Raviro Mapfumo v Regis Mwarire Esquire N.O. (In his capacity as Magistrate) and Hamton Sariya and Takaidza Jeke

### Preamble
1
HMA 74-20
HC 53-19
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RAVIRO MAPFUMO

versus

REGIS MWARIRE ESQUIRE N.O.

(In his capacity as Magistrate)

and

HAMTON SARIYA

and

TAKAIDZA JEKE

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO 4th AUGUST, 8TH SEPTEMBER & 23RD DECEMBER, 2020

Opposed Application

Mr R. Chavi, for the applicant

Ms A. Katsande, for the 2nd respondent

ZISENGWE J:  	This is an application for review brought in terms of section 27 of the High Court Act [Chapter 9;07] wherein the applicant seeks an order setting aside the decision of the Magistrates Court sitting at Chiredzi. The applicant avers that the decision should not be allowed to stand as it is gross unreasonable. In the impugned decision, the Magistrate, who was cited in this application as the 1st respondent, dismissed two related applications both of which were launched in that court by the applicant.

In the first application the applicant had sought the rescission of a judgment which had been entered into with the consent of the 2nd and 3rd respondents. In the second application the applicant unsuccessfully sought an order for spoliation in respect of certain immovable property. These two applications with the concurrence of the parties were argued simultaneously in the court below because they both related to essentially the same set of facts and involved essentially the same parties.

The brief history of the matter is that the applicant and the 2nd respondent were in a long -term romantic relationship which spanned over a decade. Out of that relationship one child was born. Whether or not that relationship amounted to unregistered customary law union is major bone of contention as between them and was in fact the very foundation upon which the dispute appears to have been based and decided by the court a quo. Whereas the applicant averred in the proceedings a quo as she did in this application that her relationship with the 2nd respondent did attain the status an unregistered customary law union out of which various proprietary consequences ensued, the 2nd respondent presented a contrary view. He maintained that theirs was merely an adulterous relationship because he was all along married to someone else in terms of the Marriage Act [Chapter 5:11] something he claimed applicant was well aware of.

Be that as it may, it is common cause that the said relationship soon nosedived and subsequently collapsed. In the wake of this development the 2nd respondent vacated the house which they shared during the currency of their relationship namely House No. 6764 Makondo Extension, Chiredzi (“the property). Before long he proceeded to sell it to the 3rd respondent for the sum of US$20 000.

This sale is what triggered a series of events which unfolded in quick succession culminating in the two applications being launched by the applicant. Firstly, whereas the 2nd respondent had since vacated the property, the applicant remained in occupation thereof. This then prompted the 3rd respondent to institute legal proceedings for the eviction of the 2nd respondent (and all those claiming right of occupation through him) from the property. That application was specifically directed at and served on the 2nd respondent only.

The 2nd respondent promptly consented to the relief sought. Armed with that consent judgment, the 3rd respondent swiftly obtained a writ for the ejectment of the applicant from the property.

On the strength of the said writ, the Messenger of Court proceeded to forcibly eject the applicant from the property. No doubt startled and aggrieved by the turn of events, the applicant hastily sought a reversal of the fate that had befallen her. To achieve this, she adopted a double-pronged approach consisting on the one hand of an application for the rescission of the consent judgment and an application for the restoration of her possession of the property via an application for spoliation on the other (cases No. GK 343/18 and GL 358, filed on 12 and 17 December, 2018 respectively).

In both instances, the 2nd and 3rd respondents were similarly cited as such both of whom opposed each of those applications. Eventually the parties agreed to have both applications argued simultaneously as earlier stated.

The application for rescission was premised on two interrelated arguments. Firstly, the applicant averred that she had a stake in the property stemming from her unregistered customary law union to the 2nd respondent coupled with her own contribution towards the acquisition of the stand in question as well as to the subsequent developments made thereon. Secondly, she contended that she was never served with the eviction application and was surprised to learn of the consent judgment only when 2nd respondent filed his notice of opposition to her application for spoliation in GL 358/18.

She averred then as she persists in the present review application, that the consent judgment was obtained in a deceitful manner by the 2nd and 3rd respondents whose conduct was calculated at frustrating her rights over the property.

