Masuku & Anor v Mtetwa & Anor (HC 3376 of 2014) [2015] ZWHHC 288 (19 March 2015)

1 HH 288-15 HC 3376/14 CLAUDIUS MASUKU and IGNATIUS PAMIRE versus STANLEY MTETWA and THE REGISTRAR OF DEED HIGH COURT OF ZIMBABWE BERE J HARARE, 20 March, 2015 Opposed application A Masango, for the applicants B Mugomeza, for the 1st respondent BERE J: The facts which are common cause are that on 22 April 2003 the now first respondent obtained a provisional order which was then sat down for either confirmation or discharge in this court on 18th March 2014 before my sister Judge Matandamoyo. All the parties and their respective lawyers appeared at this Court on the day hearing to argue the matter. There is agreement that on the day of the hearing the parties legal practitioners made an effort to communicate with each other and also with the judge’s clerk in order to arrange for the hearing of this matter. There was clearly breakdown in communication amongst the parties legal practitioners with the result that the matter ended up being heard in the absence of the two applicants and their counsel. The result was a default judgement which was granted in favour of the respondent. There is nothing that suggests that the applicants and their counsel deliberately or wilfully defaulted. If anything both the founding papers and even the opposing papers show that the applicants demonstrated a determination to argue their matter. The respondent in his notice of opposition has acknowledged the reasonableness of the explanation given by the applicants but sought to oppose the application for rescission on the grounds that the applicants have no bona fide defence at all to the claim on merits. HH 288-15 HC 3376/14 I must emphasise the fact that the courts do not take kindly to those litigants who snatch at judgements and then try to desperately cling to such judgements even in circumstances where the odds are heavily staked against them in conceding to the rescission of such judgements. The case of Founders Building Society v Dalib (Pvt) Ltd and Others1 is one of leading authorities that fcondemns the snatching at judgement. In the main case that is between the parties there is a dispute which centres on the ownership of the property forming the subject matter of the proceedings, which property was transferred into the name of the first applicant. As usual in such cases, the circumstances under which the applicant ended up having the property under his name are hotly disputed with the applicant projecting himself as an innocent purchaser of the property whereas the respondent alleges that there was collusion between the first applicant and the second applicant. It should be noted that although there are these allegations and counter allegations of impropriety by the litigants, title is currently in the hands of the applicant. This is one case which requires that all he litigants should have their day in Court and for these reasons I feel very strongly that rescission of judgement ought not to have been opposed in the first place. I have had to exercise great restraint to avoid ordering the first respondent to pay costs for this application. Consequently, rescission of judgement is granted with costs being costs in the cause. Musunga & Associates, applicant’s legal practitioners Mugomeza & Mazhindu, 1st respondent’s legal practitioners 1 1998 (1) ZLR 526