Obert Mugumwa v Chipo Muwani & 4 Ors

### Preamble

1

HH 620-25

HCH 3536/23

---------

OBERT MUGUMWA

versus

CHIPO MUWANI

and

THE DIRECTOR OF HOUSING AND COMMUNITY SERVICES

and

THE SHERIFF FOR ZIMBABWE

and

MICHAEL SENGERAI MUWANI

and

CITY OF HARARE

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE; 30 June, 1 & 25 July, 8 September & 10 October 2025

Civil Trial

C Sakupwanya, for the plaintiff

L T Muringani, for the 1st and 4th defendants

No appearances for the 2nd, 3rd, and 5th defendants

DEMBURE J:

[1] A tale of default judgments! The parties have been in and out of this court haggling over an immovable property called Stand 3462 Dzivarasekwa Township, also known as Stand 3462, 9th Crescent, Dzivarasekwa 4, Harare (“the property”) since 2001. In different suits over the said property, either the plaintiff or the first defendant would obtain mainly default judgments, which at most have been conflicting decisions. At one time, the plaintiff was in occupation of the property, only to be evicted by a court order obtained in default by the first defendant. He did not relent but fought back. Armed with a court order, also obtained in default and later revived, the plaintiff had the cession of the property registered in his name with the City of Harare and, therefore, now claims the remedy of rei vindicatio. This hotly contested action was instituted on 30 May 2023, and the plaintiff seeks the eviction of the first and fourth defendants and all those claiming occupation through them from the property and costs of suit on an attorney-client scale.

THE FACTS

[2] The plaintiff is a male adult Zimbabwean. The first and fourth defendants are a married couple, being wife and husband respectively. The property in question is in their possession. The second defendant was cited as the Director of Housing and Community Services. The Sheriff for Zimbabwe is the third defendant cited as the official responsible for the execution of court orders. The fifth defendant is the City of Harare, a local authority responsible for the administration of Council properties and currently the registered owner of the property.

[3] The plaintiff, on one hand and the first and fourth defendants, on the other, claim to have purchased the property and acquired the rights, title and interest therein. It is not in dispute that the property was originally sold by the fifth defendant to the late Phillip Chikonyora in 1984. The said agreement of sale was signed by the said parties on 8 November 1984. The agreement was an instalment sale for thirty (30) years commencing on 15 December 1984 and terminating on 30 November 2014. The purchaser had to pay a deposit of $20.50 on or before the signing of the agreement and monthly instalments of $3.36 to cover the balance of the purchase price and interest.

[4] On 18 July 1994, Phillip Chikonyora died, and his eldest son, Lovemore Chikonyora, was appointed the heir to his estate through the certificate issued by the Assistant Master on 23 February 1999. Subsequently, on 15 March 1999, the said Lovemore Chikonyora was appointed the executor dative of the estate of the late Phillip Chikonyora in terms of the Letters of Administration issued by the Master of the High Court under DRH 509/99.

[5] The plaintiff averred that he purchased the property from the late Phillip Chikonyora in 1984 and that cession of rights, title and interest therein was commenced on 1 December 1984. He further alleged that the cession could not be completed as the construction of the structure on the property was yet to be completed. It was also averred that Lovermore Chikonyora later sold the property to the first and fourth defendants after registering the estate of his late father. The agreement of sale between the first defendant and Lovemore Chikonyora was executed on 15 January 2000.

[6] It was not in dispute that on 21 March 2001, the first defendant (as the applicant therein) obtained a default judgment in Case No. HC 1969/2001 before HLATSHWAYO J (as he then was) against Lovemore Chikonyora (the first respondent then) and the Director of Housing and Community Services City of Harare (second respondent), in the form of a compelling order as follows:

“a) The 1st respondent be and is hereby ordered to sign all necessary documents to cede Stand No. 3462, 9th Crescent Dzivarasekwa, Harare to the applicant within 14 days of service of this order.

b) That upon failure by the first respondent, Deputy Sheriff be and is hereby authorised to sign the cession forms on behalf of 1st respondent and 2nd respondent is ordered to accept and process them.

c) The Deputy Sheriff is hereby ordered to evict the 1st respondent and all those claiming through him from Stand No. 3462, 9th Crescent, Dzivarasekwa, Harare.

d) That 1st respondent to pay costs of suit.”

[7] Following this court order, the first defendant signed an agreement of assignment with the fifth defendant in terms of which she took cession of rights, title and interest in the property. It was not seriously challenged on trial that an addendum to the agreement of sale was signed on 13 September 2001 in terms of which the fourth defendant signed as the registered joint holder of the rights in the property with the first defendant. In his declaration, the plaintiff had, however, pleaded that the fourth defendant was added to the property on 11 November 2019, a date which could not be sustained as the addendum thereof produced as exhibit 18 confirmed the date to be 13 September 2001.

[8] The plaintiff further pleaded that he applied for rescission of the default judgment granted in favour of the first defendant. The court application was filed on 6 September 2001 by the plaintiff, as the applicant, in Case No. 8462/01, reference Case No. 1969/01. The order was granted in default of Lovemore Chikonyora (the first respondent), the first defendant (second respondent) and the Director of Housing and Community Services N.O. (the third respondent) on 9 July 2008 before kudya J (as he then was). The certificate of service for the first defendant was filed on 3 July 2008, together with the certificate for the service to the second defendant, stating that service was effected on the defendants on 6 September 2001. These pleadings are common cause and constituted part of the plaintiff’s bundle of documents filed on 12 July 2023. The said court order reads:

“1. The default judgment which was entered in Case No. HC 1996/01 against the applicant on the 21st March 2001 be and hereby set aside.

2. The first respondent be and is hereby ordered to sign all documents necessary for the cession of the late Philip Chikonyora (the deceased)’s rights and interests in Stand 3462, 9th Crescent, Dzivarasekwa Township, Harare (the property) to the applicant, failing which, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised and empowered to sign all documents necessary for the cession of the deceased’s rights and interest in the property to the applicant.

3. The third respondent be and is hereby ordered to approve all documents signed by the 1st respondent, failing him, by the Sheriff of Zimbabwe or his lawful deputy ceding the deceased’s rights and interests in the property to the applicant.

4. The costs of this application be paid by the first respondent and the second respondent on legal practitioner and client scale.”

