No S.C. 6\03
Appeal No 141\02
PAKETH v YANANAI CHIBONDA
COURT OF ZIMBABWE
JA, ZIYAMBI JA & MALABA JA
FEBRUARY 27, 2003
appellant in person
for the respondent
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants application
for the rescission
of a default judgment granted in favour of the respondent, entitling
the respondent to evict the appellant from
Stand No 2893 in the
suburb of Warren Park 1 in Harare (the property). After
hearing the appellant and counsel for the respondent,
the appeal with costs and indicated that the reasons for that
decision would be given in due course. I now set them
following facts were common cause. At the relevant time the
property, which was occupied by the appellant, was owned by the
appellants brother, Thomas. In February 2000, Thomas and the
respondent (Yananai) concluded a sale agreement in terms
which Thomas sold the property to Yananai. After the purchase price
was paid, the property was transferred to Yananai.
when Yananai required the appellant to vacate the property the
appellant refused to do so, alleging that he had spent
the sum of
$200 000 in the development of the property and that Thomas had
undertaken not to sell the property before refunding that
sum to him.
As a result, Yananai filed a court application in the High Court
seeking the appellants eviction from the property.
the appellant did not oppose the application, a default judgment was
granted in favour of Yananai, on 13 September 2000, and
was later evicted from the property on 6 October 2000.
by what had happened, the appellant filed a court application in the
High Court in September 2001 seeking an order rescinding
judgment. That application was dismissed with costs in April 2002.
Dissatisfied with the outcome of the application,
appealed to this Court.
the application for the rescission of the default judgment the
appellant explained his failure to oppose the application for
eviction, and the delay in filing the application for the rescission
of the default judgment. In addition, he explained why
that he had a good defence to the application for his eviction. He
gave two reasons. The first was that Thomas had
undertaken not to
sell the property before refunding to him the sum of $200 000, and
the second was that the sale was a fraudulent
scheme designed to
deprive Thomass wife of her share of the property upon divorce.
judge in the court a
was prepared to give the appellant the benefit of the doubt in
respect of his failure to oppose the application for the eviction
order, and his failure to make a timeous application for the
rescission of the default judgment. However, the learned judge
the application on the ground that the appellant had not
made out a prima
case for the rescission of the default judgment. He said the
critical point, it appears to me, is whether the applicant is
entitled to raise the above issues as against the respondent.
her opposing affidavit, the respondent challenges the applicants
standing in objecting to the sale between herself and his
when the applicant is not a joint titleholder of the property. I
agree that the applicant cannot seek to enforce an agreement
brother through the respondent. The respondent was not party to the
agreement for the payment of $200 000.00 to the applicant.
applicant cannot also claim or enforce his brothers wifes
rights. Thus, while the applicant may be given the benefit
doubt pertaining to the requirement that the default must not be
wilful for rescission to be considered, he clearly has not
made out a
case to warrant interference with the judgment.
agree. There was, therefore, no basis on which the appellant could
oppose the respondents application for his eviction.
appreciated by the appellants own lawyers at the time who, on 4
October 2000, wrote to the respondents lawyers as
have since advised our client that their private arrangement (for
payment of $200 000 to the appellant) cannot be used as a legal
argument to deny your client his rights to vacant possession to this
property. Consequently our client has requested us to plead
yourselves and your client to relocate to the cottage as a tenant to
give him sufficient time to find alternative accommodation.
sincerely apologise to your client for the inconvenience caused.
appellants request for permission to move to the cottage was
rejected. However, considering the contents of the letter
above, it is surprising that the application for the rescission of
the default judgment was ever made.
the circumstances, the appeal was devoid of merit and was, therefore,
dismissed with costs.
JA: I agree
JA: I agree
Nyangulu & Associates,
respondent's legal practitioners