Final Orders re: Nature, Amendment, Variation, Rescission iro Common Law Rescission & Consideration of Restitutio In Integrum

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...

Background

Prior to his demise, on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC1589/13 wherein the court granted a declaratory order in favour of the fourth respondent.

In his application before the court a quo, the appellant sought the rescission of that order on the ground that it had been obtained through fraud, and, alternatively, that it had been granted in error.

In Case No. HC1589/13, the court dismissed the claims over the two companies by the first respondent (Gideon Hwemende), who had purported to appoint the fifth to the tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) as directors in the companies in order to protect his own interests.

The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies.

It found that the fourth respondent (Terrence Cobden Rhodes) was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent (Terrence Cobden Rhodes), as trustee, had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000, in turn, accrued to the Trust as the shareholder of the companies.

In granting its order, the court imposed the condition that the fourth respondent (Terrence Rhodes) should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000 that was deposited with him.

In the application a quo, the appellant adduced the supporting affidavit of the deceased's widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent (Terrence Rhodes) on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules, 1971. The court a quo agreed and held that the affidavit was not admissible as it had not been properly authenticated.

More importantly, the fourth respondent (Terrence Rhodes) also took the point in limine that the applicant did not have locus standi to bring the application because he was only the curator bonis of the deceased estate.

The appellant had initially deposed, in his founding affidavit, that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as curator bonis rather than his Letters of Administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the Letters of Administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the Letters of Administration were issued on 26 February 2014.

High Court Judgment

As regards the appellant's locus standi, the court a quo found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC1589/13 in terms of section 22(2) of the Administration of Estates Act [Chapter 6:01]. He would therefore not have had locus standi to seek the rescission of the order granted in that matter. That rendered his actions in casu nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to locus standi through the production of an authorising document in his answering affidavit.

The court accordingly held that his case must fail due to lack of legal standing.

Having found that the application should be dismissed for want of locus standi, the court nevertheless proceeded to address the merits of the matter.

As regards the alleged fraud, the court observed that this was not a ground for setting aside the earlier judgment under Rule 449(1)(a) of the High Court Rules, 1971. The court found that there was clearly no error committed, as envisaged in the Rules, as the earlier judgment had directed that the fourth respondent (Terence Rhodes) was to furnish proof that the deceased had transferred the shares in the two companies to the Trust.

With reference to the allegation that the fourth respondent (Terrence Rhodes) had fraudulently claimed that the deceased had transferred the shares, the court found that the appellant did not produce any authentic documents to counter the alleged fraudulent documents. No documentary evidence was adduced to prove what the appellant alleged to be the correct shareholding in the two companies. The appellant simply attacked the authenticity of the official documents produced by the fourth respondent (Terrence Rhodes), which showed that the Trust owned the entire shareholding in the companies, without any proof to controvert the fourth respondent's evidence.

Consequently, the earlier judgment must stand because it had not been shown that the court had relied on fraudulent evidence in assessing the facts before it.

In the event, the court a quo held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.

Grounds of appeal and relief sought

There are three grounds of appeal in this matter:

(i)...,.

(ii)...,.

(iii) The third ground is that the court erred in holding that no basis had been established for seeking rescission on the ground of fraud, despite the absence of proof of the donation or transfer of the shares in the company to the Trust.

The relief sought by the appellant is that the appeal be allowed and that the order of the court a quo be set aside and substituted with an order dismissing the point in limine relating to authority and granting the application for rescission with costs, or, alternatively, striking the matter off the roll for want of proof of authority....,.

With reference to the alternative argument premised on supposed error in the earlier proceedings, counsel for the fourth respondent quite correctly submitted that the third ground of appeal only related to the alleged fraud.

There was no appeal founded on error within the scope of Rule 449(1) of the High Court Rules.

In his response, counsel for the appellant agreed that the first ground of appeal was irrelevant. He also conceded that the third ground of appeal was confined to the allegations of fraud and that sub-ground (c) of the third ground was meaningless and was therefore to be abandoned.

In light of these concessions by both counsel on what are essentially technical issues, which concessions were properly made so as to obviate the trappings of formalism, the Court remains seized with the critical and substantive nub of this appeal: and that is whether or not the appellant had established an adequate basis for seeking the rescission of the earlier judgment on the ground that it had been obtained by fraud.

Rescission on the ground of fraud

It is trite that he who alleges any positive fact carries the burden of proving that fact. Put differently, a party who makes a positive allegation bears the onus of proving such allegation: see Astra Industries Ltd v Chamburuka SC258/11, SC27-12; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In the particular context of an application for the rescission of a judgment at common law, it is settled that the party seeking rescission must demonstrate sufficient cause for the relief sought to be granted. A judgment can only be rescinded under the common law on one of the grounds upon which restitutio in integrum would be granted, such as fraud or some other just cause, including justus error: see Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS).

It is also well established that an Appellate Court will not readily interfere with findings of fact made by a lower court: see Beckford v Beckford 2009 (1) ZLR 271 (S).

The Appellate Court will only interfere with such findings in very limited circumstances, for instance, where the lower court has misdirected itself by failing to appreciate the facts at all or by making findings of fact that are contrary to the evidence presented: see Reserve Bank of Zimbabwe v Corrine Granger SC34-01.

Counsel for the appellant refers to the condition imposed by the High Court in the earlier judgment requiring the fourth respondent (Terrence Rhodes) to lodge the Trust Deed in question. What this Deed shows is that the properties concerned were never transferred to the Trust by the deceased. This, so he submits, is where there was fraudulent misrepresentation by the fourth respondent.

Counsel for the fourth respondent (Terrence Rhodes) refers to the relevant share certificates and register of share allotments and transfers. He argues that the first two shares were probably issued in anticipation of the Trust being created two months later. The remaining bulk of the shares were issued to the Trust a year later. This is the reason why the list of Trust assets only includes the assets of the Trust when it was created and does not cover the assets acquired by the Trust thereafter.

Counsel for the fourth respondent further submits that the appellant never produced any evidence, including the forensic audit that he allegedly carried out, to prove that the Trust was a sham. The onus was on the appellant to make out his case and he did not produce any document or affidavit to prove that there was any fraud.

