SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, GARWE JA & OMERJEE AJA
HARARE, SEPTEMBER 3, 2012 & SEPTEMBER 26, 2013
T Mpofu, for the appellant
Respondent in person
GARWE JA: The appellant in this case applied before the High Court for an order declaring one January Tauro, Elizabeth Tauro (the current respondent) and Fransisco Tauro to be in contempt of court and as a consequence that they be committed to prison until such time as they would have purged their contempt. The court a quo was of the view that the default judgment that formed the basis of the order for the ejectment of the respondents had been made in error. Consequently the court determined that this was a proper case for the setting aside of the default judgment and the order of ejectment issued consequent thereto. It is against that order that the appellant has now appealed to this Court.
In October 1999, the appellant entered into an agreement of sale for the purchase of Stand Number 2198 Chinamano/Maseko, Epworth for a specified sum of money. The agreement of sale read:
“I, Francisco Tauro 63-649379 E63 have sold my stand 2198 B Epworth Maseko to Austin Munyimi (68-012753 E68) for $17 000.”
The agreement was signed by both Fransico Tauro and the appellant. January Tauro and two other persons signed as witnesses to the sale transcation.
On 8 November 2004, the appellant issued summons against January Tauro and the Epworth Local Board seeking an order compelling January Tauro to cede his rights and interest in the stand in question and for the Local Board to approve the cession. January Tauro did not defend the action. As a result, the appellant applied for a default judgment which was then granted on 13 July 2005. This is the default judgment that forms the subject of this appeal. In November 2006, the stand was ceded to the appellant. Following the grant of the default judgment the appellant applied for the eviction of January Tauro and all those claiming rights through him. On 30 October 2008, January Tauro and other persons residing on the stand in question were evicted and vacant possession given to the appellant. However, almost immediately thereafter, the current respondent and others made their way back into the house as a result of which the appellant filed an application for an order declaring the respondents to be in contempt of court and for them to be sent to prison until they purged their contempt.