[9] The first defendant instituted an action for the eviction of the plaintiff from the property together with the payment of arrear rentals in Case No. HC 4574/16. The claim was granted in default of the plaintiff (the defendant therein) on 25 March 2021 before tsanga J. The court ordered the eviction of the plaintiff and all those claiming occupation through him from the property, that he pays the sum of US$4,289.79, being arrear rentals up to February 2016 and the sum of US$361.92 per month from the month of March 2016 up to the time of his eviction, as well as costs of suit. The plaintiff was evicted from the property in terms of the said default eviction order.

[10] The plaintiff was not deterred by the eviction; he applied for revival of the court order issued under Case No. 8462/01 on 9 July 2008 in Case No. HC 3912/21. The application was granted before wamambo J on 22 February 2022. The order revived the court order granted before kudya J (as he then was) on 9 July 2008 under HC 8462/01 with no order as to costs. This was one of the rare cases between the parties where there was no default judgment. Following this order, the plaintiff had the cession of the property registered in his name with the City of Harare. The memorandum of agreement of assignment thereof between Lovemore Chikonyora, the plaintiff and the fifth defendant was signed on 8 June 2022.

[11] The plaintiff averred that following the cession of the property effected in his name, he is now the registered owner of the property. The first defendant applied for condonation for late filing of an application for rescission of judgment granted against her in HC 8642/01 on 9 July 2008. This was the other case where both the plaintiff and the defendant attended court duly represented by their legal counsels. On 4 October 2022, the court per chilimbe J dismissed the application with costs.

[12] It was also finally pleaded in the plaintiff’s declaration that, having finally won after numerous legal wrangles, as the registered owner, there is no reason for the defendants to continue occupying his property.

[13] The claim was strenuously opposed by the first and fourth defendants. They contended that they are the owners of rights, title and interest in the property. They denied that the plaintiff purchased the property from the late Phillip Chikonyora. It was averred that the purported agreement of sale was invalid as there was no prior written consent of the fifth defendant in terms of the agreement of sale that the deceased had entered into with the City of Harare. They also pleaded that they purchased the property from Lovemore Chikonyora, who was lawfully appointed the heir to the estate late Phillip Chikonyora. The first defendant, it was further averred, lawfully got the property ceded to her. It was denied that the order obtained against Lovemore Chikonyora was rescinded.

[14] They further pleaded that the cession of the property into the plaintiff’s name was unlawful in that: the order obtained by the first respondent is extant and that the order sought and obtained by the plaintiff was not sought against the fourth defendant who is the registered co-owner of right, title and interest in the property at the City of Harare since 2001 with the first defendant. It was also averred that the transfer or cession into the plaintiff’s name was made in defiance of a court order. It is common cause that on 13 February 2020, the plaintiff (applicant therein) obtained a default judgment against the plaintiff (first respondent) and the Director of Housing and Community Services N.O. (second respondent) in Case No HC 6575/16 before ZHOU J. The order stated as follows:

“1. The transfer of an immovable property known as Stand Number 3462, 9th Crescent Dzvivarasekwa 2, Harare shall not be effected into the name of any third party save with the consent and authority of the applicant.

2. The 2nd respondent be and is hereby barred from accepting any form of transfer of the said immovable property without the consent and authority of the applicant.

3. There is no order as to costs.”

[15] The defendants further contended that the cession was also unlawful in that the order was against the Director of Housing and Community Services, a mere employee of the fifth defendant, who had no legal capacity to effect any cession and that the third defendant was not a party to the plaintiff’s order of 2008 and could not be ordered to perform functions by that order. They prayed that the claim should be dismissed with costs de bonis propriis.

[16] The first and fourth defendants further raised a claim in reconvention or counterclaim. In that pleading, they averred that they purchased the rights, title and interest in the property from Lovemore Chikonyora, who had inherited the property from the estate of his late father, Phillip Chikonyora. They became the purchasers of the property from the City of Harare. They maintained that the court order obtained by the plaintiff in 2008 was unlawful and the purported cession of the property to his name was a nullity. They also stated that the plaintiff brought matters in Case No. HC 7405/22 and HC 3911/21 seeking to evict them, but he abandoned the cases. They asserted that the property belongs to them and seek a declaratory order that they are the owners of right, title and interest in the property and costs of suit on a legal practitioner and client scale.

[17] On 5 September 2024, the plaintiff filed his replication to the defendants’ plea. He averred that the fifth defendant consented to the sale of the property and that the only reason why cession could not proceed was that the property was not fully built. He denied that Lovemore Chikonyora was awarded the property. It was reiterated that Phillip Chikonyora died after cession had commenced into the plaintiff’s name. He insisted that the court order under HC 8462/01 rescinded the default order under HC 1969/01. Since the default order under HC 1969/01 was set aside, he submitted, the cession in favour of the first defendant became a nullity.

[18] The plaintiff further averred that the fourth defendant was not a party to the application under HC 1969/01; therefore, there was no need for him to be cited in 2001. It was his position that the order granted in 2020 in favour of the first defendant could not affect the order granted in 2008. It was also averred that the 2008 order was not irregular. He contended that the Sheriff does not have to be a party to proceedings for him to execute his duties. It was also stated that the court cannot rehear the application that was dismissed by chilimbe J.

[19] The plaintiff did not file a plea to the defendants’ claim in reconvention. To that extent, the first and second defendants’ claim in reconvention was, therefore, unopposed.

[20] The matter was referred to trial on the issues set out in the joint Pre-Trial Conference (“PTC”) Minute before zhou J on 5 February 2025. The triable issues are stated as follows:

“1. Whether or not Plaintiff is the registered owner of stand 3462, 9th Crescent, Dzivarasekwa, Harare.

2. Whether or not cession into Plaintiff’s name was irregular and unlawful.

3. Whether 1st and 4th Defendants are the lawful holders of title and interest in the stand in question.

4. Whether or not the 1st and 4th Defendants should be evicted from Stand 3462 9th Crescent, Dzivarasekwa, Harare.

5. Whether or not the 1st and 4th Defendants’ declaratur should be granted.”

As I have observed, the failure by the plaintiff (the defendant in reconvention) to file an answer or rebut the first and fourth defendants’ claim in reconvention simply means that there was no issue arising therefrom for trial. Accordingly, there being no defence raised to the claim in reconvention, the purported issue number 5 was erroneously identified by the parties as a triable issue.

[21] The trial commenced on 30 June 2025 with the plaintiff testifying for his own case. After his testimony, the plaintiff closed his case. The first and fourth defendants also testified for their own case. Parties duly filed their closing submissions in terms of the case management order issued on 8 September 2025.

