These two matters were heard at the same time for the purposes of convenience.
In the first matter, HC5403/09, the applicant seeks rescission of an order issued by this court on 28 October 2009 in HC4101/09.
In the second matter, HC976/10, the applicants seek an order be found to be in contempt of court and for their committal to prison for such contempt.
The first application, being HC5403/09, will be dealt with first.
The parties are the same as in HC4010/09. In HC4010/09 the applicant, the Gospel of God Church International 1932 sought an order in the following terms:
“It is hereby ordered:
1. That the respondent and its followers are interdicted from using the name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form. (sic)
2. That the respondent and his followers are interdicted from entering Gandanzara Shrine, Rusape in the Manicaland Province.
3. That the respondent and its followers should vacate immediately and forthwith from Number 140 St. Patrick's Road, Hatfield, Harare failure which the Deputy Sheriff is authorized to evict them. (sic)
4. That the operation of this order shall not be suspended from the noting of an appeal by the respondent. (sic)
5. That the respondent pays costs on an attorney and client scale.”
The first respondent therein, Simba Mukambirwa, deposed to an opposing affidavit in which immediately after para 43 thereof, he prays for the dismissal of the application with costs.
Immediately after this prayer, the following heading appears:
“Counter-Application for Peace Order and Interdict”
Paragraph 44 then follows in which the deponent states that he wishes to make a counter application for a peace order and an interdict.
After paragraph 53 appears his prayer for dismissal of the applicant's application and for an order in terms of the draft. The order that he seeks is in the following terms:
“IT IS ORDERED THAT:
1. Respondents be and are hereby declared to have a right to peacefully visit and worship at the shrine.
2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.
3. All church members who recognize Era Tapera as the President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.
4. All the applicant's purported office bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.
5. Each party to meet its own costs.”
The respondents thereafter proceeded to cause the counter application to be set down on the unopposed roll on the basis that the applicant had not filed any opposing papers to the counter-application and was therefore barred.
The matter was set down for 28 October 2009, and, on that date, an order was issued by this court as prayed for in the counter application in the terms already quoted immediately above.
It is this order whose rescission the applicant now seeks.
The main contention, on the part of the applicant, is that the default judgment in favour of the respondents was granted in error as the purported counter-application was fatally defective and that this is therefore a proper matter for the court to rescind its order in terms of Rule 449.
It is permissible for a respondent to a court application to file a counter application. This is so because Rule 229(a) provides:
“(1) Where a respondent fills a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.”…,.
Sub rule (2) of the same Rule, further provides:
“(2) This order shall apply, mutatis mutandis, to a counter application under sub rule (1) as though it were a court or a chamber application, as the case may be, and, subject to sub rule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.”…,.
In terms of sub-rule (1), as quoted above, the counter-application ought to have been made in the form of a court application.
Rule 230 requires a court application to be in Form No.29 which shall be supported by one or more affidavits setting out the facts upon which the applicant relies.
The purported counter application did not meet or satisfy the requirements stipulated by the Rules.
There was no compliance with the Rules.
There was thus no valid counter-application before the court and the order sought in the purported counter application ought not to have been granted.
Had the purported counter application been dealt with at the same time as the principal application, as stipulated in sub-rule (2), this non-compliance with the Rules would, in all probability, have been exposed or bought to the court's attention by the applicant's legal practitioner.
But, as it turned out, the applicants were unaware of the date set for the hearing of the purported counter-application.
For the above reasons, the application for rescission of the order granted on 28 October 2009, in HC4101/09, must succeed.
