Blesser Tawodzera V Leopold Rugare Chindanya

### Preamble
1
HH 653 - 25
HC 3595/25
---------


BLESSER TAWODZERA

versus
LEOPOLD RUGARE CHINDANYA

HIGH COURT OF ZIMMBABWE

MAMBARA J

HARARE 16 & 22 October 2025

Opposed Application

G Madzoka, for the applicant

B T Mudhara, for the respondent

MAMBARA J:

This is an opposed application brought under Rule 27, alternatively Rule 29, of the High Court Rules 2021, seeking rescission of a default judgment granted in HC 7459/18 in favour of the respondent. The judgment reinstated the respondent into possession of certain immovable property and awarded him holding-over damages following execution of an auction sale.

The matter arises from protracted litigation involving the same property under two case numbers - HC 752/17, in which the applicant was dominus litis, and HC 7459/18, revived by the respondent after earlier dismissal for inactivity. The intertwined suits present a cautionary tale on multiplicity of proceedings and the limits of rescission where a judgment follows a confirmed judicial sale.

Background

The applicant purchased the property in issue from one Pahwaringira. Disputes soon arose between them, prompting litigation under HC 752/17. While that matter was pending, Delta Corporation obtained judgment against Pahwaringira for an unrelated debt and attached the same property in execution. The property was publicly advertised and sold at a sheriff’s auction, the respondent emerging as the highest bidder. The sale was confirmed and transfer duly effected into his name.

Following transfer, Pahwaringira relinquished possession to the respondent. The applicant, asserting rights under his earlier agreement of sale, subsequently entered the property and caused the respondent’s eviction using uniformed personnel. The respondent reacted by instituting HC 7459/18 to vindicate his ownership and claim damages for unlawful occupation.

Because both matters concerned the same property, they were consolidated, the respondent’s action treated as a counter-claim. Before judgment could be rendered, the presiding judge resigned. In time the suits lay dormant and were administratively dismissed by the Registrar for want of prosecution.

The respondent thereafter revived his matter, served the necessary notices, and obtained a default judgment restoring him to possession and awarding holding-over damages. The applicant was absent from that hearing. He now seeks to have that judgment set aside.

The applicant initially filed a first application for rescission. When it was opposed and its defects exposed, he withdrew it and filed this fresh application. In the first application he swore that he failed to attend because he believed the case had been finalised. In the present one he asserts that he was never served with the notice of set-down. The contradiction lies at the heart of this judgment.

Grounds and Relief Sought

In his founding affidavit the applicant relies on Rule 27(1), which allows a party against whom judgment was given in default to apply within one month of learning of the judgment for it to be set aside. Alternatively, he invokes Rule 29(1)(a), permitting rescission of a judgment “erroneously sought or erroneously granted in the absence of any party affected thereby.”

He avers that the judgment was granted in error because the notice of set-down was never served upon him or his lawyers, contrary to Rule 54(3), (6)–(8), which requires the Sheriff to serve such notices and to file a return of service. He further alleges good prospects on the merits: that the property was res litigiosa at the time of the auction, rendering the sale void; that the respondent was a mala fide second purchaser in a “double sale”; and that the damages awarded were excessive and unsupported by evidence.

The respondent opposes, contending that service was properly effected and that the applicant’s shifting explanations demonstrate a lack of candour. He maintains that he lawfully purchased the property at auction, obtained confirmed transfer, and lawfully re-entered following execution. He argues that the present application is a stratagem to re-open closed litigation.

Submissions

For the applicant, Mr Madzoka submitted that absence of a return of service meant no proper notice was given, thus the judgment was “erroneously granted.” He invoked Supa Plant Investments (Pvt) Ltd v Chidavaenzi, 2009 (2) ZLR 132 (H) and Chenga v Chikadaya and Ors SC 07/13 on the doctrine of res litigiosa, arguing that property subject to pending litigation cannot be sold to defeat those proceedings. He also referred to Kasukuwere v Mangwana SC 78/23 on the principle that the burden of proving service rests on the party alleging it. He contended that the property should revert to the applicant and that the respondent’s possession is tainted.

