Wilson Asher v Andre Tasker (2 of 2026) [2025] ZWBHC 206 (31 December 2025)

1 HB 02/26 HCBC 896/25 STANFORD WILSON ASHER Versus BELOVED DHLAKAMA AND MICHAEL ANDRE TASKER IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 13 NOVEMBER & 31 DECEMBER 2025 D Kossam, for the applicant B Mhandire, for the first and second respondent Chamber Application NDUNA J: This matter arises from a dispute concerning occupation, ownership, and eviction from immovable property situated in Trenance, Bulawayo, being the Remainder of Subdivision 16 of Subdivision 16 of Trenance and Subdivision B of Subdivision 16 of Subdivision 16 of Trenance. The dispute is between a long-term occupier of the land and the duly appointed executors of two deceased estates in which the property vests. FACTUAL BACKGROUND The Applicant, Mr Stanford Wilson Asher, has been in occupation of the property for approximately thirty-eight to thirty-nine years. His occupation has been open, continuous, and undisturbed over that period. The Applicant contends that his occupation was not unlawful but was premised on an understanding reached with the late Patricia Christine Tasker during her lifetime. According to the Applicant, the late Patricia Tasker promised to allocate him a portion of the land in recognition of his long-term residence and his role in maintaining and safeguarding the property. Acting on that understanding, the Applicant avers that he assumed exclusive responsibility for the payment of municipal rates, utilities, and general maintenance of the HB 02/26 HCBC 896/25 property for several decades, without contribution from the registered owners or, later, from their estates. Following the deaths of John Napier Kalshoven and Patricia Christine Tasker, the property became an asset administered under their respective estates. The 1st Respondent was appointed Executor Dative of the Estate Late John Napier Kalshoven, while the 2nd Respondent was appointed Executor Dative of the Estate Late Patricia Christine Tasker. In their representative capacities, the Respondents took the position that the Applicant had no lawful right to remain in occupation of the property and that his continued presence constituted unlawful occupation of estate property. On that basis, they instituted eviction proceedings in the High Court. Those eviction proceedings were brought under case number HCBC 545/24. The matter proceeded in the absence of an appearance to defend by the Applicant, resulting in a default judgment for eviction being granted on 3 October 2024. The Applicant’s explanation for the default is that although summons were served at the offices of his legal practitioners, service occurred at lunchtime and the documents were inadvertently misplaced after slipping under a carpet at the reception area. As a consequence, the Applicant contends that his legal practitioners did not become aware of the summons timeously, leading to the failure to enter an appearance to defend. Upon becoming aware of the default judgment in HCBC 545/24, the Applicant took steps to challenge it. He initially filed an application to uplift the bar for the late filing of an appearance to defend under case number HCBC 851/24, which application was subsequently withdrawn. Thereafter, the Applicant filed an application for rescission of the default judgment under case number HCBC 1220/24. The rescission application in HCBC 1220/24 was heard on 7 May 2025. The court did not determine the merits of the application but issued an order removing the matter from the roll. The order directed that, upon the Applicant reapplying for a set down date, the matter be placed before the court that had granted the original default judgment in HCBC 545/24. No order as to costs was made. This order is attached to the record as Annexure A. The effect of the order was HB 02/26 HCBC 896/25 that the rescission application remained extant but required proactive steps by the Applicant to secure a further set down. No further procedural steps were taken by the Applicant to reapply for a set down date following the order of 7 May 2025. The Applicant’s explanation is that his legal team understood the order to amount to an administrative referral of the matter back to the court that had granted the default judgment, and that the allocation of a hearing date would follow in the ordinary course through the court registry. On that understanding, the Applicant awaited further communication from the court and did not actively pursue a set down. As a result of this inactivity, the Registrar of the High Court dismissed the rescission application on 8 August 2025 in terms of Rule 66(3) of the High Court Rules, deeming it abandoned for want of prosecution after the lapse of three months. This dismissal is reflected in Annexure B to the record. The effect of the dismissal was that the default judgment granted in HCBC 545/24 remained operative and enforceable. Following the dismissal of HCBC 1220/24, the Applicant instituted the present chamber application for reinstatement under case number HCBC 896/25. In this application, the Applicant seeks an order reinstating the rescission application, contending that the failure to prosecute the matter was not the result of willful default or deliberate disregard of the court’s order, but rather stemmed from a genuine and reasonable misconception regarding the procedural effect of the order removing the matter from the roll. The Applicant maintains that he was not indolent or negligent, but was awaiting the allocation of a court date when he was informed that the matter had been dismissed by the Registrar. The reinstatement application in HCBC 896/25 was argued during a virtual hearing held on 13 November 2025. The central issue that emerged during that hearing concerned the interpretation of the order issued on 7 May 2025 in HCBC 1220/24, and whether the Applicant’s failure to reapply for set down constituted excusable default or wilful neglect. On behalf of the Applicant, it was submitted that the failure to act timeously arose from