THE LAW

[22] The plaintiff’s claim is for the eviction of the first and fourth defendants from the property. It is anchored on rei vindicatio. In his declaration, the plaintiff pleaded that he is the registered owner of the property and that the defendants have no reason to continue occupying his property. The common law remedy of rei vindicatio is available to an owner to recover his or her property from anyone in possession of it without his or her consent. This was aptly set out in Chenga v Chikadaya & Ors SC 7/13 at p.7, where OMERJEE AJA (as he then was) stated as follows:

“The rei vindicatio is a common law remedy that is available to the owner of property for its recovery from the possession of any other person. In such an action, there are two essential elements of the remedy that require to be proved. These are, firstly, proof of ownership and secondly, possession of property by another person. Once the two requirements are met, the onus shifts to the respondent to justify his occupation.” (my emphasis)

See also Eastlea Hospital (Pvt) Ltd v Ndoro & Ors SC 116/23 at p 7 and January v Maferefu SC 14/20 at pp 5-7.

[23] It is trite that ownership in an immovable property can only be conveyed by registration through the Deeds Office. Thus, in Ishemunyoro (Nee Mandidewa) v Ishemunyoro & Ors SC 14/19, at para 10, the court said:

“The right of ownership to immovable property must be registered with the Registrar of Deeds. A title deed is thus prima facie proof that a person enjoys real rights over the immovable property defined in the Deed. In the case of Fryes (Pvt) Ltd v Ries 1957 (3) SA 575 at 582, the court held that;

“Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.”

It is also settled law that “ownership of immovable property is proved by producing a deed of transfer.” See CBZ Bank Ltd v Moyo & Anor SC 17/18 at p 5.

[24] The general principle of the law is that a court order has the force of law and remains binding on the parties unless reversed or set aside. The rule applies even to an order granted in default. The legal position was restated in Magauzi & Anor v Jekera SC 54/22, where the court said:

“When a court grants an order, all subsequent acts affecting the dispute between the parties rely on the court’s order and not the reason or facts the court based its judgment on. Execution of judgment debts is based on court orders and not the reason for which the court order was granted. Therefore, a party or the parties cannot disregard a court order as they are bound by it. In the case of Chiwenga v Chiwenga SC 2/14, it was stated that: The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom. See also CFU v Mhuriro & Ors 2000 (2) ZLR 405 (S).”

[25] It is, therefore, a well-established rule that extant court orders must be obeyed. This principle was affirmed by the Supreme Court in Econet Wireless (Pvt) Ltd v Minister of the Public Service, Labour and Social Welfare & Ors SC 31/16 at p 6, where bhunu JA aptly remarked that:

“The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. If it were not so, and every litigant challenging the validity of any law was excused from obeying the law pending determination of its validity, there would be absolute chaos and confusion, rendering the application of the rule of law virtually impossible. This is because anyone could challenge the validity of any law just to throw spanners into the works to defeat or evade compliance with the law.”

The law has, however, recognised three types of cases where a court order is considered void ab initio and may accordingly be disregarded without the need to have it set aside. The three types of cases where a court order is considered void or a nullity are, namely, where the order is given by a court without jurisdiction, where there is no proper service or where there is no proper mandate. This common law position was recently affirmed by the Supreme Court in Aponte v Antolini Luigi & C.S.P.A & Ors SC 89/25 at p 11, where chitakunye JA had this to say:

“It is axiomatic that the validity of service affects the validity of proceedings. Where there is no valid service the process and the proceedings are a nullity.

In Todt v Ipser 1993 (3) SA 577(A) at 589C the court noted that:

“According to our common-law authorities, judgments are void in only three types of cases, where there has been no proper service, where there is no proper mandate or where the court lacks jurisdiction.” (My emphasis)

In Featherstonehaugh v Suttie 1913 TPD 171 at 178, the court alluded to the fact that:

“If there has been any defect in the service, the summons is of no force; and everything following thereupon is invalid as if the summons had been totally absent.”

[26] The same position had previously been set out in Manning v Manning 1986 (2) ZLR 1 (SC), where the Supreme Court, while relating specifically to an order issued by a court which lacks jurisdiction, held that:

“The fact remains that the village court was not a court of unlimited jurisdiction. It was not, in this case, a court of competent jurisdiction. Its position was governed by the rule “that judicial decisions will ordinarily stand until set aside by way of appeal or review, but to that rule there are certain exceptions, one of them being that, where a decision is given without jurisdiction, it may be disregarded without the necessity of a formal order setting it aside.” — per fannin J in Mkhize v Swemmer & Ors 1967 (1) SA 186 (D) at 197C-D. Its decision, therefore, cannot be relied upon to justify an action otherwise unlawful. It is unnecessary for the purposes of this decision for me to go further and say that it cannot be valid for any purpose whatever.” (my emphasis)

See also Folly Cornishe (Pvt) Ltd & Anor v Topamwa N. O. & Ors SC 26/14.

ANALYSIS

[27] In determining the first and second issues as captured in the Joint PTC minute, namely, whether or not the plaintiff is the registered owner of stand 3462, 9th Crescent, Dzivarasekwa, Harare and whether or not cession into the plaintiff’s name was irregular and unlawful, I must first consider the court order granted in default in favour of the plaintiff. The said court order was granted on 9 July 2008 before kudya J (as he then was) in Case No. HC 8462/01. I fully reproduced what it states above, and it was admitted as Exhibit 3. See p 30 of the record. It was the plaintiff’s case that the order is extant and valid, and it rescinded the court order under HC 1969/01 which compelled cession to be registered in the name of the first defendant.

[28] A legal issue arose whether the said court order is valid and extant, and consequently whether the cession of the property into the plaintiff’s name subsequent thereto was lawful and valid. The validity of the said court order was thrown into doubt as questions arose whether or not there was proper or valid service of the court application on the first defendant (then the first respondent). Rule 231(3) and (4) of the then applicable High Court Rules, 1971 stated as follows:

“231. Filing and Service

(1) A copy of a court application and of every affidavit by which it is supported shall be served upon every respondent.

(2) …

(3) …

(4) As soon as possible after service of a court application and the supporting documents, the applicant shall file with the registrar proof of such service in accordance with rule 41.” (my emphasis)

Mr Muringani argued that the purported certificate of service used to obtain the court order of 2008 was invalid for non-compliance with r 231(4). Ms Sakupwanya chose to ignore this important legal question as she never filed any replying submissions despite the court having granted the plaintiff the chance to do so in the case management order issued by consent on 8 September 2025. The said rule required that the proof of service be filed “as soon as possible” and was couched in peremptory language.

