Opposition in case number HC 1190/21 wherein the executor argues that the order under HC 1716/02 is valid.  I took the trouble to call for HC 1190/21 which was said to be an application wherein the validity of HC 1716/02 is in issue.  I was unable to find the record.

Whether such record exists or not is not germane to the matter before me.  All it shows is the multiplicity of actions involving this contentious land which appears to be pitting a number of individuals.

The many orders characterising this matter raises more questions than answers.  Whilst the 1st respondent speaks of fraud in that the summons in HC 1716/02 has Taruberekera as the defendant and so judgment ought to have been granted against her, the fact is there is a summons under HC 2125/02 which has Duncan as the plaintiff and Georgina as the defendant.  The summons was issued on 27th August 2002 and judgment was granted on 7th November 2002.  It can therefore not be stated as a fact that the judgment was granted before issuance of the summons against Georgina Savanhu.  Granted the case number is reflected as HC 1716/02 but does that in itself show fraud?  The executor of the late Duncan’s estate, as evidenced by the opposition under HC 1190/21 intends to defend the validity of the order in HC 1716/02.

Can it therefore be said the applicants know for a fact that HC 1716/02 was obtained through fraud and have therefore failed to disclose that fact?  I think not.  A perusal of the affidavit which states the position as portrayed by that party does not necessarily mean such stated position is undisputed fact.

To say the applicants suppressed material facts is tantamount to saying they ought to take wholesale the assertions in the founding affidavit filed in support of the application under HC 2167/19.  If they do not know that as fact how can they be said to have suppressed or failed to disclose that which they are not privy to?

I am of the considered view that the applicants disclosed those facts which they know to be the reality of the matter and it is on the basis of such facts that they brought the application.

The first point in limine finds no favour with the court and is accordingly dismissed.

I turn now to the second point in limine.

Locus Standi

Counsel for the 1st respondent contends that the applicants have no sufficient interest in the matter to found locus standi.  The issue in HC 1716/02 is between Duncan, 1st respondent, Georgina Savanhu and Taruberekera Netsai Makhosazana in that they bought the property in dispute from Duncan.  They therefore have no locus standi to intervene in the issues under HC 2167/19, HC 1716/02 and HC 432/04 and should therefore be non-suited.

In MBCA Bank Ltd v RBZ and Anor HC 1147/14 MATHONSI J (as he then was) in dealing with the issue of joinder, had this to say: -

“So, joinder of a party to proceedings is something within the discretion of the court, which discretion of course should be exercised judicially.”

The learned Judge cited, with approval, Marais and Anor v Pongola Sugar Milling Co. and Others 1961 (2) SA 698 (N) where a tier approach, viz

1.	that a party must have a direct and substantial interest in the issues raised in the proceedings.

2.	that his rights may be affected by the judgment of the court, was adopted.

The authors Herbstein and Van Winsen in The Civil Practice of the High Courts of South Africa, Fifth Edition, Volume 1, at page 217 thereof put it thus: -

“a ‘direct and substantial interest’ has been held to be ‘an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation.  It is a ‘legal interest’ in the subject matter of the litigation, excluding an indirect commercial interest only.  The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists” – Abrahamse v Cape Town City Council 1953 (3) SA 855 (C) at 859.”

In casu the applicants acquired their properties on the basis of the title Duncan had to that property.  They have transformed bare land to a low-density residential area and have been residing thereat for over 15 years.  HC 2167/19 effectively divested Duncan of the land he sold to the applicants thereby by extension divesting them of the same.

Rule 449 upon which this application is hinged provides that: -

(1)	“The court or a Judge may, in addition to any other power it or he may have, mero motu or upon the application of any party effected, correct, rescind, or vary any judgment or order-

(a)	that was erroneously sought or erroneously granted in the absence of any party affected thereby or

(b)	………………….

(c)	………………….

(2)	The court or a Judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The applicants are affected by HC 2167/19 and the order was granted in their absence as they had not been cited.  In 2013 and 2019 under HC 4209/12 and HC 512/19 the applicants obtained court orders against Duncan wherein Duncan was ordered to surrender title to Lot 7, 8 and subdivision A of Lot 9A Riverside Estates Agricultural Lots.

It is my considered view that they have a direct and substantial interest in the matter.

The applicants seek to be joined to the proceedings under HC 2167/19 should the application succeed.  Counsel for the 1st respondent contends that they have nothing to say in those proceedings as they do not concern them but Duncan and the 1st respondent.