For the respondent, Mr Mudhara submitted that the applicant’s present version contradicts his earlier sworn statement in his first rescission and in an affidavit supporting a stay of execution, where he admitted believing the matter had been finalised. He relied on Leader Trade Zimbabwe (Pvt) Ltd v Terrence Michael Smith HH 131/03 where Ndou J held that courts will not credit inconsistent explanations. He also cited Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd and Ors  SC 64/23 and Hama v NRZ 1996 (2) ZLR 664 (S) to emphasise that honesty is the cornerstone of judicial discretion.

Counsel for the respondent further argued that even if service were defective, the applicant’s case has no merit: the sale was a judicial sale, not a private alienation; the respondent was an innocent third-party purchaser protected by the principle in Mapedzamombe v Commercial Bank of Zimbabwe 1996 (1) ZLR 257 (S); and the damages were proved in evidence unchallenged by the applicant’s absence. Reliance was also placed on Kudakwashe Shamuyarira v Goredema HH 339/17 where Chiweshe J affirmed protection of bona fide purchasers at sheriff’s auctions.

In replication, Mr Madzoka maintained that service was never proved, that the onus remained on the respondent, and that the agreement of sale on record did not demonstrate an auction purchase. He insisted the property was res litigiosa and incapable of transfer pending finalisation of the earlier dispute.

Issues for Determination

The principal questions are:

Whether the applicant has shown good and sufficient cause under Rule 27;

Whether the judgment was erroneously granted within Rule 29(1)(a);

Whether the property remained res litigiosa and the sale voidable; and

Whether, in the exercise of discretion, a court should extend indulgence to a litigant whose explanations are inconsistent and lacking in candour.

Analysis

A. Timeliness and procedural propriety

The applicant learnt of the default judgment on 26 June 2025 when the Sheriff served a notice of execution. He filed this application on 22 July 2025, within the one-month window required by Rule 27(1). The application is therefore procedurally competent, and the preliminary objection of lateness properly fell away.

B. Explanation for default

The applicant’s credibility falters on his inconsistent explanations. In his earlier rescission he stated that he thought the matter was finalised. In this one he claims ignorance of the hearing because of non-service. These versions cannot co-exist. A litigant who proffers mutually destructive accounts under oath forfeits the court’s trust. As Ndou J observed in Leader Trade Zimbabwe (supra), once a court finds a party untruthful on one aspect, it is entitled to reject the entirety of his explanation. I accept the respondent’s submission that the present narrative was an afterthought crafted to salvage a hopeless case. On this ground alone, the applicant fails to establish a reasonable and acceptable explanation for default. The court will not exercise its discretion in favour of a litigant who is not forthright. See Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S). The discretion is judicial and must be exercised against abuse and the general line of authorities warning that untruthfulness is corrosive of any plea for indulgence.

Even if service was irregular, the applicant’s conduct— unauthorised eviction of the registered owner, and shifting affidavits—betrays wilful disregard of due process. Rule 27 requires both an acceptable explanation and a bona fide defence. The applicant meets neither limb.

C. Whether the judgment was erroneously granted

Under Rule 29(1)(a) a judgment is erroneously granted when the court proceeds on a mistaken assumption of fact or law, such as lack of notice to an affected party. Yet the error must be demonstrated. Here, the record contained a notice of set-down listing the applicant’s then-legal practitioners. The Sheriff’s return may not have been produced, but there is no affirmative proof that service did not occur. Moreover, the applicant himself previously admitted awareness of proceedings. The alleged error is therefore unsubstantiated. See Doves Funeral Association SC 64/23.

D. Res litigiosa and effect of judicial sale

The doctrine of res litigiosa protects property from alienation while litigation over it subsists. But where the property is attached and sold in execution of a judgment, the sale is judicial, not private, and a confirmed sale vests clean title in the purchaser. This principle, settled in Mapedzamombe v CBZ (supra), ensures certainty in execution sales. To invalidate such sales merely because collateral suits persist would destabilise the execution process. The applicant never challenged the attachment, the sheriff’s conduct, or the confirmation of sale at the proper time. He cannot now invoke res litigiosa to undo a completed judicial act. The pendency of proceedings between the applicant and Pahwaringira did not sterilise the property against attachment and sale for an unrelated debt lawfully pursued by Delta Corporation. Once the sale in execution was confirmed and transfer passed to the respondent, the law’s policy of finality intervened. To undo that outcome, an aggrieved party must attack the sale timeously and on recognised grounds (material irregularity vitiating the sale; fraud; want of authority; or lack of compliance that goes to the root). The applicant doe s not allege let alone prove, that the attachment, auction, confirmation, or transfer were a nullity. Nor has any court set aside the sale.