Counsel for the appellant retorts that not all the relevant share certificates have been produced by the fourth respondent. The duty of the appellant, as executor dative of the estate, is to ensure that all the relevant documents and assets are accounted for. The facts placed before the court in the first case were not correct. There was clear misrepresentation and the court, in that case, would not have granted the order in favour of the fourth respondent had it been made aware of all the relevant facts.

It is pertinent, at this juncture, to capture the two critical components of the order granted by the court in the first case:

(i) Firstly, it was declared that the fourth respondent “as claimant in his capacity as Trustee of Phoenix Trust in whom [sic] the companies are held is the lawful shareholder of the two companies.”

(ii) Secondly, it was ordered that the fourth respondent “upon lodging with this court a valid Trust document effected by the deceased during his life time transferring the properties to the Trust” would become entitled to the sum of US$70,000 deposited with the Registrar.

The crucial instrument in casu is the Notarial Deed of Donation and Trust, executed by its signatories on 13 April 1988.

It was signed by the deceased, B. J. Rhodes, as the donor and as trustee and also as a beneficiary of the Trust. The deceased appointed himself and two others, namely, N. J. MacDonald and N.C. Ralston, as trustees. The beneficiaries, apart from the deceased himself, were his children and their lawful issue.

In the event of the deceased ceasing to be a trustee for any reason, T. C. Rhodes, the fourth respondent, was to succeed him as a trustee.

In terms of clause 4 of the Trust Deed, the settlement and donation took effect on the date of execution of the Deed.

By virtue of clauses 3 and 5, the Trust Fund was constituted by the assets set forth in the Schedule, as well as any further assets or shares or income accrued or received by the Fund from time to time, including any further assets donated by the deceased before his demise.

As at 13 April 1988, the Schedule of Assets listed two items, i.e. a loan account of $110,720=93 in Brian Rhodes (Pvt) Ltd and a loan account of $41,052=93 in Karoi Properties (Pvt) Ltd.

The company known as Beverly East Properties (Pvt) Ltd was not mentioned in the Schedule.

Turning to the relevant share certificates, the record shows two certificates executed on 1 February 1988:

The first certificate (No.3) states that Phoenix Trust is the registered proprietor of one fully paid share (No. 1).

The second certificate (No.4) states that B. J. Rhodes, as nominee for the Trust, is the registered proprietor of another fully paid share (No.2).

Both certificates relate to the shareholding in Beverly East Properties (Pvt) Ltd.

The third certificate (No.5), also relating to the shareholding in the same company, states that Phoenix Trust is the registered proprietor of 499,998 shares (Nos.3 to 500,000 inclusive).

It is common cause that the first two certificates were executed before the Trust was created, on 13 April 1988, while the third certificate was executed thereafter, on 20 July 1989.

A further relevant document is a special resolution of the company, passed on 14 April 1988 and confirmed on 21 April 1988, increasing the nominal share capital of the company from $32,000 to $500,000 by the addition of 468,000 shares, to rank pari passu with the existing shares.

The resolution was passed by B. J. Rhodes (the deceased) and N. J. MacDonald and signed by the former as Chairman of the company.

The Form CR14, signed by the Secretary of the company on 29 March 1988, shows that the abovenamed two individuals were Directors of the company, appointed to those positions on 1 February 1988.

The Form CR2, i.e. return of allotments, filed on 20 July 1989, shows that there were two (2) shares previously allotted and 499,998 shares freshly allotted to Phoenix Trust.

This is confirmed by the minutes of a Directors meeting, held on 20 July 1989 and attended by the same two directors, B. J. Rhodes and N. J. MacDonald, where it was resolved to allot 499,998 shares to Phoenix Trust.

The above status of directorships and total shareholding in the company is further confirmed by various company returns filed between 14 July 1989 and 17 April 1997.

Lastly, there is the company's register of allotments and transfers.

This shows that two individuals, N. C. Ralston and C. A. Mollatt, the original holders of the first two shares (Nos.1 and 2), held those shares by virtue of the founding share certificates (Nos.1 and 2) executed on 25 January 1988.

These two shares were then transferred to Phoenix Trust and B. J. Rhodes, as nominee for the Trust, under new share certificates (Nos. 3 and 4) executed on 1 February 1988.

The register also reflects the allotment of 499,998 shares (Nos.3 to 500,000 inclusive) to Phoenix Trust under the last share certificate (No.5) executed on 20 July 1989, resulting in the Trust holding the total of 500,000 shares in the company.

As is evident from the appellant's letters of confirmation and administration, B. J. Rhodes died on 29 July 2006. The foregoing analysis of the documents furnished by the fourth respondent (Terrence Rhodes) demonstrates that, during the deceased's lifetime, Phoenix Trust became the sole shareholder of all 500,000 shares in Beverly East Properties (Pvt) Ltd.

In this regard, the appellant's assertion that the relevant share certificates and company resolutions are fraudulent and/or fabricated is difficult to comprehend.

The special resolution of the company, confirmed on 21 April 1988, was signed by the deceased himself, while the share certificates executed on 1 February 1988 and 20 July 1989 were signed by N. J. MacDonald. The latter also signed the minutes of the Directors meeting held on 20 July 1989, whereat it was resolved to allot 499,998 shares to Phoenix Trust. It is not in dispute that he was a Director of the company at the relevant time as well as being a trustee of Phoenix Trust.

While it is clear that the Trust was, at the relevant time, the sole shareholder of Beverly East Properties (Pvt) Ltd, there is nothing in the documents filed of record to demonstrate the shareholding of the Trust in the second company, Karoi Properties (Pvt) Ltd.

This is obviously a critical issue in satisfying the condition imposed by the High Court in the earlier Case No. HC1589/13.

As I have already indicated, the order granted in that case requires the fourth respondent (Terrence Rhodes) to lodge with the court “a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust.”

What the court presumably intended was for the fourth respondent to furnish proof that the shareholding in both companies had been transferred to the Trust.

Although this is strictly not an issue for consideration in the present appeal, it may well arise for determination in any future litigation between the parties, insofar as concerns ownership of the properties held by the two companies and entitlement to the rentals accrued from those properties.

Be that as it may, what is clear for present purposes is that the appellant has failed to substantiate his allegation of fraudulent misrepresentation by the fourth respondent (Terrence Rhodes) as the basis for seeking the rescission of the earlier judgment on the ground of fraud.

In short, the appellant has made the allegation of fraud but failed to discharge the onus of proving that allegation.