[29] The phrase “as soon as possible” was not defined in the said rules. It is trite that a statutory provision must be given a meaning which is consistent with the context in which it is found. The first canon of statutory interpretation, commonly called the golden rule, dictates that the words of a statute must be given their ordinary grammatical meaning unless that would lead to an absurdity. This position was set out in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 264 D-E, where mcnally JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, “unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

[30] The phrase “as soon as possible” must be given its ordinary grammatical meaning consistent with the context it is found. In the Cambridge English Dictionary, the meaning of the phrase is explained in the following words: “If you do something as soon as possible, you do it as quickly as you can”. The phrase, therefore, has been taken to mean the shortest possible time or within a practicable time. It is imprecise and its construction depends on the circumstances of each case. See the English case of Varesests Administrix v Motor Union Ins. Co. Ltd [1925] 2 KB 127. In the American case of Assistance to the State, 64 Fed. Reg. at 12,579; U.S. ex rel. Prather v Brookdale Senior Living Cmtys. Inc. 838 F.3d 750, 763 (6th Cir. 2016), the phrase “as soon as possible” was interpreted to mean “without undue delay”. Clearly, the use of the phrase implies a requirement to act promptly or as soon as is reasonably practicable under the circumstances. The litigant would be required to act as quickly as is humanly possible, given the context that the court must be promptly informed that the court application has been served on every respondent, as the dies induciae is then triggered by the date of such service. The progression of the matter is dependent on the service of the court application.

[31] Further, by the use of the word “shall” in r 231(4), it denoted that the requirement was peremptory. It is trite that the disregard of a peremptory provision of a statute is fatal to the validity of the pleading or proceedings affected. See Takashinga Kare Housing Pay Scheme v City of Harare & Ors SC 88/25, where mwayera JA restated the law as follows:

“… It is an established principle that the use of the word “shall” in a statutory provision denotes the legislature’s intention of imposing a mandatory or peremptory obligation as opposed to the use of the word "may," which typically suggests a permissive or discretionary provision.

30. In Mukwaira v Minister of Lands, Agriculture, Fisheries, Water & Rural Resettlement SC 15/24, at p 15, the following pertinent sentiments were made:

“It is trite that where the word ‘shall’ is used it denotes a mandatory requirement. Thus, the use of the word “shall” in s 3 (1) (c) is imperative – it denotes that the section is peremptory, and thus compliance with its provisions is mandatory.”

31. Similarly, in Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S) at 80 D-G, this Court held:

“It is the generally accepted rule of interpretation that the use of peremptory words such as “shall” as opposed to “may” is indicative of the legislature’s intention to make the provision peremptory. The use of the word “may” as opposed to “shall” is construed as indicative of the legislature’s intention to make a provision directory. In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances, no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.”

32. Further, in Sibanda & Anor v Ncube & Ors/ Khumalo & Anor v Mudimba & Ors SC 158-20 at p. 15, PATEL JA (as he then was) held that:

“The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211: ‘… in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case on that aspect decide whether the enactment is what is called imperative or only directory…’”

33. In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held that the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.” (my emphasis)

[32] In casu, the plaintiff, as the applicant, in Case No. HC 8462/01 was required by subrule (4) of r 231 to promptly file a certificate of service for the service of the court application on all the respondents for the service to be regarded as proper or valid. It is common cause that the applicant filed the court application under HC 8462/01 on 6 September 2001. Some of the court documents constituting the said application were filed as part of the plaintiff’s bundle at pp 64-65 of the record, including the purported certificates of service at pp 69 and 70. It was also not in dispute that the plaintiff filed the certificates of service purportedly for the service upon the first and second defendants in Case No. HC 8462/01 on 3 July 2008. The service thereof is purported to have been effected on 6 September 2001. The certificate of service was only filed close to seven (7) years later. The same purported proof of service was then used by the plaintiff to obtain the default judgment granted on 9 July 2008 before kudya J (as he then was) against the first defendant. Clearly, the purported proof of service was invalid or a nullity. The plaintiff disregarded the peremptory requirements of r 231(4) to serve and file the certificate of service of the court application as soon as possible after the service. The filing of the purported certificate of service after the lapse of close to seven (7) years from the date of the alleged service cannot, by any stretch of imagination, be taken to be filing as soon as possible or with reasonable promptness after service in the circumstances.

[33] The plaintiff was questioned under cross-examination on the same purported certificate of service, and he claimed he served the application, but did not know the exact dates. When it was further queried that he had used the certificate of service filed in 2008, purportedly for service effected in 2001, he repeatedly said he was lost. He did not strike me as a credible witness. Mr Muringani probed:

“Q. Lets look at the order of HC 8462/01. The messenger had served the applications in 2001?

A. I do not know if the papers were served then.

Q. We have the certificates signed in 2008 saying the service was effected in 2001.

A. I am still not clear.”

It was reasonably clear that something was amiss with the purported service of the court application. The plaintiff himself failed to support that the service was effected in 2001. The same purported certificate of service was used to obtain the default judgment against the first defendant in 2008. The purported certificate of service being fatally defective or a nullity for non-compliance with the peremptory provisions of subrule (4) of r 231 was void ab initio, and nothing valid could flow from it. The consequence is that there was no proper service of the court application on the first defendant. That would, in turn, render the proceedings in Case No. HC 8462/01 a nullity.

[34] The law is clear that where the purported proof of service fails to comply with the peremptory rules, it cannot be accepted as valid proof thereof, and the application cannot be regarded as properly served. Thus, in Bonde v National Foods Ltd SC 72/25, the Supreme Court said:

“In conclusion, in my view, the proof of service that the applicant relies on as proving that the first respondent was served with the urgent chamber application does not comply with the rules and therefore cannot be accepted as proof thereof. The preliminary point raised by Ms Chagonda is thus upheld. The first respondent was not served with the application.”

The application was accordingly struck off the roll with costs.