The application for spoliation was based on essentially the same averments, with the addition, of course, of the complaint that her ejectment from the property was improper as due process had not been followed. She averred that she was in peaceful and undisturbed possession of the property at the time of her ejection therefrom. She further specifically averred that the 2nd and 3rd respondents had acted without any court order rendering their actions illegal. It would appear that unbeknown to her at that stage, that the Messenger of Court had merely executed, a court judgment issued at the behest of the 3rd respondent and pursuant to the consent judgment.

Needless to say that at the conclusion of the twin applications, which as indicated earlier, were argued concurrently, both applications were dismissed.

The decision was primarily predicated upon a rejection by the Magistrate of the applicant’s position that her relationship with the respondent had attained the status of an unregistered customary law union.

That conclusion was in turn premised on a finding by the Magistrate that no traditional formalities or rites commonly attending to and associated with an unregistered customary law union had been undertaken. Resultantly, so the Magistrate reasoned, no proprietary consequences could flow from that relationship. More specifically the absence of a customary law union negated, in the Magistrate’s view, the notion of a tacit universal partnership from which proprietary rights could possibly accrue to the applicant.

Emanating from that basic premise, the Magistrate found that the 2nd respondent who was the registered owner of the property was under no obligation to obtain the consent of the applicant to dispose of the same. According to the Magistrate, the 2nd respondent enjoyed real rights over the property hence an unfettered discretion to dispose of the same.

Further in the Magistrate’s view, an order restoring possession of the property to the applicant would unjustifiably interfere with the rights of the 3rd respondent who happened to be an innocent third party who purchased the property.

The Magistrate further rejected allegations of fraud levelled by applicant against both 2nd and 3rd respondents regarding the sale of the property, concluding as he did that insufficient evidence of such malfeasance had been proven by the applicant.

Regarding the failure to serve applicant with the court application for eviction, the Magistrate found that there was no such obligation on the part of the third respondent to do so. This according to him stemmed from the fact that she not being party to the agreement of sale lacked a legally recognised interest in any litigation between 2nd and 3rd respondents.

Also central to the Magistrate’s judgment was a finding that no attempt had been made on the part of the applicant to sue for the cancellation of the agreement of sale, something that would have possibly paved way for that application.

Ultimately the Magistrate found, in respect of the application for rescission that the applicant had failed to establish good cause warranting such rescission of the judgment hence he dismissed it. In respect of the application for spoliation he dismissed it inter alia, on the basis that the ejectment of the applicant was sanctioned by a court order, hence valid.

In the present review application, the applicant attacks the decision of the Magistrate on the basis of gross irregularity in the proceedings and gross unreasonableness in the decision.

The gamut of the application is located in paragraphs 15 – 19 of the applicant’s founding affidavit which on account of the relative importance thereof will be reproduced in full here. They read as follows:

Procedural Flaws

15.	 The 1st respondent did not make any findings in respect of the wilful default of the applicant in the matter nor in respect of peaceful and undisturbed possession of the property. He did not consider the legal requirements for the applications sought.

16.	The 1st respondent applied wrong principles of law “of good cause shown” in coming to a decision dismissing the application for rescission of judgment.

17. 	The 1st respondent imposed a wrong an onerous burden of proof on the applicant in establishing a good defence to the merits.

18. 	The 1st respondent made substituted findings of fact, the kind of which can only be made after a matter is referred to trial.

19. 	The 1st respondent did not consider, nor advance any reasons for not considering the Supreme Court decisions brought to his attention in support of the applicant’s case.

Ultimately the applicant seeks an order setting aside the Magistrate’s ruling and substituting the same with one granting both applications.

In opposing this application, the respondents defended the decision of the court a quo and denied all allegations of irregularity or unreasonableness levelled against the same.

On the merits, the parties basically stuck to their respective positions which they articulated before the court a quo and I need not repeat them all here.

Each of the two applications that fell for consideration before the court a quo will be dealt with in turn.

The application for Rescission

The applicant criticises the dismissal of her application for rescission on two broad bases. Firstly she avers that the Magistrate neglected to consider the question of whether or not she was in wilful default it being supposedly key and pivotal to an application for rescission under the Magistrate Court (Civil) Rules, 1980 (“the rules”). I pause here to point out that these were the rules applicable at the time the matter was heard. They have since been repealed and replaced by SI 11/2019.