Consequently, it cannot be said that the court a quo misdirected itself, whether grossly or otherwise, by failing to appreciate the facts at all or by making findings of fact contrary to the evidence presented, in dismissing the application for rescission on the ground of fraud.

It follows that the third ground of appeal lacks merit and must therefore be dismissed.

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

There is a long history of litigation between the parties as evinced by the cross-references cited…,. The history can be summarized as follows.

The parties' relationship stems from a lease agreement originally signed between the applicant and a company called Endurite (Pvt) Ltd. The respondent bought the property, the occupancy of which is at the centre of the dispute from Endurite (Pvt) Ltd.

At the time, the applicant was a sitting tenant. The applicant remains a tenant of the respondent by operation of law.

In or about May 2009 the respondent issued summons in the main matter. Almost immediately after, in June 2009, the respondent issued an urgent chamber application. By the time it was served on the applicant a provisional order had been granted. I do not think that there is need to discuss the contents of the provisional order in detail, save to state that it shut the applicant down on the basis of perfecting the landlord's hypothec. The applicant's business has been closed since June 2009 as a result of this latest batch of litigation.

When the summons was served, the Director of the applicant was out of the country. On his return he emailed detailed instructions to his erstwhile legal practitioner, Mr Majoko, providing answers and defences to both the summons and the chamber application. For some reason I cannot understand, Mr Majoko agreed to represent the applicant notwithstanding that he had previously acted for the respondent.

In this email, the applicant evinced a strong desire to defend the case and the applicant proffered defences to the claims. The applicant left everything to its legal practitioner, Mr Majoko, under the belief that the matters were being defended.

Instead of defending/opposing the matters, Mr Majoko chose to negotiate with the respondent. Mr Majoko was trying to achieve an amicable solution to the dispute. No papers were filed timeously on behalf of the applicant during these negotiations. This resulted in a default judgment granted in favour of the respondent against the applicant under case number HC815/09.

This application is for rescission of the said judgment.

The applicant moves this application for rescission on two alternative grounds. The first, and principal, is that the default judgment was granted by error. It is submitted by the applicant that this judgment should be set aside in terms of Order 49 Rule 449 of the High Court Rules, 1971, as it was granted by error.

The alternative ground upon which rescission is sought is the ordinary ground, being that the papers filed by the applicant show good and sufficient cause for rescission of the judgment.

I propose to consider these grounds in turn.

Judgment granted in error

It is trite law that the court has both a statutory and a common law power to reverse a judgment that has been granted in error or under circumstances that indicate some irregularity. In Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS) GUBBAY JA…, made the following statement –

“Furthermore, it is firmly established that a judgment can only be rescinded under the common law on one of the grounds upon restiitutio in integrum would be granted, such as fraud or some other just cause, including justus error..,. Certainly, a litigant who is himself negligent and the author of his own misfortune will fail in his request for rescission – see Voet 2.4.14; Groenewald v Gracia (Edms) Bpk 1985 (3) SA 968 (T) at 972C-D and G – H.”

See also Jones v Strong SC67-03 and Yong Goo Cho v Stalin Mau Mau SC03-05.

It was submitted that there was justus error in this case. Such error, it was submitted, was on the part of the court, and was induced by certain non-disclosures and misrepresentations made by the respondent in its papers founding the urgent chamber application. In its papers under HC815/09, the respondent failed to disclose to the court the existence of an order previously granted in a similar dispute over rent between the parties. That order was granted in case number HC3256/04 and reads, in the material part, as follows:

“The parties agree that CB Richard Ellis shall determine a reasonable market rental in respect of the said premises from the 1st December 2004, and for the entire duration of the respondent's occupation of the premises.”

This order was granted by consent of the parties. It sets down a conflict resolution procedure for any further disputes on rentals between the parties. A neutral arbiter was appointed, by consent, to assess reasonable rentals for the disputed premises from time to time, for the entire duration that the applicant (who was the respondent under case number HC3256/04) would be in occupation of the premises.

It is common cause that the present dispute was, in the main, a dispute over rentals. It is also beyond dispute that the dispute arose during the applicant's occupancy of the premises. It is clear from the papers that the respondent did not have the rentals determined by the above-mentioned estate agent. The respondent unilaterally set the rentals and then demanded these rentals from the applicant, who disputed them. The dispute, as alluded to above, fell to be determined squarely under the consent order.

The respondent was supposed to have disclosed the existence of this consent order when it made the application under HC815/09.

It is trite law that the court may set aside a judgment granted in error where the judgment would not have been granted had the court been fully aware of certain facts – Nyingwa v Moolman NO 1993 (2) SA 508 (Tk); Topol v Ls Group Management Services (Pty) Ltd 1988 (1) SA 639 (W); and Holmes Motor Co v SWA Mineral and Exploration Co 1949 (1) SA 155 (C).

In my view, the non-disclosure of the above-mentioned consent order did lead to the judgment being granted in error. The court would not have granted the judgment had it been aware of the existence, and provisions, of the consent order.

Accordingly, on this point alone, the default judgment must be rescinded.

It is therefore ordered as follows:-

(1) That the judgment entered by this court against the applicant in case number HC815/09 be and is hereby rescinded.

(2) That the respondent pays costs of this application on an ordinary scale.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules....,.

Apart from my findings for dismissing the application as set out above, I would still have dismissed the application on the merits.

The applicants' case is grounded in the common law right of an affected party to seek rescission of judgment granted in default and the corresponding power of this court to rescind its judgment.

Alternatively, the applicant seeks to rely on Rule 449(1); the Rule reads as follows, in part:

“449 Correction, variation and rescission of judgments and orders

(1) 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; or

(b)…,.

(c)…,.”

The Supreme Court judgment, in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, provides guidance on the interpretation and purport of the Rule. The learned judge, GARWE JA, stated as follows…,:

“It is the general principle of our law that once a final order is made, correctly reflecting the true intention of the court, that order cannot be altered by that court.

Rule 449 is an exception to that principle and allows a court to revisit a decision it has previously made - but only in a restricted sense.

Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of proceedings in deciding whether a judgment was erroneously granted.

The specific reference in Rule 449 to a judgment or order granted in the absence of any party affected thereby envisages a situation where such a party may be able to place facts, before the latter court, which facts would not have been before the court that granted the order in the first place: see Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) at 364 H-365 A-D.