[35] The Supreme Court in Aponte (supra) emphatically held that in the absence of proper service, the proceedings and the order issued thereto are a nullity. chitakunye JA forcefully said:

“The need for effective service cannot be overemphasised. In CBZ Bank Ltd v Ziyambi & Ors HH 74/17 at p 6, the court alluded to the importance of effective service of process in these words:

“The purpose of the rules on service and why the rules must be adhered to is meant to safeguard the rights of persons who will not have been served with process and therefore being in the dark that a claim has been made against them from having default judgments granted against them. Save as the law may specify by way of limitation or denial of such right, the audi alteram partem rule or doctrine must always be followed. If courts grant orders against persons without giving them an opportunity to defend themselves which opportunity a person can only utilize or elect not to utilize after service of process, the administration of justice will fall into disrepute. A court allowing this would be breaching the rights of such defendant to administrative justice and a fair hearing as provided for in the operative or relevant provisions of ss 68 and 69 and 165 (1) (a) of the Constitution.”

See also CABS v Chirocherwa 2001(2) ZLR 452(H).

It is axiomatic that the validity of service affects the validity of proceedings. Where there is no valid service, the process and the proceedings are a nullity.

In Todt v Ipser 1993 (3) SA 577(A) at 589C the court noted that:

“According to our common-law authorities, judgments are void in only three types of cases, where there has been no proper service, where there is no proper mandate or where the court lacks jurisdiction.” …

In Featherstonehaugh v Suttie 1913 TPD 171 at 178, the court alluded to the fact that:

“If there has been any defect in the service, the summons is of no force; and everything following thereupon is invalid as if the summons had been totally absent.”

This is the scenario obtaining in casu. The irregularities committed by the first respondent render the entire process a nullity. Anything birthed by the fraudulently obtained order for edictal citation cannot stand, as that order was a nullity. The summons issued under HC 8511/18 were therefore not properly and validly served on the appellant as they were a product of an invalid process. The invalidity of the summons as it applies to the appellant entails that there is nothing for him to defend. This Court cannot reward the first respondent for his cunning conduct in obtaining the order for edictal citation and subsequent orders by allowing the appellant to enter appearance to defend such invalid processes…” (my emphasis)

The court went on to state as follows:

“The order for edictal citation was a nullity and so was the service of summons in furtherance thereof. Further, the default judgment being a product of a nullity cannot stand. Had the court a quo applied its judicial mind to the irregularities in question it would have come to the conclusion that the applications before it were not necessary as the prior proceedings were all a nullity. It is trite that a nullity cannot beget a valid process, hence, all the processes were a nullity and generally, one does not need to seek the setting aside of a nullity. This inevitably affects the validity of the proceedings before this Court as they were a product of invalid proceedings.” (my emphasis)

[36] The above findings of law, being those of the Supreme Court, must prevail. Since there was no proper service of the court application birthing the said default judgment or order of 9 July 2008 issued in Case No. HC 8462/01, the proceedings thereof, including the court order, were a nullity or void ab initio. An order that is a nullity need not be set aside. It must be disregarded as it has no legal force or effect for whatever purpose. See also Manning v Manning (supra). The same position was reiterated in the Folly Cornishe (Pvt) Ltd case (supra), where GARWE JA (as he then was) said:

“Having established that the Court had no jurisdiction, the fact that the appellants did not apply for the rescission of the default judgment as provided in the Magistrates Court (Civil) Rules is clearly irrelevant. This is because, in the words of KORSAH JA in Muchakata v Nertherburn Mine 1996 (2) ZLR 153(S), 157 B-C:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it. As Lord Denning MR so exquisitely put it in MacFoy v United Africa Co Ltd (1961) 3 All ER 1169 at 1172;

“If an act is void then it is in law a nullity. It is not only bad but incurably bad … and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

To the above remarks by KORSAH JA that it does not matter when and by whom the issue of validity is raised, I would add that it matters not how the issue is raised or what procedure is adopted. If it is clear upon a consideration of all the circumstances, that an act is void, then everything that is predicated on that act would be equally void.

… In my view, the court a quo was clearly incorrect in its understanding of the effect of the judgment of this Court in the Matanhire case. In that case, chidyausiku CJ made it clear that once the court order granted by mavangira J was found to be patently wrong and irregular, such order was void and nothing could depend on it. Although chidyausiku CJ did not declare the order a nullity, that was the effect of his finding. Had the judge in the court a quo properly applied her mind to the facts of the case before her, she would no doubt have concluded that the Magistrates’ Court had no jurisdiction to order transfer of the stand in question and consequently that the order issued by that court was a nullity.

The fact that the appellants did not apply for the rescission of the default judgment issued by the Magistrates’ Court is, in the circumstances, irrelevant.

Having found that the order of the Magistrates’ Court was null and void, that really should be the end of the matter. Clearly, the transfer to the second respondent was based on an order that was a nullity.” (my emphasis)

[37] Given the law as articulated above, I do not agree with Ms Sakupwanya that the defendants sought a review of the court order. It does not matter how, when or by whom the issue was raised or what procedure was adopted. Upon due consideration of all the circumstances in this case, I am satisfied that the 2008 default judgment granted in Case No. 8462/01 is void. Further, there was no legal requirement for the defendants to seek the rescission of an order that is a nullity. The condonation later sought by the first defendant to file an application for rescission was, therefore, unnecessary. Nothing should arise from that decision. As the court order granted in favour of the plaintiff in 2008 is a nullity, it also follows that the plaintiff did not validly acquire any rights in the property through it, and the purported cession based on the same order was equally a nullity. Accordingly, the purported assignment or cession agreement signed by the plaintiff and the City of Harare on 8 June 2022 (Exhibit 5) was void and of no effect. The plaintiff had no rights flowing from the court order, which was a nullity to enforce or give effect to. Similarly, the purported revival of the same 2008 court order granted on 22 February 2022 (Exhibit 4) was a nullity, as a nullity cannot be revived. It further means that the court order in HC 1969/01 granted in favour of the first defendant was never set aside.

[38] The plaintiff’s claim to be the registered owner of the property crumbled due to the consequences of the void court order of 2008. No valid transfer of the property can arise from a nullity. See Folly Cornishe (Pvt) Ltd (supra). In any event, the plaintiff failed to prove that he was the registered owner of the property, as he had pleaded. It was clear that he was not the registered owner of the property. He completely failed to produce any evidence to show that. Where one has claimed to be the registered owner, he would be expected to produce the title deed confirming such registration at least, as that constitutes proof that one is the registered owner of an immovable property. See Takafuma v Takafuma 1994 (2) ZLR 103 (S). Under cross-examination, he conceded that he had no title deeds for the property. The claim that he was the registered owner was, therefore, legally untenable. His basis was that he had the property registered in his name through a cession following the court order of 2008, as revived. But as I found above, the purported cession based on a court order that is void ab initio could not create any rights in the property in favour of the plaintiff.

