ERARAH INVESTMENTS (PRIVATE) LIMITED v DOVE WINGS INVESTMENTS (PRIVATE) LIMITED AND OTHERS (10 of 2026) [2026] ZWHHC 7 (5 January 2026)

1 HH 10-26 HCH 3907/25 ERARAH INVESTMENTS (PRIVATE) LIMITED versus DOVE WINGS INVESTMENTS (PRIVATE) LIMITED and IRVINE’S DAY-OLD CHICKS (PRIVATE) LIMITED and THE DEPUTY SHERIFF FOR ZIMBABWE and THE REGISTRAR OF DEEDS OF ZIMBABWE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE, 12 December 2025 & 5 January 2026. Court Application for Condonation and Rescission of Default Judgment Mr. P. Chivhenge with Mr. A. Rubaya for the applicant Mr. K. Sabawu, for the 1st respondent Adv. T. Zhuwarara with Ms. R. T. L. Matsika, for the 2nd respondent No appearance for the 3rd and 4th respondents. WAMAMBO J: The present application compels the court to confront a fundamental tension between the finality of judgments and the imperative of legality. The applicant, Erarah Investments (Private) Limited, seeks condonation for the late filing of an application for rescission of default judgment, and the rescission itself, of an order granted by this court per Honorable CHINAMORA J on 01st February 2023 under Case No. HCH 8466/22. It is worth noting that the order intended to be rescinded compelled the transfer of a property described as “Unit 61 in Stand 668 Borrowdale Brooke Township of Stand 137 Borrowdale Brooke Township” to the first respondent. To support its case, the Applicant raises two issues. Firstly, the applicant’s case is that it was allegedly not served with the application under HCH 8466/22. In addition to that, Applicant also contends that the default judgment enforces a right that springs from an illegal transaction, one that is void ab initio because it violates peremptory provisions of the Regional, Town and HH 10-26 HCH 3907/25 Country Planning Act [Chapter 29:12]. As such, the applicant argues that “Unit 61” is a legal phantom and that the court was misled into ordering the transfer of a nullity. The respondents strongly oppose the application on multiple fronts, both procedural and substantive. At the hearing, a preliminary point was raised by Advocate Zhuwarara for the second respondent, which he urged was dispositive of the entire matter. To properly contextualize the dispute and the preliminary objection, it is necessary to first set out the factual genesis of this litigation. The applicant was the registered owner of Stand 668 Borrowdale Brooke Township of Stand 137 Borrowdale Brooke Township. On 23 October 2002, it entered into an Agreement of Sale with the second respondent, Irvine’s Day-Old Chicks (Private) Limited. The agreement described the subject of sale as “an undivided …% share coupled with an exclusive right of occupation, being Share No. 61 … more fully described as Unit 61”. It recorded a purchase price of $105,000.00, though it stated no consideration was payable. Critically, the agreement was premised on the intention to register a notarial deed purportedly to create undivided shares with exclusive occupation rights. In the wake of the purported sale relayed to above, the second respondent allegedly ceded its rights under this agreement to the first respondent, Dove Wings Investments (Private) Limited, for a sum of $360,000,000.00, on 26 July 2004. It appears common cause that at the time of the 2002 agreement, and at the time of the 2004 cession, there existed no subdivision permit issued under the Regional, Town and Country Planning Act that authorised the creation of a “Unit 61” on Stand 668 – which fact underpins the applicant’s challenge in the main. The only relevant subdivision permit related to in the papers under number SD/1330 was issued by the City of Harare on 28 October 2002—five days after the effective date of the 2002 agreement. That permit authorised the subdivision of Stand 668 into Stands 814 to 820. It makes no mention whatsoever of a “Unit 61”. Furthermore, the Certificate of Registered Title for Stand 818, issued in 2006, contains no reference to Unit 61. Thus, the proprietary right which the first respondent sought to enforce, and which this court ordered to be transferred, was a right purportedly derived from agreements concerning a HH 10-26 HCH 3907/25 portion of land that was never lawfully created. It is against this factual backdrop that the applicant, upon discovering these facts, filed the present application on 4 August 2025. The second respondent, in its notice of opposition and accompanying heads of argument, raised a litany of preliminary points. These included: (a) unpaid costs from Case Number HC2153/25; (b) the application being a combined one for condonation and rescission; (c) failure to cite Rule 7(a); (d) alleged failure to seek an extension of time in the founding affidavit. At the hearing, however, Advocate Zhuwarara – appearing for the second respondent, adopted a strikingly focused approach – which was commendable. He elected not to persist with the bulk of these technical objections. Instead, he concentrated his entire oral argument on a single preliminary point, which he urged upon the Court as dispositive of the matter. In essence, Advocate Zhuwarara contended that the applicant had failed to