Further, it is also established that once a court holds that a judgment was erroneously granted in the absence of a party affected, it may correct, rescind, or vary such without further inquiry.

There is no requirement that an applicant seeking relief under Rule 449 must show 'good cause': Grantully (Pvt) Ltd & Anor v UDC Ltd supra at 365; Banda v Pitluck 1993 (2) ZLR 60 H at 64 F-H; Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK) at 1991–J and 200 A-B.”

The learned judge, drawing on and adopting the remarks of JAFA J in Mutebwa v Mutebwa & Anor 2001 (2) SA 193 (TK), proceeded to point out that a distinction had to be made between the approach to be adopted by the court in instances where the court or judge revisits its or his judgment mero motu to correct, vary, or rescind it in terms of Rule 449 and where the judgment is revisited on application of an affected party who was absent when the judgment or order was made.

Where the court or judge revisits the judgment mero motu, the court or judge is limited to the four corners of the record of proceedings.

Where, however, the Rule has been invoked upon the application of an affected party who was absent when the judgment or order being revisited was made, the court or judge is not bound to the four corners of the record. The court is enjoined to take into account the facts set forth in the affidavits filed with the application. The error, in such a case, does not necessarily have to appear ex facie the record.

It therefore is clear, in my reading of the authorities cited above, that in either case, that is whether the court acts mero motu or an application, there should exist an error to be corrected.

It is this error which must be established by the applicant.

The next issue is to define what amounts to an error.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, the learned GARWE JA stated that:

“What amounts to an error has also been the subject of a number of decisions.”

He then gave examples of Banda v Pitluck 1993 (2) ZLR 60 H wherein a default judgment had been granted against a defendant who had entered appearance to defend. The appearance to defend had not been brought to the attention of the judge meaning that had the existence of the appearance to defend been brought to the attention of the judge, he would not have granted judgment in default of appearance to defend.

In Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK), a false return of service purporting that the Deputy Sheriff had effected personal service was used to obtain judgment.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, there was a discrepancy between the sale agreement which had been attached to the summons and declaration with respect to the parties identifications and the alleged witnesses. GARWE JA held that the discrepancies were such that had the judge who granted judgment been made aware, he would not have granted judgment against a witness to the sale agreement.

The question as to what amounts to an error was not addressed directly by the Supreme Court in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291.

The learned judge in fact gave examples of errors which would pass to satisfy the requirements for correcting, rescinding, or varying a judgment.

An error is a mistake.

A judgment granted in error, or erroneously, would mean that the court or judge committed a mistake or mistakenly granted the judgment. Put in another way, the enquiry should be that the applicant needs to establish the existence of a fact or material which influenced or moved the court to grant judgment. It must be shown that the court would otherwise not have granted judgment but for that fact or material that becomes the error.

Rule 449(1)(a), as quoted above, comes into play where the judgment sought to be revisited was either erroneously sought or erroneously granted: see Machoto v Mudimu & Anor HH443-13.

A judgment, in my view, is erroneously or mistakenly sought by a party who seeks a judgement whilst labouring under a mistaken belief that he can properly seek judgment.

A simple example is like the one given by GARWE JA in Austin Munyimi v Elizabeth Tauro SC41-13 whereby he quoted the case of Banda v Pitluck 1993 (2) ZLR 60 H. If the plaintiff or the applicant applies for default judgement oblivious of the fact that appearance to defend or notice of opposition has been filed, such application will have been erroneously made, and, if the court grants the application, it will have granted it in error too.

I do not find that TSANGA J granted the application in case No. HC1589/13 in error as envisaged in Rule 449(1).

What was the error if one may ask?

The parties presented argument and the learned judge considered the papers filed before her and the arguments put forward in support thereof. The learned judge then delivered her judgment with reasons for the order which she made.

It is noted that none of the losing claimants or respondents appealed against the judgment.

The applicant avers that the judgment in question was granted after the court had been fraudulently misled into believing that the deceased had transferred shares into his two companies into Phoenix Trust.

A fraud and an error are two different legal concepts.

I believe that within the context of Rule 449(1)(a), the state of affairs, as argued by the applicant, cannot ground a setting aside of the judgment under that Rule.

I agree and endorse the remarks made by MAKARAU J…, in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…, that:

“Rule 449 is a step to correct an obviously wrong judgment or an order.

The power given the court under the Rule is discretionary, and, like all such powers, must be exercised judiciously…,.

A review of the authorities would appear to suggest that the Rule is designed to correct errors made by the court itself and not an omnibus through which new issues and new parties are brought before the court for trial.”

The applicant, in this case, is clearly seeking to bring in new issues which were not before TSANGA J.

He seeks to argue that the deceased never transferred any shares in the two companies to the Trust.

TSANGA J's judgment is clear in that she had to determine competing claims made to Honey and Blackenberg by various parties, to rental monies from the two properties as earlier described.

She made a determination that the Trust, represented by the fourth respondent herein (Terence Rhodes) was the lawful shareholder in the two companies. The judge then issued a conditional order that the fourth respondent herein was required to lodge a valid Trust document and evidence of proof of transfer of the properties to the Trust with the Registrar before the US$70,000 could be released to him.

There was clearly no error committed as envisaged in Rule 449(1).

The applicant seeks to demonstrate that no shares were ever transferred by the deceased.

The court did not grant a judgment in error because TSANGA J directed that proof be furnished.

The order sought by the applicant, in terms of Rule 449(1), must fail.

It leaves me to deal with the other ground for seeking the rescission of the court judgment in issue.

The applicant seeks to rely on the powers of the court to rescind its judgment under the common law.

The applicant avers that the fourth respondent (Terence Rhodes) fraudulently alleged that the late deceased, during his lifetime, transferred the entire shareholding of the two companies to the Trust represented by the fourth respondent. The applicant, in support of his claim to the alleged fraudulent misrepresentation by the fourth respondent, relied, as outlined in paragraph 19 of his affidavit, on a copy of the Trust Deed which lists the schedule of assets to be received by the Trust as two loan accounts as detailed therein.

The applicant alleged, in paragraph 20 of his founding affidavit, that “there is no documentary proof of any transfer of shares in terms of which the Trust obtained ownership or control of the properties held by the two companies.”