[39] In any case, the plaintiff failed to show that he concluded a sale agreement with the late Phillip Chikonyora. His evidence was incredible. In his declaration, he pleaded that he had purchased the property from the late Phillip Chikonyora in 1984 and commenced the process of cession on 1 December 1984. When questioned under cross-examination, he failed to confirm these dates. His position had changed, and he was now saying that the agreement was concluded in 1986. When probed as to why his dates kept changing, he claimed there was a typing error in his papers. I reject this explanation. The declaration was pleaded with an exact date of 1 December 1984. It was clear that the plaintiff was not being honest. He was exposed for being an unreliable witness.

[40] From the plaintiff’s testimony, there was no indication of the purchase price agreed by the parties, nor was there any evidence that he paid a certain sum of money towards the purchase price of the property. An agreement on the purchase price payable is one of the essential elements of a valid agreement of sale. See Ashanti Goldfields Zimbabwe Ltd v Mdala SC 60/17, where the court said:

“The Memorandum of Agreement, in my view, constitutes a valid contract of sale as all the elements for a valid contract are met. These were set out in the case of Warren Park Trust v Pahwaringira & Ors HH 39/09 as follows:

“It is trite and a matter of elementary law that the essential elements of a valid contract of sale comprise:

Agreement (consensus ad idem) as to:-

1.  the thing sold, the (merx) and

2.       the price of the thing sold, the (pretium).”

In other words, a contract of sale comprises three essential elements, that is to say:-

1.       an agreement between the parties to buy and sell.

2.         an agreement on the thing or commodity sold known as the merx.

3.         an agreement on the price known as a pretium.”

[41] The plaintiff did not even indicate any sum as the agreed purchase price for the property. When questioned under cross-examination whether the agreement was only between the two parties, himself and Phillip Chikonyora, he said his wife and Mr Chikonyora’s wife were also there. It was further sought that he clarify as to who the parties to the agreement were, and he replied that it was Mr and Mrs Chikonyora and Mr and Mrs Mugumwa represented by Mr Chikonyora and Mr Mugumwa. This made his case confusing as he also, on the other hand, maintained that he purchased the property in his own right from Phillip Chikonyora. He conceded that he had nothing to place before the court as evidence of that agreement of sale. He claimed under re-examination that he misplaced the agreement of sale and that Phillip Chikonyora did bits and pieces of documents confirming that the plaintiff was the owner. But again, no such documents from Phillip Chikonyora were ever placed before the court to establish that agreement of sale. It was his mere say-so, yet he could not even tell the court the purchase price agreed by the parties or show any proof of payment of the purchase price. He had nothing to establish the essentials of a valid sale. The following exchange between him and Mr Muringani buttressed the position that he failed to establish any sale with the late Phillip Chikonyora:

“Q. You claim to have purchased the property from Phillip Chikonyora, do you have anything to show for that?

A. It is a matter that went to court, and all the evidence is in the records before the court.

Q. Do you have anything as you stand there that shows that you bought the property from Phillip Chikonyora?

A. I am here to support the case before the court. I do not bring any document with me.”

[42] Clearly, the plaintiff conceded that outside the default court order, which was itself a nullity, he had absolutely nothing of substance to establish his case or claim to having acquired the property from the late Phillip Chikonyora. His bald assertions could not assist him at all to establish a case on a balance of probabilities. It is trite that “he who alleges must prove”. See Circle Tracking v Mahachi SC 4/07. Further, it is trite that bald and unsubstantiated allegations do not establish a party’s purported or announced position. See Buchwa Iron Ore Mining Company (Pvt) Ltd v Sheriff of the High Court Gweru N.O SC 94/24. The plaintiff’s evidence was so poor that he dismally failed to establish his averment that he purchased the property from the late Phillip Chikonyora and acquired real rights in the property from him.

[43] The plaintiff further alleged that he commenced cession during the lifetime of Phillip Chikonyora, which was not completed because the property was not fully developed as required. In his declaration, he even stated the date when cession commenced as 1 December 1984. He, however, performed a volte-face at trial as he then sought to allege that he purchased the property in 1986. He further testified that there were cession forms he had completed at the Council offices, but they were left in the file and would only be finalised upon completion of the house. However, he placed nothing before me to substantiate those allegations. The unchallenged evidence from the City of Harare, in the form of a letter dated 15 April 1999 (Exhibit 13) directed to the Master of the High Court, showed that there was no relationship whatsoever between the plaintiff and the Council over the property. The letter confirmed that the late Phillip Chikonyora, when he died, was in the process of purchasing the property in question from the fifth defendant, which was a complete seven-roomed house. This made the plaintiff’s testimony that there was a record of a cession process of the property into his name which commenced before the death of Phillip Chikonyora to be entirely unbelievable. I reject that evidence. There was also no evidence of any improvements he effected on the property as he had alleged.

[44] Further, while the plaintiff alleged that an employee of the Council deposed to an affidavit confirming the agreement with the City of Harare that the property be put in his name, he admitted he did not bring that document to court. Under cross-examination, he also agreed that there was no written consent given to him and Phillip Chikonyora by the City of Harare for any cession of the property. The exchange was thus:

“Q. Can you be clear that no written consent was given to you and Phillip Chikonyora?

A. I can say so.”

There was, therefore, no evidence of any cession done at the City of Harare with Phillip Chikonyora. The plaintiff even conceded under cross-examination that there was no cession registered in his name at the City of Harare before 2014. He was blowing hot and cold. His testimony was all over the place, and he was exposed as an unreliable witness under cross-examination. There was, therefore, no evidence to show that he purchased the property and subsequently acquired ownership of the property to meet the first essential element of the rei vindicatio. He failed to prove ownership of the property, and his claim must fail.

[45] For completeness, the purported cession to the plaintiff was, in any case, effected contrary to a court order. The court order issued by this court on 13 February 2020, before zhou J in Case No. HC 6575/16 (Exhibit 20 at p 104 of the record) barred the transfer of the property into the name of any third party without the consent and authority of the first defendant. The plaintiff was a party to that court order. The order also barred the second defendant, in his official capacity, from facilitating the registration of any such transfer. That order was still extant when the cession of the property was registered or effected in 2022. The transfer of the property or the cession thereof was done contrary to the court order. It is trite that a transfer made contrary to a court order is a nullity. See Sithole v Sithole & Ors HH 139/18, where dube J (as she then was) put the legal position very clearly as follows:

“In Schierhaut v Minister of Justice 1926 AD 99 @ 69, per INNES CJ the court said the following of things done contrary to a court order,

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no effect. The rule is thus stated: Ea quae lege fiery prohibentux, si fuerint facta, non solum inutilia, sed pro nfectis habeantur: licet legislator fiery prohibuent tantum, nec speccialiter dixerit inutile esse debere quod factum est: Code 1.14.5. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done and that whether the lawgiver has expressly so decreed or not: the mere prohibition operates to nullify the act… and the disregard of peremptory provisions in a statute is fatal to the validity of the proceeding affected….”.

