CHIPEMBE and OTHERS v USHEWOKUNZE HOUSING COOPERATIVE SOCIETY LIMITED and OTHERS (447 of 2025) [2025] ZWHHC 447 (29 July 2025)

1 HH 447-25 CASE NUMBER HCHCIV 2179/24 MISHECK CHIPEMBE and NATASHA HARINEKI and CHAWAPUWA MAKAMBA and TONDERAI RENE and CAROLINE BOBERA and KUFAKUNESU CHIMBODZA and MOSES MUTISI and PERAGIA SITHOLE and BEAUTY KUGONJA and HANDISON CHAWARIRA and VINCENT MANYANYA and TRYMORE MAGAYA and LEONARD NCUBE and EDINGRON CHIWEDA and WONDER NHAMOINESU and ALBERT CHITSUMBA and ARCHIBALD GUKWE and SHARON MUCHERO and EMELDA TAGARISA and ELISTAS NYAMADZAWO and JEMERA MAVEKE and PRIVILEDGE BANDA and NESBERT CHINHEMA and FRANCIS NYAKUTUMBWA and GODKNOWS MAROZVA and HH 447-25 CASE NUMBER HCHCIV 2179/24 MOSES MAVEZERA and PROSPER MAPHOSA and CHARITY NDORO and EDWARD RUSHAMBWA and SMART TEMBO and MARUVA MUDZIMUMWE and THEMA MAVEZERA and SHUVAI MUGOVA and EMMANUEL CHENGETA and TITUS MUTUTI and WILSON GUTUZA and CLEVER MUPATSI and PLASHLWED MAZVIREHWI and CHRISTOPHER MACHUWAIRE and SHYLEEN TARAVA and NANCY MUSAKURA and HAZEL MUPENDA and MAIDEI KALONGA and CHIPO MHAKA versus USHEWOKUNZE HOUSING COOPERATIVE SOCIETY LIMITED and ROPAFADZO ZAVEA HOUSING COOPERATIVE SOCIETY LIMITED and NOAH CHIRARA HIGH COURT OF ZIMBABWE DUBE JP & WAMAMBO J HARARE, 24 October 2024 & 29 July 2025 HH 447-25 Civil Appeal CASE NUMBER HCHCIV 2179/24 J Koto, for the appellants T Muganhiri, for the first and second respondents Third respondent in default DUBE JP: Introduction [1] This appeal arises from a decision of the whole judgment of the Magistrates Court sitting at Harare which determined an application for rescission of judgment in favour of the first and second respondents. Aggrieved, the appellants appeal against the decision. Background Facts [2] The dispute between the parties originated from settlements made on Saturday Retreat Farm, land allocated by the Government of Zimbabwe. The parties are members of cooperatives fighting for control of the land in question. The appellants are members of Chevhu Housing Cooperative, the first respondent is Ushewokunze Housing Cooperative Society Limited and second respondent Ropafadzo Zavea Housing Cooperative Society. The third respondent is Noah Chirara [Chirara], sued in his capacity as the chairperson of Chevhu Housing Cooperative Society. [3] On 13 December 2023, the first and second respondents, [hereinafter referred to as the respondents] issued summons against Chirara and all those claiming occupation through him from Saturday Retreat Farm. The respondents claimed that Chirara and “all those claiming occupation through him’’ are illegal invaders and have not been allocated the said farm which was given to the first respondent by the Government of Zimbabwe through the Ministry of Local Government, Public Works and National Housing to develop. The respondents claimed that subsequent to this, the first respondent allocated and ceded 50 hectares of the land to the second respondent and that sometime in 2000, Chirara and “all those claiming ownership through him”, unlawfully invaded the 50 hectares of land and erected illegal temporary structures thereon. The respondents sought eviction of Chirara and all those claiming occupation through him and removal of illegal structures. [4] The dies induciae for entering appearance to defend having elapsed with no appearance to defend, judgment in default was entered against Chirara and all those claiming occupation of the land through him. All those claiming ownership of the land through Chirara seem to have been identified as the appellants as the messenger of court was instructed to issue warrants of ejectment against the HH 447-25 CASE NUMBER HCHCIV 2179/24 44 appellants on the basis that they are settled on disputed land and are led by Chirara who facilitated their occupation of the land. This prompted the appellants to file an application for rescission of the default judgment in terms of Order 30 r4(1) of the Magistrates Court (Civil) Rules, 2019. Submissions before the court a quo [5] The appellants submitted before the court a quo that they were not in wilful default for the reason that they were not cited and served with the summons for eviction contending that default judgment was improperly granted in their absence entitling them to rescission thereof. The appellants claimed that Chirara was in prison at the time the summons was issued and served contending that the litigation was designed to ensure that no one sees the summons. On the merits, they submitted that the land they occupy belongs to the Government of Zimbabwe and was allocated to them by Chevhu Housing Cooperative Society which in turn had been allocated the land. They denied occupying land allocated to the first respondent. The appellants denied that they occupy the land under Chirara and challenged the second respondent’s standing to evict them from the land. [6] In response, counsel for the respondents Mr Muganhiri submitted that the matter regarding who has the right to occupy the land in dispute was settled in Mutsawashe Zavea v Noah Chirara HC 3273/20, rendering the current matter res judicata. He submitted further that the appellants