Secondly, the applicant contends that on the substantive merits of the eviction application, the Magistrate employed the wrong principle in determining whether or not to rescind the judgment, namely one of “good cause shown”. It was argued in this regard firstly that this test is not applicable in this jurisdiction and secondly that such a test had the effect placing too onerous burden of proof on her in an application for rescission of judgment.

Regarding the question of whether or not the court was obliged to make a pronouncement on the question of wilfulness or otherwise of the applicant in not defending the matter, I believe there was an unfortunate conflation on the part of the applicant of the two separate situations under which an application for rescission may be brought.

A reading of s 39 of the Magistrates Court Act [Chapter 7:10] (“the Act”) and Order 30 of the rules reveals that there are two broad situations under which one may apply for the rescission of a judgment namely;

Application for the rescission  of a default judgment under s 39(1)(a) of the Act as read with Order 30 Rule 1 of the rules; and

Application for the rescission of a judgment by a person affected by a judgment brought under s 39(1)(b) of the Act as read with Order 30 Rule 4 of the Rules

It is only in the former category (i.e. where the opposite party obtains default judgment) where the party seeking its rescission needs to establish that he/she was not in wilful default (Order 3 R 2).

Logically, where any person who was not party to the proceedings but was nonetheless affected by the judgment of the court and seeks to have it rescinded, there can be no requirement for him to show absence of wilfulness of default. This is because the applicant being party to the proceedings, she would not have been served with the application or summons nor would she ordinarily be required or expected to have participated in the same.

In fact the wording of Order 30 R 4 of the rules is clear and self-explanatory. It reads as follows;

“4. (1)	Any judgment of the court may on the application of any person affected thereby who was not a party to the action or matter, made within seven days after he has knowledge thereof, be so rescinded, varied or corrected by the court.”

(2)  The provisions of rules 1 and 2 shall mutatis mutandis, apply to any application referred to in sub rule (1)

This is the category which the applicant found herself in. The fact that the consent judgment was obtained by and was binding between 2nd and 3rd respondents collaterally affected the applicant, obviated the need by the Magistrate to have canvassed the question of wilfulness on the applicant’s part.

Then there is the contentious question of what an applicant is required to show in respect of his or her defence to the main claim in an application for rescission. The applicant, as indicated earlier, avers that the court, placed too onerous a burden (i.e. good cause shown) on the applicant in determining whether or not to grant rescission, when in fact the threshold the applicant needed to surmount was merely an explanation of the grounds of defence to the action of proceedings.

Whereas the qualification in sub rule (2) of rule 4 should in the context of this case, be interpreted as to dispense with the need of proof of absence of wilfulness of the default as discussed above, the applicant’s defence to the cause of action remains of utmost importance.

Before the relatively recent amendment in SI 11/2019, Sub rules 1 and 2 of Order 30 read as follows;

Rescission, variation or correction of Judgments and Orders

1.	(a) 	Any party against whom a default judgment is given may, not later than one

month after he has knowledge thereof, apply to the court to rescind or vary such judgment.

2.	Any application in terms of sub rule (1) shall be an affidavit stating shortly –

(a)	the reasons why the applicant did not appear or file his plea; and

(b)	the grounds of defence to the action or proceedings in which the judgment

was given or of objection to the judgment

In this application the parties sparred over whether the Magistrate erred by employing the test of “good cause shown” and in relying on the case Mnandi Property Development CC v Beimore Development CC 1999 (4) SA 462 at 466 A. What was clear however was that the rules did not spell out the threshold of what the applicant needed to prove regarding her defence to sustain an application for rescission. Accordingly, guidance could only be obtained from the case law authorities on the interpretation of that rule. It suffices however to point out that in South Africa, the two tests of “good cause shown” and “good reason to do so” were ushered in via extensive amendments made to their rule 49 in 1997. They do not appear in the text of our rule 30.

The 1980 rules merely required in Order 30 Rule 2(b) that an applicant needed to state “the grounds of defence to the action or proceedings in which the judgment was given or of objection to the judgment.”

Whether the net effect of the above served to oblige an applicant to “show good cause” or not is a matter of interpretation. What is clear however, is that what the applicant needs to establish on the merits in an application of this nature is much lower than what the court demanded of her.