The proposition that property remains eternally res litigiosa because one of several suits is incomplete is untenable. Where one process reaches culmination – judgment, attachment, confirmed sale, transfer – the rights of an innocent purchaser are not held hostage to indeterminate disputes elsewhere between different parties on different causes. Were it otherwise, commerce would be paralysed and sheriff’s sales rendered precarious? The law strikes the balance by requiring prompt procedurally correct challenges to the execution process itself. The applicant did not bring such a challenge.

Nor is this a case of double sale. The respondent purchased not from Pahwaringira but from the Sheriff under lawful process. A judicial sale extinguishes previous private equities. See Kudakwashe Shamuyarira v Goredema HH 339/17. The applicant’s reliance on Supa Plant Hire and similar authorities concerning competing private purchasers is misplaced.

Once the sale was confirmed and transfer registered, the respondent acquired real rights enforceable erga omnes (against everyone). Those rights could be impugned only by timely proceedings to set aside the sale for fundamental irregularity or fraud, none of which is alleged.

E. Damages and merits

The respondent’s claim for holding-over damages was supported by affidavit evidence quantifying loss of use. The applicant, being in default, offered no rebuttal. It is trite that a litigant who absents himself from trial cannot later challenge uncontroverted proof. See Songore v Olivine Industries 1988 (2) ZLR 210 (S). This Court cannot re-litigate quantum at rescission stage. The respondent’s restoration to possession and the award of holding-over damages followed naturally from his status as registered owner after a confirmed judicial sale. The Court will not rescind a judgment that simply vindicated those rights absent a cogent, pleaded defence demonstrating a realistic prospect of a different result at trial.

F. Candour and abuse of process

The discretion to rescind is equitable. A litigant who is dishonest or manipulative of procedure does not merit indulgence. The applicant’s contradictory affidavits, his self-help eviction of a registered owner, and his serial filings demonstrate bad faith. As the Supreme Court noted in Hama v NRZ (supra), courts assess credibility not in fragments but as an impression of honesty. The applicant has not been candid; the Court therefore declines to believe him.

Rescission is not an appeal in disguise. Its purpose is to correct procedural injustice, not to reopen substantive disputes already determined. To grant it here would undermine the finality of judicial sales and encourage endless relitigation whenever an aggrieved party loses possession.

The respondent is a third-party purchaser who has, for all practical purposes, been whipsawed by serial litigation and extra-curial eviction. The prejudice of unsettling his title—after confirmation and transfer—far outweighs any asserted equities of the applicant, particularly where the applicant sat out the crucial hearing, then vacillated in his explanations, and has never mounted a proper, timeous challenge to the sale process itself.

The Supreme Court’s guidance in Mapedzamombe (supra) is apposite: the integrity of confirmed judicial sales is a systemic value. The floodgates would open were disappointed litigants allowed to revisit, via rescission, the merits of an already-final execution and transfer on the thin basis that some other lawsuit somewhere remains incomplete.

Conclusion

The applicant has failed to show either a reasonable explanation for default or a bona fide defence with prospects of success. He has not demonstrated that the judgment was erroneously granted. His allegations of non-service are unproven, his credibility impeached, and his legal defences untenable in light of settled law on judicial sales.

The Court accordingly finds that this application constitutes an abuse of process designed to delay the inevitable and to frustrate a purchaser who lawfully acquired and was restored to his property through due execution. This application is, in truth, an attempt to circumvent the consequences of a lawful judicial sale and a properly obtained judgment by dressing up merits arguments as grounds for rescission. The Court will not assist.

In the result, it is ordered that—

The application for rescission of the default judgment in HC 7459/18 be and is hereby dismissed.

The applicant shall pay the respondent’s costs on the legal-practitioner-and-client scale.

Mambara J: ………………………………………….....

Hatinahama & Associates, applicant’s legal practitioners

Mundia & Mudhara, respondent’s legal practitioners