This, to my mind, suggests that a rule 449 application is there for the taking.  In Harold Manyame and Anor v HH 750-15 MATHONSI J (as he then was) had this to say: -

“Rule 449 is silent on the time frame within which an application made under it should be brought but that does not mean that a party relying on that rule is at liberty, without more, to come to court any time seeking a rescission of judgment.  The application should be made within a reasonable time after knowledge of the offending judgment.  In my view 4 years is not a reasonable time.”

In Moonlight Provident (Pvt) Ltd v Sebastian and Others HB 254-16 MAKONESE J cited with approval the case of Khan v Muchenje HH 126-13 where the court dismissed an application for rescission of judgment brought in terms of rule 449 on the basis that such application was not made expeditiously, in that the applicant had taken 6 months to file its application to have a judgment set aside on the grounds that the judgment had been entered in error.

MAKONESE J proceeded to dismiss the rule 449 application which sought to rescind a judgment that had been granted a decade ago and said: -

“The application was not timeously made.  There is need for finality in litigation.”  (See also Grantully (Pvt) Ltd and Anor v UDC Ltd 2000 (1) ZLR 361.

The applicants have made the part that it took all of 17 or so years for the 1st respondent to bring the rule 449 application under HC 2167/19.  In seeking its rescission and joinder this point is one they can argue in opposing the application should this application succeed.

It therefore cannot be said they have nothing to say in HC 2167/19 even if they were to be joined.

The court orders bestowing rights over the property to the applicants are extant.  They therefore have adequate legal interest in the matter.

I am therefore of the considered view that they have the requisite locus standi to bring the application which seeks to vacate the order granted in HC 2167/19.

The second point equally lacks merit and it too is dismissed.

I turn now to consider the merits.  Have the applicants made a case for the relief they seek?  Was the judgment they seek to vacate via the vehicle of rule 449 erroneously sought and erroneously granted?  I would say yes.  This is why:

Counsel for the 1st respondent does not dispute that Duncan is dead.  He however challenges the proof relating to the date of Duncan’s demise.

Mr Nyoni for the applicants filed a scanned copy of a death certificate which gives Duncan’s date of death as 4th September 2019.  The order under HC 2167/19 was granted on 4th October 2019.

In his opposing affidavit, the 1st respondent had put in issue the fact of Duncan’s demise expressly stating that without a death certificate there was no proof of death.  However, when the matter was argued Mr Tavengwa appeared to have abandoned that argument but challenged the admissibility of the death certificate instead.  Counsel’s argument is that the death certificate falls foul of the High Court (Authentication of Documents) Rules, 1971 in that it was not authenticated.

Section 2 of the High Court (Authentication of Documents) Rules, 1971 states that: -

2.	In these rules –

“authentication; in relation to a document, the verification of any signature thereon.”

In Prosper Tawanda v Tholakele Ndebele HB 27-06 CHEDA J pronounced himself on this issue in a matter where a power of attorney was not authenticated by a Notary Public, which power of attorney had been attested to in the United Kingdom.

The learned Judge had this to say: -

“Section (2) of the said Rules define authentication as “authentication” in relation to a document, means the verification of any signature thereon.

In casu the death certificate is a scanned copy which is not certified.  There is no signature thereon which required authentication.

Section 11 of the Civil Evidence Act, Chapter 8:01 provides that: -

“Except as otherwise provided in this Act or any other enactment, a copy of a document shall not be admissible to prove the document’s contents, unless –

all the parties to the civil proceedings concerned consent to the production of the copy; or

the court in its discretion permits the production of the copy, being satisfied that the original document –

has been destroyed or is irretrievably lost, or

is in the possession of another party to the civil proceedings, who refuses to produce the original document, or

is in the possession of a person who cannot be required by law to produce the original; or

is outside Zimbabwe; or

for any other good and sufficient cause, cannot reasonably or practicably be produced.”

The scanned copy is not therefore inadmissible but the issue only relates to the probative value the court attaches to it.  I am persuaded by Mr Nyoni’s argument that Duncan’s death is not in issue and the death certificate confirms that fact.  The date of issue is given as 6 September 2019 and it is duly stamped with a Department of Home Affairs, Johannesburg stamp.

With nothing to suggest that the death certificate is telling a lie, I am of the considered view that Duncan’s death is proved by this document and so too is the date of his death.

The court application under HC 2167/19 was filed on 10th September 2019 and the return of service shows that it was served on Duncan, the first respondent therein, on 11th September 2019 when it was handed to one Darlington Maphosa who identified himself as tenant at the given address.  It follows therefore that when the application was filed Duncan had already died.  The order was granted on 3rd October 2019 when Duncan had probably been long buried.