The fourth respondent has denied the allegations of fraudulent misrepresentation of facts and attached to his opposing affidavit copies of share certificates, resolutions by the companies, the share registers, and statutory returns which show the shareholding of the said two companies as being Phoenix Trust.

The applicant, in the answering affidavit, questions the authenticity of the documents.

He alleges that the documents are fraudulent and intended to defraud the Estate which he represents. He however makes a startling allegation that the proof of the fraud lies in that the records of the two companies have disappeared from the Companies Office - a Government department.

Proof that the Companies Office lost the documents was not produced.

In short, the applicant does not have and cannot produce records to back his claims.

In my view, this put paid to any claims which the applicant may seek to advance.

How does he claim falsity of documents without producing authentic documents to counter the alleged fraudulent documents?

What the applicant is doing is simply to make allegations which are not backed by any documentary evidence as to what he claims to the court to be the correct shareholding of the companies.

Ownership of companies is evidenced through documents of ownership in the form of share certificates, share registers, accompanying returns, and other such officially recognised documents which collectively or individually prove ownership.

What the applicant is simply saying is that he does not have proof of the existing ownership of the two companies by the deceased. He cannot lay his hands on any of the company records at the Companies Office because the documents are missing.

In his view, and dispute his handicap, he avers that anyone purporting to hold ownership of the companies is doing so fraudulently though he does not have any counter documents.

One wonders on what basis, even if the judgment were to be set aside, the applicant would prove to assert the existing ownership of the companies by the deceased.

The applicant also appears to approbate and reprobate at the same time.

I have considered case records HC10573/13 and HC10625/13 referred to by the fourth respondent in his opposing affidavit.

In case no. HC10573/13, the applicant, as curator bonis, filed an affidavit in which he sought the joinder of the Estate of the deceased, and the Master of the High Court, as 11th and 12th respondents in case no. HC1589/13, being the same case whose judgment he now seeks to have set aside.

He withdrew the application on 18 July 2014.

In his founding affidavit, in paragraphs 4 and 5 thereof, he averred that one Laurence Erasmus Vermark and Terrence Cobden Rhodes (the fourth respondent herein) were Trustees of Phoenix Trust. He described the said Trust as a sham which was not registered and non-existent. He averred that it was purportedly created by the deceased.

The applicant, in the same application, HC10573/13, sought that the estate be joined as a respondent to case no. HC9849/13.

Case No. HC9349/13 was an application by the first respondent in this application (Gideon Hwemende) for rescission of the judgment by TSANGA J in HC1589/13. The first respondent claimed to own 60% of the two companies' shareholding. Case No.9849/13 was dismissed with costs on the higher scale by MATHONSI J on 21 May 2015.

When I further perused the documents in HC10573/13, I noted that one Laurence Erasmus Vermark had deposed to an affidavit on 20 May 2013. He made various allegations of how he had been intimidated and threatened if he did not resign as a director of the two companies.

What attracted my interest as being relevant to this application is that the said deponent to the affidavit confirmed that all the issued share capital in the two companies in issue were held by the Phoenix Trust and that he was a trustee of Phoenix Trust until 25 January 2012 when he resigned. He confirmed that the fourth respondent (Terence Rhodes) was and is a trustee of the said trust together with one Ken Regan. The secretaries of the companies, according to the deponent, were Accounting Executor Services (Pvt) Ltd.

The applicant, in the application before me, does not say anything about this information which he is aware of. He only states that the fourth respondent misrepresented that the Trust owned the shareholding in the companies.

In yet another case, HC10625/13, filed on 10 December 2013, the applicant, as curator bonis of the estate aforesaid, made an urgent application seeking, in the interim, a stay of execution of TSANGA J's judgment and for an order that the Master of the High Court should run the affairs of the two companies pending the determination of the joinder application, which, as has already been noted, he subsequently withdrew.

The applicant, in his affidavit in HC10625/13, alleges that he carried out a forensic audit which revealed that Phoenix Trust was a sham and non-existent. He averred that TSANGA J had granted her judgment in error.

I agree with the submissions made by the fourth respondent's counsel that the applicant seeks to mislead the court by making conflicting depositions in the affidavits in various cases which he has filed in this court.

None of the previously filed cases have seen the light of the day.

The applicant appears to be clutching at straw.

He has no information or documents relating to the two companies to back up his claim. He refers to a forensic audit of the companies having been carried out. The forensic audit has remained a secret document. He did not attach it to the present application nor to the cases to which my attention was drawn and which I have noted in this judgment.

The applicant appears to be on a fishing expedition.

When the Trust Deed for the Trust was produced, he then created another angle to seek the re-opening of TSANGA J's judgment. He changed from his position that he had carried out a forensic audit which showed that Phoenix Trust is a sham.

In my judgment, the applicant is involved in a stalking exercise whereby he waits by the shadows and each time a document pertaining to the two companies comes to his attention, he tries to and devises ways to attack and nullify it. The applicant himself has no contra evidence or documentation to back his position.

The question I then address is whether, in such circumstances, I should be persuaded to set aside TSANGA J's judgment using the court's common law powers.

It is settled law that the onus is on the applicant who seeks rescission of judgment granted in default at common law to demonstrate sufficient cause for the relief to be granted: see Shinga Express (Pvt) Ltd v Hubert Davies (Pvt) Ltd 1998 ZLR; Uzande v Katsande 1988 (2) ZLR 47; Kaiser Engineering (Pvt) Ltd v Makeh Enterprises Ltd HB06-12.

In Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS) GUBBAY JA stated as follows:

“Furthermore, it is firmly established, that, a judgment can only be rescinded under the common law on one of the grounds upon which restitutio in integrum would be granted, such as fraud or some just cause, including justus error…,.

Certainly, a litigant who is himself negligent and the author of his own misfortune will fail in his request for rescission: see Voet 2.4.14; Gorenewald v Gracia (Edms) Bpk 1985 (3) SA 9687 at 972 C-D and G-H.”

See also Jones v Strong SC67-03 and Yeng Goo Chao v Stalin Mau Mau SC3/15.

In my judgment, the court does not enjoy an inherent discretion to rescind its judgment under the common law outside the parameters of ground upon which restitutio in integrum would be granted: see Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163.

It is important, in cases where rescission is sought under the common law, to appreciate that the court which granted the judgment being revisited will have become functus officio after having considered the merits of the dispute and given a definitive judgment thereon.