meet the fundamental requirements for condonation because it had not been candid with the court in its founding papers. He argued that the founding affidavit was deliberately and materially vague on a crucial point: when did the applicant become aware of the alleged illegality? The affidavit states the applicant discovered the illegality only “later”, after a period of engagement with the first respondent. Advocate Zhuwarara submitted that this lack of specificity was not a minor omission but a fatal lack of candour. A party seeking the court’s indulgence, he argued, must take the court fully into its confidence with a clear and honest explanation. By omitting to state when it had its “epiphany”, the applicant had failed to discharge this duty, and condonation should therefore be refused. Secondly, Advocate Zhuwarara invoked the doctrine of peremption (acquiescence). He directed the court’s attention to a trail of correspondence spanning from May 2023 to early 2024 between the applicant’s erstwhile legal practitioners, Mubayiwa Attorneys, and the first respondent’s legal practitioners. These emails and letters discussed the logistics of effecting transfer, requested documentation for ZIMRA, and spoke of engaging the Surveyor. Advocate Zhuwarara argued that this conduct was unequivocal. It demonstrated a clear intention to abide by and implement the court HH 10-26 HCH 3907/25 order. A party who, with full knowledge of a judgment, conducts itself in a manner consistent only with accepting its validity cannot later turn around and seek to challenge it. Among other authorities, he cited the authoritative test from Dabner v South African Railways and Harbours 1920 AD 583 and our own jurisprudence in Dhliwayo v Warman Zimbabwe (Pvt) Ltd & Anor HB 12/2022. He submitted that this point alone was dispositive; if the applicant had acquiesced, the merits of its illegality argument were irrelevant. The door to rescission was closed. Mr. Chivhenge, for the applicant, responded with notable vigour. On the question of candour, he maintained that the founding affidavit furnished a coherent and reasonable explanation. The applicant, under previous representation, had acted under a mistaken belief in the validity of the claim. In his submission, the precise date of discovering the legal flaw was of lesser importance than the sequence of events, which had been fully disclosed. On the issue of peremption, Mr. Chivhenge characterised the correspondence not as acquiescence, but rather as the actions of a party acting in good faith. He stressed that at no stage did the applicant’s legal practitioners expressly concede the validity of the underlying right. The conduct, he argued, was exploratory in nature, not a final and unequivocal abandonment of the right to challenge the order that was sought to be enforced. In his final analysis, Mr. Chivhenge submitted that acquiescence could only arise were the applicant to take positive, tangible steps at the Surveyor General’s office or at ZIMRA. Advocate Zhuwarara, for the second respondent, had, from the outset urged that if these preliminary points were upheld, they would be dispositive of the matter, rendering any consideration of the substantive illegality arguments unnecessary. He pressed that this was the most efficient and legally sound course. This preliminary point therefore requires careful determination, for if upheld, it would render the profound questions of illegality moot. Having heard the submissions of both counsel, I note that the present application is a hybrid application for condonation and rescission. I am persuaded that the issues in this case are deeply intertwined. The merits of the application for condonation and rescission — particularly the strength of the illegality argument, if any — bear directly upon the assessment of both the explanation for delay and the characterisation of the applicant’s post-judgment conduct. In these circumstances, a rolled-up or composite approach is warranted. By considering the preliminary points and the substantive merits in a consolidated analysis, the Court ensures a more complete and just adjudication. This is the approach I have preferred and will adopt in this judgment. HH 10-26 HCH 3907/25 It is common cause that a litigant seeking the court’s mercy for a procedural default must provide a full and honest explanation. As stated in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17, the applicant “must take the court into his confidence and give an honest account of his default.” In casu, the applicant’s explanation is that from March 2023, it operated under a misapprehension. Later, upon proper investigation, which per the Applicant’s account occurred when its current legal practitioners scrutinised the title and permit history, the illegality was uncovered, leading to this application. It was argued for the Applicant that the fact that there was need for the surveyor General to be involved for the creation of the Stand relating to “Unit 61” exposed the illegality that bedeviled the purported agreement between the parties. The law applicable in an application of this nature was stated in the case of Maheya v Independent