Similar sentiments were echoed in Munyikwa v Mapenzauswa & Anor SC 91/05. In this case, a party sold property contrary to a court order. The court said the following:

“Accordingly, the sale, having been done contrary to the provisions of the High Court order, was certainly not proper. It was therefore not proper to order that the house be transferred to the first respondent, as the sale was a nullity.

Court orders are made so that they are complied with. The order of the High Court made on 16th May 2002 had neither been set aside nor appealed against. The High Court cannot be used to enforce a sale that was carried out contrary to the provisions of a lawful order.

In view of the above, the sale of the property to the first respondent cannot be allowed to stand.”

In the Munyikwa case, the consideration that the purchaser of the property was an innocent purchaser did not carry the day.

A thing that is done in breach of a court order is void ab initio. It is of no legal effect. The failure to comply with a court order has the effect of injuring the rights of the other party. … It is the duty of the court to regulate its own orders. Courts cannot sit back and watch whilst its orders are being disobeyed. As a result, the courts regard anything that is done contrary to a court order to be of no force and effect and is regarded as not having been done at all.” (my emphasis)

[46] Consequently, the purported cession, having been done contrary to the prohibition of an extant court order, was a nullity. It was also purportedly done on the strength of an order that was void ab initio. The plaintiff, therefore, did not acquire any real rights in the property through the purported cession of 2022. It cannot stand. Accordingly, the vindicatory action is unsustainable.

[47] I also considered that the first and fourth defendants' evidence was largely believable and well-corroborated in material respects. There were exhibits which supported their case that they purchased the property and acquired rights, title and interest in the property. The fourth defendant vividly narrated how they purchased the property from the first meeting they had with Lovemore Chikonyora and his mother in the presence of his wife, the first defendant, the interactions they had with their legal practitioners, Tirivangani & Associates and the visits to the Council’s offices confirming that the property had been inherited by Lovemore Chikonyora as the heir to his father’s estate. The evidence that the property was at one time ceded into Lovemore Chikonyora’s name was not in dispute, as the plaintiff himself claimed to have obtained his cession through Lovemore Chikonyora from the estate of the late Phillip Chikonyora.

[48] The fourth defendant’s evidence detailing what happened from the time the cession was registered in their names, first in the first defendant’s name on 18 June 2001 in terms of the court order in HC 1969/01 and later on 13 September 2001 with the fourth defendant in terms of the addendum thereof (Exhibit 18), was largely unchallenged. It must accordingly be accepted. While the first defendant at times would state she did not remember certain details concerning the order in her favour she obtained in HC 1969/01, her evidence corroborated that of the fourth defendant that they signed documents for the cession of the property into their names.

[49] The agreement of sale signed between the first defendant and Lovemore Chikonyora, who had inherited the house as the heir to the estate late Phillip Chikonyora, confirmed the sale of the property. That the payment of the full purchase price was paid through Tirivangani & Associates was not challenged. Although there was a concession from the first defendant under cross-examination that the addresses used by the parties in the agreement of sale were incorrect, in my view, that erroneous record of the seller and the purchaser’s addresses as 20 Mango Harare and 20 Orange Harare respectively does not render the whole agreement invalid. The error was immaterial to invalidate the sale. She also stated that the agreement was drafted by their lawyers, who asked them to sign, which she did. The certificate of heir and Letters of Administration issued to Lovemore Chikonyora were never challenged. The fact that on 18 June 2001 the first defendant signed an agreement of assignment or cession of rights, title and interest in the property with the City of Harare followed by the addendum to the agreement of sale signed on 13 September 2001 by the defendants now incorporating the fourth defendant as the registered joint holder of a real right over the property with first defendant was not seriously challenged.

[50] It was clear that the registered owner of the property, being the fifth defendant, registered the first and second defendants as the holders of rights, title and interest in the property. Having been the joint holder of rights in the property with the first defendant, the fourth defendant’s rights over the property cannot be validly taken away by any order without him being cited in the proceedings and served with the process. It was clear from the evidence that the court order that sought to compel the cession of the property in the plaintiff’s name was granted when the fourth defendant, who was a joint holder of rights, title and interest in the property, was not a party. The court order could not be enforced against him. It is trite that a court order cannot bind a person who is not a party to it. This position was affirmed by the Supreme Court in Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC 40/15, where gowora JA (as she then was) aptly stated:

“In Hundah v Murauro 1993 (2) ZLR 401, the point was made that for a party who has a real interest in the matter to be bound by a judgment of the court, such party should be cited…If only to ensure that it is bound by whatever judgment is given. Such an order does not bind it if it was not a party”.

The fourth defendant’s rights could not lawfully be taken away by an order granted without him being joined and served with the application. In any case, this issue is now merely academic as the court order of 2008 and the proceedings thereof were themselves a nullity. The court order granted in favour of the plaintiff, being void, has no valid consequences and, therefore, cannot be of any use or assistance to the plaintiff as against the defendants.

[51] It was common cause that the first defendant had obtained a court order in Case No. HC 1969/01 on 21 March 2001 before hlatshwayo J (as he then was) compelling the cession of the property into her name. The said order remains extant as it was never set aside. There is no doubt that following that order, the first defendant signed the agreement of assignment with the City of Harare. The first and fourth defendants subsequently acquired full rights in the property after the lapse of 30 years in 2014, in terms of the original sale agreement to Phillip Chikonyora. That they paid the full amounts due to acquire the property to the City of Harare in terms of the agreement was not even challenged under cross-examination. Their rights are unimpeachable. The third triable issue is, therefore, resolved in the first and fourth defendants’ favour.

[52] It is common cause that the first and fourth defendant filed a claim in reconvention or counterclaim together with their plea in terms of the rules of court. Upon filing such a claim in reconvention, the provisions of r 40 of the High Court Rules, 2021 provide for the filing of a replication in the main claim, which must be filed together with a plea in reconvention as an answer to the defendant’s claim in reconvention. The relevant provisions thereof read:

“Replication and plea in reconvention

40. (1) Within twelve days after service upon him or her of a plea and subject to subrule (2), the plaintiff shall where necessary file a reply thereto to be called the plaintiff’s replication which shall comply with rule 37.