The ordinary and accepted way to revisit the judgment is by way of appeal so that a higher authority considers the judgment.

A court faced with an application to revisit its judgment, as in casu, must approach the application mindful of the fact that it will have exhausted and exercised its authority which it cannot do twice.

In casu, the applicant alleges fraud as the ground for seeking the setting aside of the judgment.

The fraud alleged to have been committed by the respondent, and which influenced TSANGA J to grant the order which she gave, was said to have manifested itself in the fourth respondent (Terence Rhodes) misrepresenting that Phoenix Trust, of which he was a trustee, held the issued shares of the two companies.

The applicant, on his own, does not provide evidence or proof of the correct position regarding the shareholding.

Fraud cannot be proved by a mere say so.

The applicant, in order to show good cause, should at least have provided tangible evidence that the correct shareholding of the companies is otherwise different from that which the fourth respondent gave it out to be.

The fourth respondent has, in the opposing affidavit, gone into detail to prove his assertions and produced official documents which prove that Phoenix Trust owns the entire shareholding in the companies.

To simply then attack the authenticity of the produced documents without providing any contra proof to controvert the fourth respondent's evidence is an exercise in futility.

As I have pointed out, the applicant simply does not have evidence of the shareholding of the companies.

TSANGA J's judgment must stand because it has not been shown that she relied on any fraudulent evidence in assessing the facts before her in so far as the evidence of the fourth respondent (Terence Rhodes) was concerned.

Rescission under common law is granted under exceptional circumstances. Such circumstances have not been demonstrated to me on a balance of probabilities in this case. The relief sought must stand refused.

Turning to the question of costs, the fourth respondent has applied for costs on the higher scale and against the executor bonis or dative as the case maybe, being Oliver Masomera.

Costs are in the discretion of the court, albeit, the general rule being that costs follow the result.

Counsel for the fourth respondent did not seek to mount any spirited argument regarding the level of costs other than to submit that this application is in an abuse of the court process which merited a dismissal with costs on the attorney and client scale.

The applicant, on the other hand, submitted, in his heads of argument, that, the applicant was seeking costs on the same scale, of attorney client scale, because the fourth respondent perpetrated a fraud against the estate of the deceased. It was submitted that the fourth respondent did not have authentic legal documents to support his claim.

This was a startling submission because the applicant himself did not produce the documents which otherwise show that the fourth respondent is misrepresenting facts.

Having carefully considered this application, it is clear to me that the applicant, judging by the previous applications which he has filed and lost or withdrawn, is determined to ensure that the estate of Brian James Rhodes does not lose what may be due to it. Unfortunately, the applicant appears to be ill-advised. He needs to gather facts which would support the claims he is making.

He is just groping in the dark.

Already, the estate has been saddled with costs of related matters and continues to incur additional costs. Coming to court should not be viewed as an excursion in the park. The applicant needs to be properly advised and put together the evidence he has including getting proper advice on evidence.

I reluctantly concluded that the applicant has not acted mala fide in this application. He however must introspect and be properly advised lest another court may rule that he is abusing the court process if he files endless unmerited applications.

I will not penalize the applicant nor the estate with punitive costs.

I make the following order:

The application be and is hereby dismissed with costs to be borne by the Estate of the Late Brian James Rhodes.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

This is an application for rescission of judgment in two matters, HC6627/10 and HC3805/08, brought in terms of Order 49 Rule 449(1)(a) of the High Court Rules, 1971.

The relief sought by the applicant, is for an order in the following terms:

1. The judgments obtained by the 1st respondent against the applicant in case numbers HC3508/08 and HC6627/10 be and are hereby set aside.

2. The title deeds to Stand Number 2819 Bluffhill Township, Bluffhill, Harare which 1st respondent obtained as a result of an order granted to him in case number HC3508/08 be and are hereby nullified.

3. Applicant be and is hereby declared the sole owner of Stand 2819 Bluffhill Township of Bluffhill held under Deed of Transfer number 004804/98 in his favor.

4. 1st respondent and any person claiming occupation through him from Stand Number 2819 Bluffhill Township of Bluffhill be and are hereby ordered to vacate the property within seven days of the date of service of this order.

5. 1st respondent pay costs of suit on a legal practitioner client scale.

In the founding affidavit, the applicant averred that: he is the lawful owner of Stand 2819 Bluffhill Township of Bluffhill, Harare (hereinafter referred to as the Bluffhill stand) in terms of a Deed of Transfer number 004804/98.

On or about 9 April 2007, he discovered that there was construction going on at this property, despite there not having been an agreement entered into by him to sell this property to anyone.

On making inquiry, he found out that the first respondent was responsible for the construction on the basis that he had bought the Stand from “an old man and pensioner, Jonas Mushosho, of Matepetepa in Mashonaland Central.”

During an initial telecommunication with the first respondent, he advised him that he was Jonas Mushosho; but that he had not sold the Bluffhill stand to anyone. The first respondent, in turn, advised him that he had already taken transfer of the property, and referred him to his legal practitioners, Messrs Dinha Bonongwe & Partners.

On his instructions, his legal practitioners wrote to the first respondent, on the 12 April 2007, advising him to cease construction on the Bluffhill stand, and to vacate within twenty-four hours.

He reported the matter to the police who accompanied him to the Stand on 28 April 2007.

On 30 April 2007, the parties met at the Criminal Investigations Department at Ahmed House in Harare. According to the applicant, the first respondent admitted that he did not know him and had never had dealings with him, and that he had been cheated by a person impersonating the applicant - the real 'Jonas Mushosho'.

The applicant averred that the first respondent voluntarily surrendered the keys to the property that he had built on the Bluffhill stand.

Detective Sergeant Rodwell Mwandayi, the Investigating Officer in this matter, deposed to an affidavit on 28 May 2007 in which he confirmed the applicant's version of events.

On 8 May 2007, the first respondent applied for, and was granted a spoliation order in the Magistrate's Court, under case number 3877/07. He attached to that application, an Agreement of Sale entered into by him and Jonas Mushosho, Identity card number NR63-286395 J18, of House Number 37 Matepatepa, Bindura. The agreement is dated 28 June 2006, and it states that Jonas Mushosho was the owner of Stand 2819 Bluffhill, Harare which he sold to the first respondent for ZW$1,2 billion.