As correctly submitted on behalf of applicant, the applicable test was aptly stated in the case of Grant Plumbers (Pvt) Ltd 1969 (S) SA 470 (0) as cited with approval in Greenberg v Meds Veterinary Laboratories (Pvt) Ltd 1977 (2) SA 277 (TPD) where the following was stated at 278 H – 279 A:

“The sole question for decision, therefore, is whether the applicant has a bona fide defence to that application. The onus is on the applicant for rescission to establish that fact. The requisites for success in establishing it were stated in Grant v Plumbers (Pvt) Ltd 1040 (2) SA 470 (O) as follows:

“It is sufficient if he makes out a prima facie defence in the sense of setting out averments, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour. The test was approved, inter alia in Naidoo v Cavendish Transport Co (Pvt) 1956 (3) SA 244 (D) at pp 248 – 249; Van Aswegen v McDonald Forman & Co. Ltd 1963 (3) SA 197 (O) at page 200; Msane v Bertie Wilhaus (Pvt) Ltd 1962 (1) F SA 910 (D) at 912; Du Plessis v Du Plessis 1970 (1) SA 683 (O) at p 685. cf Gordon & Anor v Robinson 1957 (2) SA 549 (SR) at p 551 and authorities there cited.”

The Magistrate therefore erred, in my view, in proceeding to delve in detail into the substantive merits and demerits of applicant’s defence. He ought not have embarked on a detailed analysis of applicant’s entitlement (or absence thereof) to the property in an application for rescission as if the issues attending thereto had been dealt with substantively on the merits.

He questioned and dismissed the notion of marriage between the applicant and 2nd respondent. The rejection, as earlier stated was supposedly based, inter alia, or the absence of evidence of the payment of lobola or dowry and the absence of an affidavit from an intermediary (munyai) who is traditionally engaged in customary marriage negotiations. These were matters that should have been reserved for argument in the eviction application should the application for rescission have succeeded. What the applicant needed to do was to put forward averments leading on a prima facie basis to a conclusion of a plausible defence to the action or matter (in the context of this case her claim to the property entitling her to resist the eviction).

When taken to its logical conclusion, applicant’s position as earlier stated was that the sale of the property by the 2nd respondent to the 3rd respondent was a nullity given that she has a stake to that property brought about by her customary law union to the former coupled with her contribution to its acquisition. This in turn according to her meant that her eviction from the property was illegal and unjustified.

The 2nd respondent’s position has been that while acknowledging his romantic relationship with applicant and there being a child sired as a consequence thereof, to deny the existence of any marriage customary or otherwise. Issues such as whether or not a customary law union in fact existed and whether or not in the context of their peculiar set of circumstances, the 2nd respondent was entitled to unilaterally dispose of the property without the concurrence of the applicant could only have been properly resolved in the eviction case should the consent judgment have been rescinded.

Similarly, the question of whether the 3rd respondent supposedly as an innocent third party who purchased the property, was entitled to evict the applicant regardless of the status of the relationship between her and 2nd respondent was a matter that could only have been legitimately decided upon a full ventilation of the issues attending thereto in the main matter (i.e. the eviction proceedings).

The learned Magistrate in my respectful view was too hasty and presumptive in his rejection of the applicant’s possible defence to the claim, arriving as he did at conclusions the kind of which he could only make upon a full hearing of the matter.

It is also pertinent to note that the applicant’s claim to the property was not premised entirely on an allegation of the existence of a customary law union but also as her contribution to the acquisition of the stand and the subsequent construction of the house. Those were averments that the Magistrate could not summarily dismiss or disregard in an application for rescission.

It is not uncommon for partners in a relationship such as the one between applicant and 2nd respondent to acquire properly in respect of which they both contribute to have it registered in the name of only one of them. That person is almost invariably the man for a variety of reasons not least being the patriarchal nature of our society.

An error indeed occurred, a material one at that, (justifying the setting aside of the decision) in the route taken by the Magistrate in arriving at the decision to dismiss the application for rescission. The error coming in the form of the court a quo delving into evidential issues which were not up for determination at that stage.