African Church SC -58-07 which re-stated the law in Herbstein & Van Winsen- The Civil Practice of the Supreme Court of South Africa 4th ed at p 897 where it was held that- “In considering the application for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply the established principles bearing in mind that it has to do justice. Some of the relevant factors that has to be considered and weighed one against the other are; the degree of non-compliance; the explanation therefor; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of judgment; the convenience of the court and avoidance of unnecessary delays in the administration of justice. Biti v AGUR Investments and 3 Others SC-18-25 and Masanhu v City of Harare SC-7-25. It is my view that the delay from March 2023 to August 2025 is inordinate. The explanation, as I have found, is acceptable: it was a delay borne of a mistaken belief, not wilful default. The decisive factor, however, is the overwhelming prospects of success on the merits of the rescission. If the applicant’s argument on illegality is correct—and a preliminary assessment suggests it is powerfully arguable—then a grave injustice would be perpetuated by refusing condonation. The interests of justice demand that a judgment allegedly rooted in an illegal transaction be subject to scrutiny. Condonation should therefore be granted in those circumstances. I hasten to posit that condonation is an exercise of judicial discretion, and in some instances, strong prospects of success do make up for an otherwise alleged inadequate explanation for delay. KORSAH JA in Kombayi v Berkout 1988 (1) ZLR 53 (SC) stated thus if the HH 10-26 HCH 3907/25 tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success in the main matter. I am thus confronted with the following questions. Is it preferable that the facts alleging the discovery of the illegality be pinned to a specific month or day? Yes. Would its absence be fatal to the application? In my view, it is not. The affidavit sets out a believable narrative: initial unawareness of the flaw, a period of cooperation grounded in that unawareness, followed by investigation and the mounting of a legal challenge. The sequence is clear. While pinpointing the precise date of discovery would have reflected greater meticulousness, its omission does not, in the context of this narrative, amount to deliberate obfuscation or a failure of candour regarding the reason for delay. The delay is adequately explained as a period of operating under a mistake of fact. I therefore find no merit in the argument that condonation should be refused for the alleged lack of candour. On the other hand, the doctrine of peremption is a doctrine of finality. Its purpose is to prevent a litigant from blowing hot and cold, from taking the benefit of a judgment or conducting itself in a way that suggests acceptance, only to later seek to undermine it. The test, as set out in Dabner, is stringent: the conduct must be “unequivocal and must be inconsistent with any intention to appeal” (or, in this context, to apply for rescission). I have scrutinised the correspondence exhibited by the respondents. However, a deeper reading reveals ambiguity. The correspondence is replete with references to “challenges,” “delays,” and the need to “engage surveyors.” It reads less like a straightforward implementation of a clear obligation and more like the navigation of a complex and problematic process. Most importantly, there is no letter or email in which the applicant’s legal practitioner states: “We accept the judgment as valid and will proceed to transfer.” Crucially, the applicant has provided a context for this conduct: it was acting under a mistake. It believed the first respondent had a valid claim. Upon discovering the alleged foundational illegality, its conduct changed. This explanation is plausible. The onus of proving unequivocal acquiescence lies squarely on the respondents (Dabner). Where conduct is susceptible to more than one interpretation—as it is here—that onus is not discharged. In the circumstances, I find that the respondents have not established that the applicant’s conduct was so unequivocal as to constitute peremption. Therefore, the preliminary point must HH 10-26 HCH 3907/25 unfortunately fail in this premise. Condonation for late filing of the application for rescission of a default judgment is therefore granted. Consequently, the gateway to condonation is open, and the substantive application for rescission must be considered; seeing that Mr. Chivhenge had equally abandoned his preliminary point with respect to the first Respondent, I will not labour myself by addressing it as it has no bearing on the outcome of this dispute in casu. Having disposed of the issue of condonation, I now turn to the core question: the rescission of the default judgment under Rule 29(1)(a) of the High Court Rules, 2021. That provision empowers the court to rescind or vary an order “erroneously sought or erroneously granted in the absence of any party affected thereby.” For the applicant to succeed, it must establish the existence of such an error. In applications of this nature, the court is