Madondo and Another v Makonas Mining Syndicate and Others (HCH 14/26; HCH 2720/26) [2026] ZWHHC 592 (5 August 2026)

1 HH 587-26 HCH 2720/26 REF CASE NO. HCH 14/26 TONGESAI MATHEW MADONDO and PATRICK DAFI versus MAKONAS MINING SYNDICATE and THE PROVINCIAL MINING DIRECTOR MASHONALAND EAST N.O. and MINISTER OF MINES AND MINING DEVELOPMENT N.O. and SHERIFF OF ZIMBABWE N.O. HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 29 July and 5 August 2026 Opposed Application for rescission of judgment E Samundombe, for the applicant L Madhuku with him Mr Nyandoro, for the 1st respondent T Kudoma, for the 2nd and 3rd respondents MAMBARA J: [1] This is an application for rescission of the default judgment granted in case number HCH 14/26 on 3 March 2026. The applicants say they were not properly served with summons and only became aware of the order when eviction was being carried out. The record shows that the summons were said to have been served on one Herbert Dzapasi, described as a security officer at the mine, and the applicants say that person is not known to them. The same record also shows that, in the plaintiff’s declaration, the applicants were described as persons known to the plaintiff and located at Gilnokie Farm, Goromonzi. [2] Three points in limine were raised by the first respondent, namely locus standi, mootness and dirty hands. On locus standi, I am satisfied that the points did not carry the day. After an engagement with the court the first respondent’s counsel abandoned the points. The 2 HH 587-26 HCH 2720/26 REF CASE NO. HCH 14/26 applicants are the very parties against whom the default order was entered. They plainly have a direct and substantial interest in its rescission. Zimbabwean authority is clear that preliminary points must serve justice and truly dispose of the matter; they are not ends in themselves. See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S); Chipango and Another v CBZ Bank Limited (235 of 2025) [2025] ZWHHC 235 (31 March 2025). [3] The principles applicable to rescission are settled. The court considers the reasonableness of the explanation for default, the bona fides of the application, and the existence of a bona fide defence carrying some prospects of success. See Stockil v Griffiths 1992 (1) ZLR 172 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Chihwai Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S); Deweras Farm (Pvt) Ltd & Others v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S); Dr Mangezi v Dr Kasu (132 of 2024) [2024] ZWHHC 132 (27 March 2024). These factors are considered together, not in isolation. Du Preez v Hughes NO 1957 R & N 706 (SR) remains apposite on that point. [4] In this matter, the applicants’ explanation for default cannot be dismissed out of hand. The complaint goes to service itself. The service in issue was not personal service upon either applicant. It was service on an alleged security officer whose connection with the applicants is denied. At the same time, the declaration itself suggests that the first respondent knew who the applicants were and where they operated. In my view, that is a serious issue which ought not to be brushed aside in a matter that ended in eviction. [5] I am also satisfied that the application was brought bona fide. The chronology in the record supports the applicants’ position that they moved after learning of the order during the eviction process. The application was then filed under HCH 2720/26 and seeks leave to defend the action. This is not the conduct of litigants content to sleep on their rights. Under the current Zimbabwean rescission jurisprudence, a court should be slow to deny a hearing where the complaint is that service was defective and the dispute remains triable. See Nhowe and Anor v Gondo and Another (221 of 2025) [2025] ZWHHC 221 (27 March 2025). [6] As to prospects of success, I need say no more than that there are plainly triable issues. They include whether service on Herbert Dzapasi was proper service, whether the sheriff was given proper directions in circumstances where the applicants were allegedly known and locatable, and what effect the mining documentation and the Provincial Mining 3 HH 587-26 HCH 2720/26 REF CASE NO. HCH 14/26 Director’s report may ultimately have on the parties’ competing claims. Those are not issues that should be foreclosed by technical objections. They require proper ventilation. [7] In the result it is ordered as follows; 1. The default judgment entered under HCH 14/26 on 3 March 2026 is hereby rescinded and set aside. 2. The applicants are granted leave to file their appearance to defend in HCH 14/26 within five days of this order. 3. Costs shall be in the cause. MAMBARA J………………………………………… Samudombe & Partners, Applicants’ Legal Practitioners Hamunakwadi & Nyandoro, First Respondent’s Legal Practitioners Civil Division, Second & Third Respondents’ Legal Practitioners