(2) …

…

(6) The plaintiff’s answer to a claim in reconvention shall be called “the plaintiff’s plea-claim in reconvention” and shall be governed with the necessary changes by the rules relating to a plea and it shall be bound with the plaintiff’s replication.

(7) The defendant’s answer to the plaintiff’s plea shall be called “the Defendant’s Replication Claim in Reconvention” and the rules for a replication shall with the necessary changes be observed in regard to it.

(8) …

(9) Any party who fails to file and deliver a replication or subsequent pleading within the time stated in this rule shall be as a result of this fact barred.” (my emphasis)

[53] What is clear from the provisions of subrule (6) as read together with subrules (7) of r 40 is that the defendant in a claim in reconvention is required to file his plea or answer to the claim in reconvention together with his replication within the period set out in subrule (1). These provisions are peremptory. The consequence of the failure to file the said documents within the time stipulated under r 40 is that the party who fails to comply is automatically barred in terms of subrule (9). In casu, the plaintiff, as the defendant in reconvention was required to file his plea or answer to the counterclaim within the time he was required to file his replication in terms of subrule (1) of r 40. It is, however, clear from the record that he only filed a replication to the defendant’s plea on 5 September 2024. There was no plea to the claim in reconvention filed within the time prescribed under r 40(1) as read with subrule (6). The effect of such failure was that the plaintiff was barred in terms of r 40(9) in respect of the defendants’ counterclaim. There was, therefore, no answer to their claim before me, and the plaintiff being barred for failure to file that plea, it made the defendants’ claim in reconvention uncontested or unopposed. I am, therefore, of the view that issue number 5 on the joint PTC minute, that is, whether or not the first and fourth defendants’ declaratur should be granted, was erroneously identified as a triable issue. Once the claim in reconvention was not contested, it follows that the plaintiffs in reconvention (the defendants) are entitled to pray for judgment to be entered in their favour with respect to their counterclaim. There was no issue for trial arising from the counterclaim in the circumstances.

[54] This court has the exclusive jurisdiction to issue a declaratory order in terms of s 14 of the High Court Act [Chapter 7:06]. See Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC 66/21 at p 11. The requirements for the court to grant a declaratur are well-established. Thus, in Jonsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (H), this court stated as follows:

“The condition precedent to the grant of a declaratory order under Section 14 of the High Court Act of Zimbabwe 1981 is that the applicant must be an "interested person" in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgement of the court. The interest must concern an existing, future, or contingent right. The court will not decide abstract academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties is not a pre-requisite to the exercise of jurisdiction.”

If the court is satisfied that the applicant is a person interested in an existing, future or contingent right or obligation, it must then decide a further question of whether the case is a proper one for the exercise of the court’s discretion.

[55] I am satisfied that the first and second defendants, who established that they purchased the property and both had an agreement with the City of Harare in 2001 and acquired the rights, title and interest in the property, are entitled to the relief sought. They have a direct and substantial interest in the matter, and there is no reason why the court should not exercise its discretion in granting the relief sought. The extant court order issued in Case No. HC 1969/01 also confirmed the first defendant’s rights, title and interest in the property. In any case, their claim in reconvention for a declaratur was not contested by the plaintiff (as the defendant in reconvention). It ought to be granted.

DISPOSITION

[56] The plaintiff failed to establish one of the essential elements for rei vindicatio that he is the owner of the property in question. While the requirement that the property was in possession of the first and fourth defendants without his consent was common cause, without proof of ownership thereof, his claim for vindicatory relief is legally untenable. He failed to show that he acquired any real rights in the property to seek the eviction of the defendants from the property.

[57] The court order, the plaintiff also sought to rely on was void ab initio as there was no proper service of the court application thereof. It was nothing for which everything that is predicated on it would be equally void. Thus, it is settled that a nullity cannot beget a valid process, and hence, all the processes were a nullity, and generally, there is no need to set aside a nullity. See Aponte (supra). The order purporting to revive the same was of no force or effect. All processes derived from the said court order are a nullity and could not create any right for the plaintiff in respect of the property, being Stand 3462 Dzivarasekwa Township.

[58] Outside the 2008 court order, the plaintiff, who touted it as the panacea to his woes, produced nothing to show that he had purchased the property from the late Phillip Chikonyora. He did not establish any relationship with the City of Harare, the registered owner of the property, outside the cession done in terms of the court order, which gave him a real right over the property. The purported cession or assignment signed between the plaintiff and the City of Harare (fifth defendant) on 8 June 2022 is a nullity or void ab initio. Being a nullity, nothing can arise therefrom for whatever purpose. The court cannot enforce an illegality. Thus, a court cannot lend itself to an illegality: T. M. Supermarkets (Pvt) Ltd v Nkomo SC 26/18 at p 9. The plaintiff’s claim for the eviction of the defendants can only fail, as it is utterly groundless and without any legal foundation.

[59] The first and fourth defendants’ claim in reconvention was uncontested as the plaintiff (the defendant in reconvention) failed to file a plea or answer thereto in terms of r 40. It must, therefore, succeed. Costs shall follow the cause. The first and fourth defendants, in their plea in the main claim, prayed for the dismissal of the plaintiff’s claim with costs on a legal practitioner and client scale de bonis propriis. In the claim in reconvention, they sought costs on a legal practitioner and client scale. There was, however, nothing before me to justify an award of such punitive costs against the plaintiff. The said costs were not also motivated at all in Mr Muringani’s closing submissions. They are not warranted either. It is clear that the plaintiff’s case was largely hinged on a court order which he believed all along was a valid and binding order. To that extent, it would not be in the interests of justice to mulct him with punitive costs in the circumstances.

[60] In the premises, it is ordered as follows:

The plaintiff’s claim be and is hereby dismissed with costs.

The first and fourth defendants’ claim in reconvention be and is hereby granted with costs.

It is hereby declared that the first and fourth defendants are the lawful holders of rights, title and interest in Stand 3462 Dzivarasekwa Township, also known as Stand 3462, 9th Crescent, Dzivarasekwa 4, Harare.

Dembure J: ………………………………………………………..

Mudzonga Law Chambers, plaintiff’s legal practitioners

L T Muringani Law Practice, first and fourth defendants’ legal practitioners