not confined to the four corners of the record that was before the court which granted the default judgment. It may properly consider facts subsequently placed before it, particularly where it is alleged that material facts were withheld. This principle was underscored in Collen Dhlamini & 7 Others v Herbert Neube & 3 Others HB-11-18, where the court emphasized that rescission may be warranted if a judgment was granted in the absence of a party and material facts relevant to its issuance were not disclosed. The applicant’s case, in this instance, rests upon two interrelated pillars: a. That “Unit 61” was never lawfully created as a subdivision, and any agreement for its sale is void ab initio under s 39 of the Regional, Town and Country Planning Act [Chapter 29:12]. b. That the first respondent, in applying for a compelling order, and obtaining an order in default, failed to disclose this fundamental illegality and the non-existence of the subject matter to the court, constituting a material non-disclosure that vitiates the order. The respondents’ primary defence, articulated by Mr. Sabawu, is that the transaction was never intended to be a subdivision. They argue it was always conceived as the sale of an undivided share coupled with an exclusive right of occupation, envisaged under section 27 of the HH 10-26 HCH 3907/25 Deeds Registries Act [Chapter 20:05]. Consequently, they submit, no subdivision permit was ever required, and the transaction is not tainted by any illegality. With respect, this argument represents a fundamental mischaracterization of the transaction as documented and as historically pursued. It is an attempt at retrospective alchemy, to transform an illegal agreement into a legal one through a belated reinterpretation of the parties’ intentions. This court cannot engage in such revisionism. A plain reading of the foundational documents leaves no room for ambiguity. The 2002 agreement between the applicant and the second respondent describes the subject of sale as “Share No. 61… more fully described as Unit 61 on the attached plan.” The 2004 cession agreement between the second and first respondents repeatedly refers to “Unit 61” and crucially specifies its area as “1 6736 hectares.” This is not the language of an abstract, unquantified undivided share in a whole property. It is the precise, delineating language of a subdivision. One does not measure an undivided share in hectares; one measures a specific, demarcated portion of land. The respondents’ own conduct belies their present argument. In the application for a compelling order under (HCH 8466/22), the first respondent sought and obtained an order compelling the transfer of “a certain piece of land known as Unit 61.” They did not seek an order for the registration of a notarial deed creating an undivided share. They sought transfer of a defined unit. They cannot now, faced with the illegality of that path, change course and pretend they were always on a different road. Even if one were to entertain the notion that the parties intended to create an undivided share (a notion contradicted by the documents), this does not absolve the transaction from the peremptory requirements of the law at the time it was concluded. The character of the agreement is fixed at its inception. As rightfully submitted by Mr. Chivhenge, Section 39(1)(b)(i) of the Act is unequivocal and peremptory: “No person shall … enter into any agreement for the change of ownership of any portion of a property except in accordance with a permit issued in terms of this section.” HH 10-26 HCH 3907/25 The judicial interpretation of this provision has been consistent and unyielding. In Tsamwa v Hondo & Ors 2008 ZWHHC 1053, Honourable MAVANGIRA J (as she then was) stated the following: “An agreement made in such circumstances is what the section in question prohibits. Any purported agreement for the change of ownership of a portion of a property is therefore null and void ab initio… The language of the statute in s.39 is peremptory and admits of no relevant exception to its applicability.” This principle was recently and forcefully reaffirmed by the Supreme Court in City of Harare v Munzara SC 239/22; the Supreme Court highlighted that agreements purportedly entered into by the parties in breach of section 39 to the extent that they involved the sale of non- existent subdivided portions of a Stand were illegal. It is trite that illegal agreements are void ab initio. As they are invalid, they do not create obligations.” The application of this settled law to the present facts is straightforward. It is common cause that at the time the 2002 agreement was concluded, and at the time of the 2004 cession, no subdivision permit existed that authorised the creation of “Unit 61.” The only permit, SD/1330, created Stands 814 to 820. “Unit 61” is absent. Therefore, the agreements purporting to sell and cede “Unit 61” were agreements for the change of ownership of a portion of property without the requisite permit. They were prohibited by section 39 and are, as a matter of law, void ab initio. A void agreement is a legal nullity. It is not merely unenforceable; it is as if it never