That said, I did not understand Mr Tavengwa to be arguing that an order sought and granted against a dead person is valid.  The fact that Darlington Maphosa accepted service of the application does not change the fact that Duncan was dead.

To all intents and purposes there was no 1st respondent as he was non-existent at the time the application was filed and subsequently argued.  No order could therefore be validly obtained against a dead person.  (Estate Late Dziruni v Dhliwayo HB 124-10).

As currently pointed out by Mr Nyoni, only the executor of Duncan’s estate could represent the estate.  Counsel referred to the following cases, which all speak to the undeniable fact that only an executor can represent the estate of a deceased person, (Nyandoro and Another v Nyandoro and 3 Others HH 89-08, Clark v Barnacle N.O and 2 Others 1958 R & N 358 (sic).

In Vaidoo v Matlala 2012 (1) SA 143 (GP), a case cited by counsel for the applicants, SOUTHWOOD J had this to say: -

“In general terms, a judgment is erroneously granted if there existed at the time of its issue a fact of which the Judge was unaware, which would have precluded the granting of the Judgment and which would have induced the Judge, if aware of it, not to grant judgment.”

The question to ask therefore is whether the Judge would have granted the order in HC 2167/19 had he been aware that Duncan, the first respondent therein was dead and that the second respondent had not been served with the application?  The answer is the Judge would not have granted that order.

In Banda v Pitluk 1993 (2) ZLR 60, default judgment had been granted against an applicant who had filed notice of appearance to defend and the Judge had not been aware judgment would not have been granted.  (See also Grantully (Pvt) Ltd v UDC 2000 (1) ZLR 361 (SC)).

CHIWESHE JP (as he then was) put it thus in Chitiyo N.O v Chiguba and 2 Others HH 92-13:-

“R 449 is a procedural step to correct an obviously wrong judgment or order.  The power given to the court under the rule is discretional and like all such powers, must be exercised judiciously.”

The order in casu was erroneously sought and granted, it was so granted in the absence of the applicants and the applicants’ rights or interests are affected by the judgment.  (see Mutebwa v Mutebwa 2001 (2) SA 193)

The order in case number HC 2167/19 must therefore be vacated.  I must also point out that the 1st respondent was aware of the applicant’s interest over the property in issue but chose not to cite them when he sought to have the very basis of their entitlement to the property taken away.

The applicants seek to be joined to HC 2167/19 as 3rd and 4th respondents.  I have already touched on the direct and substantial interest the applicants have in this matter when dealing with the issue of locus standi.

“ The applicants’ right to be heard derives from the rules of natural justice embodied in the audi alteram partem rule.  These rules require that “a person be given reasonable notice to make representations where another takes action which adversely affects his/her interests or rights” – per CHATUKUTA J in Matizira v Epworth Local Board HH 37-2100, See also Mashike Ross NO v Swennesbel Limited and Anor 2013 (3) ALL SA 20 (SCA)”

I associate myself with these remarks by CHIWESHE JP in the Chitiyo NO case (supra).

If people who have property and been granted court orders to compel the seller to give them title, built houses in which they have been residing for 15 years on such property are said not to have a direct and substantial interest in a matter where their rights to that property is threatened then one wonders what then can be deemed to be a direct and substantial interest.

The applicants have made a case for joinder and ought to be allowed to make representative under HC 2167-19 should the 1st respondent choose to pursue the matter.

Counsel for the applicants prayed for punitive costs.  Can it be said the 1st respondent’s opposition was unnecessary and deserving of censure?  I think not.  The basis of the opposition, whilst it did not find favour with the court, stemmed from the 1st respondent’s position that to rescind the order in HC 2167/19 is tantamount to going back to an untenable legal position.  I hold a different view for reasons articulated in this judgment.

The opposition however cannot be said to amount to what MATHONSI J (as he then was) refered to as “amazing” in the Dziruni case (supra).

I am therefore not persuaded to award punitive costs against the 1st respondent.  There is however no reason to depart from the general rule and allow costs to follow the cause.

In the result, I make the following order

1.	The order of this court granted on 3 October 2019 under cover of case number HC 2167/19 be and is hereby rescinded.

2.	The 1st and 2nd applicants be and are hereby joined in case number HC 2167/19 as 3rd and 4th respondent, respectively.

3.	1st respondent herein be and is hereby directed to serve his court application filed under case number HC 2167/19 on the applicants herein should he choose to pursue the said application.

4.	1st respondent to pay costs at the ordinary scale.

Moyo and Nyoni legal practitioners, applicants’ legal practitioners

Messrs Mutuso, Taruvinga & Mhiribidi Attorney legal practitioners, 1st respondent’s legal practitioners