have dirty hands for the reason that they are in open defiance of the court order issued under HC3273/20 requiring them to restore possession of the land in dispute to second respondent. In addition, that they are in violation of s232 of the Urban Councils Act and the Model Building By-Laws 1977 which prohibits construction of buildings without approval of the local authority. They urged the court to decline to entertain the application. On the merits of the application, they submitted that the appellants failed to prove that the papers relied on by the respondents are forged. They maintained that their paper trail is genuine and shows that they are the rightful owners of the land. The respondents argued that the appellants failed to prove that they have prospects of success in the main matter there being no cogent evidence placed before the court a quo by the appellants disproving that they were associated with Chirara. Findings of the court a quo HH 447-25 CASE NUMBER HCHCIV 2179/24 [7] The court a quo found that the principle of res judicata applies, reasoning that a superior court has already dispensed with the dispute over the piece of land under HC3273/20, wherein Chirara and the appellants were ordered to desist from any construction activities and to restore vacant possession of the land, thereby ruling in favour of the respondents. On violation of the Urban Councils Act and Model Building By-Laws, the court found that the appellants had “not shown who authorised them to commence their construction activities” adding that their occupation of the land is irregular and illegal. It found the appellants’ explanation for the default reasonable based on the reasoning that they had not been served with the summons. The court observed however that it did not matter that the appellants were not cited on the order and served with the summons, finding that the appellants were bound through Chirara, who had allocated them the pieces of land they occupied. The court a quo found further that the appellants did not controvert the illegality of their occupation holding that the respondents had produced a trail of paper evidence in the form of official correspondence and receipts chronicling the transfer of the land to them. It concluded that the appellants had no bona fide defence to the respondent’s claim and dismissed the application for rescission of judgment. [8] Aggrieved by the findings of the court a quo, the appellants filed this appeal based on 6 grounds of appeal seeking the setting aside of the court a quo’s judgment and in its stead, substitution with an order granting the application for rescission of judgment. The respondents challenged the propriety of all of the appellants’ grounds of appeal on the basis that they are not clear, concise and do not comply with the High Court Rules, 2021 and ought to be struck off resulting in the appellants abandoning grounds of appeal numbers 3 and 4c. Having examined the numerous grounds of appeal, we are satisfied that most of the grounds did not allege any misdirection on the part of the court a quo and are not clear and concise. We are satisfied however that grounds of appeal numbers 3 (b), 4 (a) and 5 are clear and concise enough to enable the court to understand the challenges raised. Appellants’ submissions in this court [9] The appellants attacked the findings of the court a quo on the basis firstly that it did not determine the preliminary point on dirty hands. They submitted in addition that the court a quo erred in finding that the matter was res judicata when the appellants were not involved in the matter previously dealt with by the High Court. On the merits of the application for rescission of judgment, Mr Koto for the appellants submitted that the court a quo erred in dismissing the appellants’ application for rescission of judgment considering that the summons for eviction is defective as the respondents in paragraph 2 of their particulars pleaded spoliation and not eviction. He contended that the respondents alluded to a deprivation of possession and that the respondents were in HH 447-25 CASE NUMBER HCHCIV 2179/24 undisturbed possession of the land instead of pleading the requirements of a rei vindicatio in order to get an eviction order. The appellants also challenged attachment of a draft order, a map and a letter to the summons which course they attacked on the basis that it is irregular as the documents constitute evidence. [10] On the merits of the application, the appellants submitted that they rightly occupy the portion they are settled on and that the first respondent could not allocate 50 hectares of land that it did not possess, as it had only received 4,100 residential stands. They challenged the documents relied on by the respondents to prove their entitlement to the disputed land on the basis that they are forged arguing that the court a quo erred and misdirected itself in finding in favour of the respondents. Counsel argued that this defense on its own was sufficient to have the eviction claim dismissed, as the respondents could not have obtained rights through fraudulent and forged documents. Furthermore, the