existed in the eyes of the law. From a nullity, no rights can be derived. The maxim ex turpi causa non oritur actio (no right of action arises from a base cause) is absolute in our jurisprudence, as confirmed in Dube v Khumalo 1982 (2) ZLR 103 (S). The first respondent’s entire claim to Unit 61 is built upon this foundational nullity. Whilst Advocate Zhuwarara, may have conveniently skirted around the issue of the legality of the underlying transaction, as far as prospects of success were concerned, pointing to the role played by the Applicant leading to the 2002 agreement, he rightly submitted that no party should benefit from its own wrong. This is a sound principle. However, the court has an equally compelling, and indeed superior, duty: not to endorse, sanction, or enforce illegalities. The court’s process cannot be used as an instrument to give legal effect to a transaction that the legislature has expressly prohibited. HH 10-26 HCH 3907/25 Even if, against all odds and evidence, the transaction were somehow considered valid, the order granted is practically and legally impossible to perform. This is a distinct and potent factor weighing in favour of rescission. The parent property, Stand 668, was lawfully subdivided in 2002. It ceased to exist in its original form. It was replaced by new stands, including Stand 818. The Certificate of Registered Title for Stand 818 was only issued in 2006. The agreement purported to sell a “Unit” within a stand that, by the time of the 2004 cession, had already been extinguished and reconstituted. In Hativagone C. & Anor v Cag Farm (Private) Limited & Anor SC-42-15, the Supreme Court was confronted with a similar scenario. The court held: “The subdivision of land is not a matter of form, it is one of substance. Once the appellants obtained a subdivision permit in respect of the farm, the mex as it originally stood and offered to the respondent had ceased to exist. The principle lex non cogit ad impossibilia states that specific performance should never be ordered if compliance with the order would be impossible, as it would be here.” The same principle applies with full force. The compelling order, orders the transfer of “Unit 61 in Stand 668.” Stand 668, as a transferable entity, no longer exists. “Unit 61” has no legal identity or registered description. How does one transfer a phantom unit from a phantom stand? The order is incapable of implementation. A court should not, and indeed cannot, uphold an order that is impossible to obey. This impossibility, rooted in the very illegality of the transaction, further underscores that the judgment was erroneously granted. In considering rescission, and indeed in the earlier condonation analysis, the prospects of the applicant’s underlying defence are paramount. For the reasons exhaustively detailed above, the applicant’s prospects of success in defending the main claim are sound. Its defence that the underlying agreements are void for illegality is clear, legally sound, and supported by incontrovertible facts and binding authority. When such a compelling defence exists, the scales of justice tilt decisively in favour of granting rescission. The prejudice to the applicant in being held to an order based on a nullity is manifest and grave. The prejudice to the respondents is that they lose the benefit of an order they should never have obtained, one that enforces a right they never lawfully acquired. HH 10-26 HCH 3907/25 This case transcends a mere dispute over late filing or procedural default. It is a case about the limits of judicial power and the duty of the court to uphold the law. The legislature, through section 39 of the Regional Town and Country Planning Act, has drawn a bright line: no agreement for a portion of land without a permit. The courts have consistently reinforced that this line cannot be crossed. The first respondent’s claim, and the default judgment enforcing it, cross that line. To allow the judgment to stand would be for this court to become a participant in the enforcement of an illegal contract. It would mean the court is sanctioning a transaction that the law declares void. That is a path this court cannot and will not take. The law is clear, established, and commands adherence. No legal sophistry can circumvent the fundamental principle that an agreement in violation of a peremptory statutory provision is a nullity. In the result, and for the comprehensive reasons set out above, the following order is made: 1. The application for condonation for the late filing of the application for rescission of judgment is granted. 2. The default judgment granted by this court on 1 February 2023 under Case No. HCH 8466/22 is hereby rescinded and set aside. 3. The applicant is granted leave to file its notice of opposition in Case No. HCH 8466/22 within ten (10) days of the date of this order. 4. The first and second Respondents shall pay costs of suit jointly and severally, the one paying the other to be absolved. WAMAMBO J:…………………………………… Rubaya and Chatambudza, applicant’s legal practitioners Mlotshwa Solicitors, first respondent’s legal practitioners Wintertons, second respondent’s legal practitioners