The agreement was signed and witnessed before legal practitioners.

Attached to the Agreement of Sale was an affidavit in which Jonas Mushosho confirmed that he had sold the Stand to the first respondent. The affidavit was commissioned before the same firm of legal practitioners. Deed of Transfer number 4804/98 was attached, which showed that the registered owner of the Bluffhill stand was Jonas Mushosho, born on 24 November 1958.

On 4 July 2007, under case number HC3878/07, in the High Court, the applicant filed for the first respondent's eviction from the Bluffhill stand, and for a declaration that the agreement of sale relied on by him, was null and void.

Judgment was entered in favor of the applicant, in default of filing a plea by the first respondent.

The first respondent applied for rescission of this judgment, and the applicant admits that he did not oppose this application.

The first respondent then applied for an order compelling the applicant to sign transfer documents to transfer the Bluffhill stand into his name, under case number HC2775/07.

The applicant opposed that application.

On 8 February 2008, under case number HC538/08, it was ordered that:

1. First respondent be interdicted from carrying on further developments on Stand 2819 Bluffhill, Harare until the matter was finalized.

2. Applicant and the Deputy Sheriff stay execution of the default judgment granted in HC3878/07.

3. Cases HC2775/07 and HC3878/07 be joined as one action.

The two matters which had been joined were eventually set down for a pre-trial conference on 8 April 2010.

The applicant averred that the first respondent's legal practitioners of record at the time, Messrs Manase & Manase, refused to accept service of the notice of set down of the pretrial conference (see paragraph 15 of the founding affidavit).

It would appear, from the letter written to the Law Society by the applicant's legal practitioners, that service of the notice was attempted to be made at 9;30 am indicating that a pre-trial conference was set down before JUSTICE HUNGWE at 12:30pm that day.

JUSTICE HUNGWE made the following order, on 8 April 2008, in case numbers HC3878/07 and HC2775/07:

1. Respondent with action in HC2775/07 withdrew its case and tendered wasted costs on the 26th February 2008.

2. The Honorable F. CHATUKUTA J's order, in case number HC3878/07, is hereby revived thereby superceding the HONORABLE BHUNU'S order in case number HC538/08.

IT IS ORDERED THAT:

(a) Respondent (Mudimu) and any person claiming occupation through him from Stand 2819 Bluffhill Township Bluffhill, Harare be and are hereby ordered to vacate the property within seven days of the date of this order.

(b) The Agreements of Sale between respondent and one impersonator 'Jonas Mushosho' dated June 23 2006, and June 28, 2006 be and are declared null and void.

(c) Applicant be and is hereby declared the sole owner of Stand Number 2819 Bluffhill Township, Bluffhill, Harare, held under Deed of Transfer No. 004804/98 in his favour.

(d) The spoliation order granted in case number 3877/07 be and is hereby set aside.

(e) Respondent pays costs of this suit on an attorney-client scale.

The applicant averred that his attempts to enforce this order were met with stiff resistance, and that the first respondent refused to vacate the premises on the basis that he had since taken transfer and now held the Bluffhill stand under Deed of Transfer number 0005304/09.

The first respondent then applied for rescission of the judgment made by HUNGWE J, and for stay of execution pending determination of the application for rescission of judgement. These two applications were filed under case numbers HC6627/10 and HC6794/10.

The applicant opposed both applications, and filed a counter-application to the application for rescission of judgment.

On 11 October 2010, MAKONI J issued an order dismissing the first respondent's application in case number HC6794/10, the order to stay execution.

The applicant averred that he opposed the first respondent's application for rescission of HUNGWE J's judgment granted in the joined cases HC3878/07 and 2775/07.

The applicant's notice of opposition to the application for rescission appears to have been filed of record on or about 6 October 2010. His counter application was filed on the same date.

He counterclaimed for a declaratory order that he is the sole and legal owner of the Bluffhill stand held under Deed of Transfer 0004804/98, and for an order that Deed of Transfer 0005304/09 be declared null and void.

The application by the first respondent to rescind HUNGWE J's order was set down on the unopposed roll on 1 December 2010, and the following order was granted, unopposed, by BHUNU J:

1. Default judgment entered against applicant (Mudimu) in the consolidated case number HC2775/10 be and is hereby rescinded.

2. Costs of suit shall be borne by the respondent (Mushosho).

The applicant denied ever having been served with papers in case number HC3508/08, in which the first respondent obtained an order from MAVANGIRA J, in default of appearance by the applicant, on 24 September 2008, to the effect that the applicant sign all necessary documents to effect transfer of the Bluffhill stand into the first respondent's name within seven days of the date of that order, or failing which the Deputy Sheriff was authorized to sign the documents on his behalf.

The applicant averred that he suspects that Deed of Transfer number 0005304/09 came into existence that way.

The applicant contended that the first respondent obtained the order in case number HC3508/08 fraudulently and under unclear circumstances.

The applicant averred that he was never served with any papers and that had he been served, he would have vigorously opposed the granting of the order.

The applicant averred that the first respondent never approached him and requested that he sign transfer documents within seven days of 24 September 2008, as directed by the order.

The applicant averred, that, as at 24 September 2008, when the first respondent obtained the order from MAVHANGIRA J, the consolidated matters under HC538/08 were still pending determination on similar issues.

The applicant contended further, that, the order under HC6627/10, which rescinded judgment in the consolidated cases determined by HUNGWE J, was obtained irregularly and in unclear circumstances.

He contended that his counter-claim was not determined or referred to.

He reiterated that he was not in default, and that the matter was erroneously set down on the unopposed roll without his knowledge.

The applicant's claim is that the orders obtained by the first respondent, in HC3508/08 before MAVANGIRA J, and HC6627/10 before BHUNU J, were obtained fraudulently and irregularly and ought to be rescinded.

The first respondent, in his opposing affidavit, raised a preliminary point that the application is without merit and should be dismissed as it seeks the rescission of a judgment entered against the applicant on 25 September 2008 in HC3508/08, four years later, and on 1 December 2010, in HC6627/10, two years later.

The preliminary point raised is that an applicant has a period of one month, from the date when he becomes aware of a judgment, to apply for its rescission, and may not do so thereafter unless he applies for condonation of the late filing first.

The first respondent averred that the applicant, in bringing this application, is in breach of Order 9 Rule 63 of the Rules of this court.