a mistaken understanding of the procedural direction given by the court. It was further argued that the Applicant enjoys strong prospects of success in the underlying rescission application, HB 02/26 HCBC 896/25 particularly given that the eviction order in HCBC 545/24 was obtained by default, that courts favour the determination of disputes on their merits, and that the Applicant’s defence raises substantial factual and legal issues. These include the circumstances surrounding service of summons, the Applicant’s nearly four decades of occupation of the property, and his alleged financial contributions, which may found a substantial counterclaim. The Respondents opposed the reinstatement application, contending that the order issued in was clear and unequivocal in placing the responsibility on the Applicant to reapply for a set down date. It was argued that the Applicant’s inaction, despite the availability of the order and communications from the registry, amounted to willful neglect rather than an innocent mistake. The Respondents further challenged the bona fides of the Applicant’s defence on the merits, questioning the credibility of the alleged promise of land, pointing to correspondence in which the Applicant sought to purchase the same land, and asserting that no valid claim had been lodged with the Master of the High Court. They also maintained that service of summons in HCBC 545/24 was proper, having been effected at the Applicant’s legal practitioners’ offices in accordance with prior instructions. In reply, the Applicant disputed the allegation of willful neglect and reiterated that a claim had been lodged with the Master of the High Court. He maintained that the unique factual circumstances of the matter, including his exceptionally long occupation of the property and the procedural history of the case, justify the exercise of the court’s discretion in favour of reinstating the rescission application so that the dispute may be determined on its merits. ISSUE FOR DETERMINATION 1. Whether the Applicant has shown sufficient cause for the reinstatement of the matter. APPLICATION OF THE LAW The requirements of what is considered for a reinstatement of a matter was stated in FBC v Chiwanza SC 31/17 p2 where a decision from MALABA JA (as he then was) was referred to where it was held that: - HB 02/26 HCBC 896/25 “The question for determination is whether the applicant has shown a cause for the re- instatement of the appeal. In considering applications 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 established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the Court and the avoidance of unnecessary delays in the administration of justice.” Degree of Non-Compliance and Explanation The degree of non-compliance in the present matter is not insignificant. The order issued in HCBC 1220/24 was clear and unequivocal. It expressly directed that the matter would only be placed before the court that granted the default judgment upon the Applicant reapplying for a set down date. The responsibility to take that procedural step lay squarely with the Applicant. The explanation advanced by the Applicant, namely that the order was misconstrued as an automatic administrative referral and that the Applicant awaited action from the court registry, points to a misdirection on the part of the legal practitioner. A reasonable legal practitioner ought to have appreciated the import of the order or, at the very least, made inquiries with the court regarding the status of the matter. Nevertheless, I am of the view that this misstep, attributable to the legal practitioner, ought not to be visited upon the Applicant. To deny the Applicant relief solely on account of his legal practitioner’s misunderstanding of the order, in the circumstances of this case, result in injustice. The inquiry does not end with the finding of willful default. It is trite that willfulness, while an important consideration, is not dispositive. The court is enjoined to weigh all relevant factors cumulatively. On the merits, the Applicant’s case presents substantial and compelling considerations. It is not disputed that the Applicant has occupied the property for approximately thirty-eight years. It is further not seriously challenged that during that period the executors of the deceased estates did not attend to, maintain, or administer the property. The Applicant, on the other hand, alleges HB 02/26 HCBC 896/25 and this is not meaningfully controverted that he paid municipal rates and bore the costs of maintaining the property over an extended period. These facts give rise to a prima facie counterclaim for reimbursement of municipal charges and maintenance expenses incurred in preserving estate property. Such a counterclaim is neither frivolous nor speculative. It raises substantial factual and legal issues which cannot be summarily dismissed and which materially affect the justice of granting eviction relief on a purely procedural default. The existence of this counterclaim significantly enhances the Applicant’s prospects of success in the underlying matter. At the very least, it demonstrates that the dispute is not one that can fairly be resolved without a ventilation of the merits. The matter is of considerable importance to the Applicant, who faces eviction from a property he has occupied for nearly four decades. The consequences of refusing reinstatement would be severe and potentially irreversible, particularly where the Applicant alleges financial contributions over many years which have enriched or preserved the estate assets. The reinstatement of the matter will not occasion undue prejudice to the administration of justice especially in light of the claim that the Applicant has. Therefore the application for reinstatement is therefore granted so as to permit the substantive issues between the parties to be determined on their merits. There will be no order as to costs. Liberty Mcijo and Associates, applicant’s legal practitioners Dhlakama B. Attorneys, respondent’s legal practitioners