To conclude this part, I feel constrained to point out that with the promulgation of SI 11/19 (which repealed the 1980 rules) there is better clarity on what the applicant needs to prove in relation to the main claim in an application for rescission.  Order 30 R 2(1) of SI 11/2019 provides as follows: -

Orders which court may make

2.(1) 	On hearing an application in terms of rule 1 and being satisfied that –

(a) 	the applicant was not in wilful default; and

(b) 	there is a good prospect that the proffered grounds of defence or the

proffered objection may succeed in reversing the judgment; the court may (emphasis added)

(c)       rescind or vary the judgment in question, and

(d)        ----------------

Spoliation

It is apparent that the original application for spoliation was predicated on the allegation that the 2nd and 3rd respondents having unlawfully and forcibly divested the applicant property. In her founding affidavit she chronicled the events culminating in her dispossession of the property; most tellingly however, she averred as follows in paragraph 14 thereof;

“The respondents’ actions, whether one or both of them are downright malicious apart from being illegal. They have not acted in terms of any court order.”

What is evident however, is that at that stage the 3rd respondent had infact obtained a judgment (which the 2nd respondent consented to) on the strength of which the Messenger of Court had proceeded to eject her from the property. One cannot talk of spoliation where the act of dispossession took place via the judicial pen after a proper exercise of the court’s discretion from the facts placed before it.

The outcome would perhaps have been different (regarding this leg of the review application) had the allegation in the proceedings a quo been that the 2nd and 3rd respondents had employed a cunning yet devious ploy to achieve the despoilment; that is by disguising a patently unlawful action through the use of the courts. This was not the allegation and I will thus confine myself to the allegation by applicant that the 2nd and 3rd respondents’ actions lacked the legality conferred by a court order. This was obviously erroneous perception borne by the applicant.

The outcome therefore is that the application for spoliation could not have succeeded in the court a quo implying that there was no irregularity, gross or otherwise vitiating the decision to reject the application for spoliation. All I can do is point out orbiter, that considerations such as safeguarding the interest of 3rd respondent as an innocent purchaser of the property, and the registration of that property in the name of the 2nd respondent et cetera (referred to by the magistrate in his judgment) should not in the context of this case, have found relevance in the application for spoliation. All that is required to succeed in such an application is for the applicant to show that at the time of despoilment he or she was in peaceful and undisturbed possession of the property. Regarding possession all that applicant needs to establish is that she had the physical possession of the thing (in the sense of physical holding thereof (detentio) and a concurrent intention to secure the same for her own benefit (animus). See Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 E.

In Manduna v Mutizwa 1992 (2) ZLR 90 (S) at 92 G, GUBBAY CJ remarked in this regard as follows;

“It is only necessary to add that whether possession was acquired secretly, or even fraudulently, is not the enquiry. Injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he was a thief or a robber. The remedy is aimed at the involuntary loss of possession and its object is no more than the restoration of the status quo ante as a preliminary to any investigation into the merits of the respective claims of the parties to the thing in question. See Nino Bonino v De Lange 1906 TS 120 at 122.”

The applicant in this case relied extensively on the ratio in Manduna v Mutizwa 1992 (2) ZLR 90 (S), Bongani v Mutowo & Anor. 1992 (2) ZLR 290 (S) and Manga v Manga 1991 (S) ZLR 251 (S) where the overarching principle is that where a man and a woman have been living together whether married or not; and one moves out, removal by the party moving out of any property which was in their joint possession without the consent of the other party constitutes spoliation. This principle would perhaps have availed the applicant had the dispossession of the property not have been sanctioned by a court order.

In summation therefore, there was nothing irregular or unreasonable in the Magistrate’s rejection of the application for spoliation as the alleged despoilment was backed by a court order. However, the dismissal of the application for rescission was grossly irregular as it was based on wrong considerations

Costs

The general rule is that the substantially successful party is entitled to his costs. The applicant has been substantially successful and there is no good reason to deny her of her costs.

Ultimately the following order be and is hereby given;

Order

The decision of the 1st respondent in respect of GL 343/18 is hereby set aside and substituted with “Application for rescission be and is hereby granted.”

The application for the setting aside of the decision of the Magistrate in GL 358/18 is hereby dismissed.

The 2nd and 3rd respondents to meet the costs of this review.

Ross Chavi Legal Practitioners for the applicant

P.C. Ganyani Legal Practitioners for 2nd and 3rd respondents