appellants challenged the propriety of the default order on the basis that it affects unknown persons not named in it arguing that it applies to Chirara alone. They argued that rescission of the order would afford them an opportunity to test the order. [11] Per contra, the respondents submitted that the application for rescission of judgment was not dismissed on the basis that it was res judicata, the court grounding its determination on the lack of prospects of success on the merits. They maintained that the court a quo did not err and misdirect itself contending that the appellants have not shown good and sufficient cause for rescission of judgment having failed to show the bona fides of the application and a lawful right to occupy the land in dispute. They insisted that the first respondent was offered the land by Government which it in turn ceded to the second respondent thereby entitling the respondents to protection of the law and that therefore the appellants have no lawful authority to occupy the said land entitling them to seek their eviction. They argued that the appellants failed to show that they were not associated with the third respondent. There was heated debate over the propriety of evicting a person not cited in a summons for eviction and ordering demolition of his dwelling. The respondents urged the court to dismiss the appeal. Three main issues emerge for determination being, whether the matter is res judicata, whether the court a quo failed to determine the point on dirty hands and whether the appellants have a bona fide defence to the merits of the matter, entitling them to rescission of the default judgment. Analysis HH 447-25 CASE NUMBER HCHCIV 2179/24 [12] This decision suffers from procedural irregularities, there being two disturbing features concerning the procedure adopted by the court a quo. What exercised our minds is the approach the court a quo took after having allowed the respondents’ preliminary points. A court dealing with a preliminary point should always be mindful of what a preliminary point is. Where a preliminary point is properly and successfully raised, it is capable of resolving a matter without the need to go into its merits . Procedurally, a preliminary point must be determined before the matter is decided on the merits and a ruling made. In Heywood Investments (Pvt) Ltd v Zakeyo 2013 (2) ZLR (S) at p 20 E-G the court dealt with a case where there was a failure to determine a preliminary point and remarked as follows: “…..it seems to me that the court a quo failed to appreciate the legal issue raised by the point in limine. It is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application.’’ See also GMB v Muchero 2008 (1) ZLR 216 (S). [13] A failure to determine and rule on a preliminary point amounts to a misdirection giving rise to an incurable procedural irregularity which is fatal especially in circumstances where the preliminary point if upheld, would have had the effect of disposing of the matter without the need to go into the merits of the matter. The failure to rule on the point on dirty hands is a serious misdirection going to the root of these proceedings and is a gross irregularity which entitles this court to interfere with the court a quo ’s decision and set it aside, see Gwaradzimba v C. J. Petron & COY (Pty) Ltd 2016 (1) ZLR S: S v Makawa & Anor 1991 (1) ZLR 142. [14] The plea of res judicata and its requirements are well settled and were well enunciated in Toro v Vodge Investments (Pvt) Ltd & Ors SC15-17, as follows: “For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or on fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.” A litigant seeking to rely on the plea of res judicata must show that the action is between the same parties. The two actions must concern the same subject matter and be founded upon the same cause of action and must have been determined on its merits. See also Flowerdale Investments (Private) Limited & Anor v Bernard Construction (Private) Limited & 2 Others, 2009 (1) ZLR 110 (S); Mvaami (Pvt) Ltd v Standard Finance Ltd 1977 (1) 861 (R); Banda & Ors v Zisco 1999 (1) ZLR 340 (SC). HH 447-25 CASE NUMBER HCHCIV 2179/24 [15] Res judicata is a principle that prevents a matter from being relitigated where it has already been adjudicated upon. The import of the plea of res judicata was dealt with in Wolfenden v Jackson 1985 (2) ZLR 313 (S) at 316 B-C stated as follows: “the exceptio res judicata is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even if erroneous. