MATHONSI J: In this matter I granted an order in
favour of the plaintiff and against the Defendant on the 25th
November 2010 in motion court. This followed a default judgment application
made in terms of Rule 58 of the High Court of Zimbabwe Rules, 1971.
The plaintiff instituted
proceedings against the defendant out of this court on the 13th
October 2010. The summons in that matter
was served upon the defendant on the 22nd October 2010 and as no
appearance to defend was entered at the expiration of the dies inducae, the
plaintiff set the matter down unopposed on 25 November 2010 resulting in
default judgment being granted aforesaid.
Unbeknown to me at that time,
and neither of the parties brought this to my attention, on 20 October 2010 my
brother NDOU J, had issued a provisional order in Case No HC 2171/10 the
interim relief of which, was to place the defendant under provisional judicial
management. That order also stayed ''all
actions and proceedings and the execution of all writs, summons and other
processes against the company '' (clause 4 of the interim relief granted.)
I would not want to believe that
the plaintiff knew of the existence of that provisional order when it sought
judgment against the defendant because if it did, it was obligated to bring
that fact to the courts attention on 25 November 2010. On the other hand, the defendant did not
notify the court of the existence of that order either. Whichever way, the order of 25 November 2010
should not have been made and I would like to believe that it came about as a
result of a mistake common to both the court and the plaintiff.
When this was brought to my
attention, I notified the plaintiff's legal practitioners and gave them the
opportunity to address me on the issue.
I have not received any submissions from them.
Rule 449(1)(a) and (c) allows
the court to rescind a judgment or order made under such circumstances. It provides:
'' The court or a judge may, in addition to any
other power it or he may have mero motu
or upon the application of any party affected, correct ,rescind or vary any
judgment or order –
(a) that was erroneously sought or erroneously
granted in the absence of any party affected thereby;
(b) - -
(c) That was granted as a result of a mistake
common to the parties.''
Not only was the order
erroneously sought and erroneously granted, it was also granted as a result of
a mistake as the provisional order of 20 October 2010 was not brought to our
attention. I therefore intend to set
that order side in terms of Rule 449.
Accordingly I make the following
order:
1. That
the default judgment granted on 25 November 2010 be and is hereby rescinded.
2. That there be no order as to costs.
Cheda and Partners, Applicant's Legal Practitioners
Messrs Khumalo &
Company Attorneys, Respondent's Legal
Practitioners
