Biggie Mudimu v Angela Casalonga

### Preamble
1
HH 389-25
HCH 98/25
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BIGGIE MUDIMU

versus

ANGELA CASALONGA

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE; 20 June 2025 and 2 July 2025

Court application for Rescission of Default Judgment

T Tendengu, for the applicant

N Mugiya, for the respondent

TAKUVA J: This is a court application for rescission of default judgement where the applicant seeks the following relief;

“Application for rescission of default judgement be and is hereby granted.

The judgement entered against the now applicant on the 4th day of December 2024 under the cover of Case No. HCH 4617/24 BE AND IS HEREBY RESCINDED.

Applicants be and are hereby authorized to file their Notice of Opposition to the now Respondent’s Eviction Application under Case No. HCH 4617/24.

The aforesaid Notice of Opposition shall be filed within seven (7) days of the making of this order.

Each party to bear its own costs.”

BACKGROUND FACTS

The applicant is a male adult who has been in occupation of Farm No. 1 Chimbganda West, Marondera since 1999. It is the applicant’s submission that the registered owner of this said farm mandated him to take care of the farm while as he was going back to his home country, France. In 2003, the applicant was then served with eviction summons by the respondent under case number HCH 4123/23. While these eviction proceedings are still pending finalization according to the applicant, respondent initiated other proceedings under case number HCH 4617/24. Applicant argues that the respondent did not serve him with the summons and the alleged person the respondent purports to have served does, not exist. It is on this basis that the applicant argues that his absence on the day of hearing was not wilful and had he been served, he would not have been in default.

The respondent, the executor and daughter of the late owner of the Farm, opposes this application stating that the applicant was indeed served at the address which he had always used which is the Legal Aid Directorate Harare Offices. The respondent also brings the court in its confidence, extinguishing the point that there are still pending proceedings by attaching the judgement in that matter. The matter was since finalized by Mhuri J who struck off the matter from the roll. The respondent on the day of hearing raised 3 preliminary points which the court will proceed to deal with as the judgment was reserved on these points.

PRELIMINARY POINTS

The first point that Mr Mugiya raised during the hearing was that rescission cannot be sought when the applicant in this matter has already been evicted. When one takes a look at the relief being sought in this matter, it directs the parties to go back in time and argue their matter before the court on merits. This would be ideal if the matter being argued was still live. Secondly the respondent took the point that this current application is improper in that the applicant should have chosen another route that restores his right for example a declaratur in terms of s 14 of the High Court Act [Chapter 7:06]. It is however the third point that the respondent took which in my view is dispositive of this matter namely locus standi.

To begin. the case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Settlement & Ors CCZ 01/22 supra will guide this court.

In that case the court stated that:

“It is settled that the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs direct, personal and substantial interest in the matter in contention. In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC 56/07 Malaba Ja (as he then was) said:

“The common law position on locus standi injudicio of a party instituting proceeding in a court of law is that to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right which is the subject matter of the proceedings.”

It is my considered opinion that counsel for the respondent ought to have raised this point first as it holds so much weight. On one hand we have a former employee of the late owner of the farm, who claims to have been given permission to make certain improvements on the farm including the house which he lived in before the eviction. Nothing has been put on record to support these claims. The respondent on the other hand, is the land owner’s executor who was appointed to this role by virtue of being the late owner’s daughter. The respondent went on to evict this employee and as a reaction, the employee is challenging this action. One has to wonder what legal interest is the applicant seeking to protect as a mere employee on this farm. Unless there was anything on record that shows that the late owner afforded the employee certain rights before he died, the applicant has no leg to stand on. The fact that the applicant was in occupation of the farm does not give rise to ownership rights. His occupation of the farm was by virtue of offering a service to his employer that he was hired for, and not in pursuit of inheritance after the owner’s death. As noted before, if there was anything placed before this court by the applicant to prove that the owner granted him some rights then surely the court would have taken a different approach. The case of United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415A – C and Matambanadzo v Goven SC 23/04   held that,

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish locus standi, a party must show a direct and substantial interest in the matter.”

The court finds that the applicant has failed to satisfy the court that it indeed has a direct and substantial interest in the matter as a former employee of the farm owner. The applicant has no right to challenge the ownership of the farm in this dispute since there is nothing that he at any point become anything else other than an employee on this farm. The court upholds this point as being meritorious.

DISPOSITION

The court finds that the applicant has no locus standi and therefore the application is hereby dismissed with costs.

Takuva J: ...............................................................................

Legal Aid Directorate, applicant’s legal practitioners

Mugiya Law Chambers, respondent’s legal practitioners