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies are not permitted to dispute its correctness.” What this entails is that once upheld, the plea of res judicata has the effect of disposing of the matter thereby dispensing with the need to delve into its merits. A court that has upheld a preliminary point which raises the defence of res judicata has no luxury of proceeding with the matter on its merits. Dealing with the merits of an application after a finding of res judicata amounts to a gross procedural irregularity. [16] The court a quo overlooked the significant finding of res judicata and the impact such a finding is supposed to have on the outcome of the proceedings and went on to decide the application on its merits and in the end dismissing it. The findings of the court a quo of res judicata once endorsed by the court, should have had the effect of disposing of the matter without the need for the court to consider the merits of the application for rescission of judgment. There is considerable confusion surrounding the court’s choice to address the merits of the application despite findings of res judicata as this contradicts established legal principles and raises debate regarding the rationale behind this approach. [17] Our second observation relates to the court a quo’s approach to the issue of dirty hands. The court a quo ruled that the appellants failed to show who authorised them to commence their construction activities. What the court did not do is to make a specific finding that the appellants have dirty hands and deal with the implications thereof. The omission to decisively deal with the issue of dirty hands further compounds the decision of the court a quo and leads to uncertainty regarding the court’s reasoning . It is trite that a litigant with dirty hands has no right of audience and cannot be heard by a court making such a finding. See CFI Retail (Pvt) Ltd v Manyika 2016 (1) ZLR 122 (S); ANZ Ltd v Minister of State for Information and Publicity in the President’s Office SC 07/03. [18] Having upheld the preliminary point on res judicata, the court needed to make it clear why it did not deal with the issue of dirty hands in view of the decision to deal with the matter on the merits. If the matter was not disposable on the basis of the plea of res judicata judging by the approach the HH 447-25 CASE NUMBER HCHCIV 2179/24 court took, it is inexplicable why the court omitted to deal with the issue of dirty hands. Whether the court a quo was obliged to deal with the issue of dirty hands depended on the outcome of the point related to res judicata. A court seized with a preliminary point is obliged to determine it before delving into the merits of the matter unless the determination of the point is rendered nugatory where the matter is disposable on another point. We are left perplexed as to why the court a quo adopted the approach it took. [19] The two procedural irregularities attendant to these proceedings call for a review of the court a quo’s decision. It was a gross irregularity for the trial court to proceed and deal with the merits of the rescission application when it had upheld the point on res judicata and a fundamental irregularity for that matter that went to the root of the entire proceedings warranting this court to interfere with the proceedings. The failure to determine the point on dirty hands amounts to a serious procedural flaw which is fatal to these proceedings. [20] Whilst the appellants did not impugn the approach taken by the court regarding the manner in which the court proceeded after upholding the point on res judicata, this court has the power of review over matters coming to it on appeal. The High Court has power of review over matters coming before it for adjudication by way of appeal, any proceedings for that matter or whenever it comes to its notice that an irregularity has occurred in any proceedings or in the making of a decision and it is felt that such an irregularity should not be allowed to stand. See Zimasco (Pvt)Ltd v Marikano 2014 (1) ZLR 1 (S), where the Supreme Court echoed the same sentiments in a matter involving a gross procedural irregularity. This power stems from s26 of the High Court Act [Chapter 7:06], which empowers the court to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities in Zimbabwe. Section 27 lays down the grounds upon which proceedings or decisions may be reviewed, one of which is gross irregularity. In terms of s 28, the court in a civil matter may on review “set aside or correct the proceedings or decisions.” Disposition [21] In light of these shortcomings, this appeal cannot be decided on the merits. The court a quo’s decision to proceed with the matter despite findings upholding the preliminary points is irregular and results in a fundamentally flawed decision. The process followed by the court strays from recognized its decision, the integrity of the judicial process as a whole and amounts to a failure of justice. The course adopted by the court a quo in its approach to the preliminary points constitutes a gross irregularity necessitating the setting aside of the court a quo’s decision. The matter is remitted to the HH 447-25 CASE NUMBER HCHCIV 2179/24 court a quo for a hearing de novo using the correct procedure, albeit before a different magistrate. Accordingly, it is ordered as follows: 1. The appeal is upheld with costs. 2. The proceedings of the court a quo be and are hereby set aside. 3. The application for rescission of judgment is remitted to the court a quo to be determined by a different Magistrate. DUBE JP………………………………………………… WAMAMBO J………………………………….. I AGREE Koto & Company, appellants' Legal Practitioners Magadure Legal Practice, 1st and 2nd Respondents' Legal Practitioners