A
default judgment was issued by this court on 8 July 2010. Its terms were as
follows:-
“It
is ordered that:-
(1)
It be and is hereby confirmed that the plaintiffs have, in terms of section 4
of the Prescription Act, Chapter 8:11, acquired, by prescription, the undivided
portion of the land bounded by Regina Mundi Secondary School to the north,
Christmas Gift Extension to the east, Harare Road to the west and Grays Road,
to the south – measuring approximately 229 hectares and constituting about 15%
of the total land area of the Remainder of New Christmas Gift situate in the
district of Gwelo held by defendant under Deed of Transfer number 820/1951
dated 12th June 1951.
(2)
The defendant be and is hereby ordered and directed to take all the steps
necessary to formally subdivide the said portion of land as an individual unit
from the Remainder of New Christmas Gift, in accordance with the provisions of
the Regional, Town and Country Planning Act Chapter 29:12], and of the Land
Survey Act [Chapter 20:12] pertaining to the subdivision of land, within (30) days
of the date of this order.
(3)
The defendant be and is hereby ordered and directed to transfer to the
plaintiffs the sub-divided unit of land in terms of the Deeds Registries Act [Chapter
20:05] upon the completion of the formal subdivision.
(4)
The costs of this suit be borne by defendant.”
The
eight (8) respondents were plaintiffs in the above matter which was case number
HC1985/09.
It
admits of no doubt that service of summons in that matter was not properly
effected. Summons was served at 100 Seke Road Graniteside, Harare instead of 7
Allan Wilson Avenue, Belgravia, Harare.
For
this and other reasons, the defendant, who is the applicant in this matter,
filed an application for the rescission of the default judgment and
simultaneously filed an urgent chamber application seeking an order in these
terms:-
“It
is hereby ordered that:-
1.
Pending the finalization of the application for rescission of the judgment
granted in case number HC1985/09 to be instituted by the applicant against
inter alia:-
JAMES
KIYELA MOYO MAFOHLA
LIKOBA
MAKASENGA a.k.a. RACOBA MAKASHINGA
HARUBVI
MBEDZI
ALOUISA
MUKARATI
POTE
STEPHEN CHAMBOKO
PATRICK
DZIVA
THOMAS
MUNANGA
ONESIMO
MUZANAGO
The
above respondents being the first to the eighth herein. Such respondents be and
are hereby interdicted from transferring, alienating, or in any way disposing
or dealing, or attempting to transfer alienate, or dispose certain piece of
land measuring approximately 229 hectares being 15% of the total land area of
the remainder of New Christmas Gift situate in the District of Gweru, held by
Christmas Gift (Pvt) Limited under Deed of Transfer number 820/1951 dated 12
June 1951.
2.
Pending the finalization of an application for rescission of the order granted
in case number HC1985/09, the applicant's obligations in terms of paragraphs 2
and 3 of the aforesaid order granted in case number HC1985/09 are hereby
suspended.”
The
above order, if granted, does not seem to be prejudicial to the respondents at
all. A perusal of the application for rescission clearly reveals that there is
a need for the parties to argue it before the respondents enforce the terms of
the order granted in case number HC1985/09.
In the result, I would grant the provisional
order in terms of the above draft.