The first respondent averred that the applicant ought to be ordered to pay costs de bonis propriis because his legal practitioners were advised of the apparent breach of the Rules of this court, on 3 December 2012, but have persisted with their application.

Regarding the merits of the application, the first respondent averred that the applicant sold the Bluffhill stand to him on 23 June 2006 through Messrs Dinha, Bonongwe & Partners legal practitioners.

The first respondent averred that the applicant received the full purchase price and tendered a letter dated 24 October 2012 in which Mr. Bonongwe of Messrs Dinha Bonongwe & Partners confirms that the parties entered into an Agreement of Sale in respect of Stand 2819 Bluffhill, Harare and that the sale was perfected.

The letter states that a Mr. Robert Nyawasha, a paralegal with that firm, was able to positively identify both parties as being the parties who entered into the Agreement of Sale.

Both parties' identity card numbers were supplied.

The first respondent contended that he was forcibly despoiled of the property by the applicant, and that he was intimidated into handing over the keys to the property, a cottage, that he had constructed and which he was in occupation of.

The first respondent averred that the applicant attempted to serve a notice of set down of the pre-trial conference before HUNGWE J, a mere thirty minutes before the set down time, and confirmed that the receptionist at Messrs Manase and Manase, his legal practitioners of record, refused to accept service of the notice of set down.

The first respondent averred that the applicant produced a fake notice to HUNGWE J, indicating that the first respondent had withdrawn its claim and tendered wasted costs, at the pre-trial conference, in the absence of the first respondent, who had not been correctly served with notice of set down.

The first respondent averred that he applied for rescission of the judgment handed down by HUNGWE J.

He confirmed that the title deeds in his name were obtained as a result of the order granted by MAVANGIRA J, under HC3508/08.

The first respondent contended that the court in HC3508/08 would not have granted the order had it not been satisfied that the papers had been duly served on the applicant, and that he was indeed in default.

He challenged the applicant to state whether a perusal of that record failed to show that there was adequate proof of service of the process on him.

The first respondent reiterated that the applicant failed to file opposition in time in both matters, and that he was justified in setting down HC6627/10 on the unopposed roll for determination.

The first respondent contended that no evidence of error on the part of those two courts had been alluded to or provided by the applicant.

The applicant filed an answering affidavit in which he denied that this application is devoid of merit.

He contended that his application is not premised on Rule 63, but on Rule 449(1)(a) of the Rules of this Court.

According to the applicant, an application in terms of Rule 449 is not time specific, and all that one has to show is that the order sought to be rescinded was erroneously sought or erroneously obtained in the absence of the applicant.

The applicant contended that the first respondent's point in limine ought to be dismissed and urged the court not to accede to the request for an order of costs de bonis propriis.

The applicant contended that Messrs Dinha Bonongwe & Partners participated in the fraud perpetrated against him by the first respondent, and caused the illegal transfer of the Bluffhill stand into the first respondent's name.

The issue that falls for determination is this: is there sufficient evidence before the court, on the basis of which the court should grant rescission of the two judgments in case numbers HC3508/08 and HC6627/10; and, if so, should the court be guided by the provisions of Order 9 Rule 63 or Order 49 Rule 449(1)(a)?

Put simply;

(i) The first issue to be determined is that of which of the provisions of the High Court Rules 1971, out of those that provide for rescission of judgments granted in default of one of the parties, is best suited to determine the dispute between the parties in this case.

(ii) The second issue for determination after that will be whether, in the circumstances of this case, on the evidence before the court, the applicant should be granted the relief that he seeks.

Order 9 Rule 63 provides as follows:

“63. Court may set aside judgment given in default

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of sub rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Order 49 Rule 449 provides as follows:

“449. Correction, variation and rescission of judgments and orders

(1) 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; or

(b)…,.

(c)…,.”

The applicant relied on the case of Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07…, where CHATUKUTA J said:

“…,. Mr. Mushonga submitted that the applicant was seeking rescission in terms of Rule 449 as read together with Order 9 Rule 63.

Firstly, applicant does not refer to Rule 63 in its pleadings. Rule 63 was first mentioned in the oral submissions and therefore was not pleaded.

Secondly, I am not sure whether the two rules can be read together. It is my view that there are three separate ways in which a judgment in default of one party may be set aside. This can be done in terms of Rule 63, or Rule 449(1)(a) or in terms of the common law.”

There are two noteworthy issues that distinguish Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07 and the issue under consideration:

(i) The first is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, it was not in dispute that a defective notice of entry of appearance to defend had been filed of record.

In the matter under consideration, it is not clear what the error was, and whether it was an error relating to the pleadings filed, or on the part of the court in accepting such pleadings.

(ii) The second distinguishing factor is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, the alleged error was defined as an error of law and was clearly spelt out as such in the pleadings.

It is my view, that, in order to qualify for relief under Rule 449(1)(a), a litigant must show that:

1. The judgment was erroneously sought or erroneously granted;

2. The judgment was granted in the absence of the applicant or one of the parties;

3. The applicant's rights or interests were affected by the judgment: see Mutebwa v Mutebwa and Anor 2001 (2) SA 193;

4. There has been no inordinate delay in applying for rescission of the judgment.

It is my view, that, in order to qualify for relief under Rule 63, a litigant must show that:

1. Judgment was given in the absence of the applicant under these Rules or any other law.

2. The application was filed of record and set down for hearing within one calendar month of the date when the applicant acquired knowledge of the judgment.

3. Condonation of late filing has been sought, and obtained, where the applicant fails to apply for rescission within one month of the date of knowledge of the judgement.

4. There is “good and sufficient cause” for the granting of the order.

See Viking Woodwork v Blue Bella Enterprises 1988 (2) ZLR 249 (S)…,; Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S)…,; Sibanda v Ntini 2002 (1) ZLR 264 (S); Pastor Jameson Moyo & 3 Ors v Reverend Richard John Sibanda & The Apostolic Faith Mission SC06-10.

5. The phrase 'good and sufficient cause' has been construed to mean that the applicant must:

(a) Give a reasonable and acceptable explanation for his/her default;

(b) Prove that the application for rescission is bona fide and not made with the intention of merely delaying the plaintiff's claim; and

(c) Show that he/she has a bona fide defence to the plaintiff's claim.

See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210.

It is also my view, that, in order to qualify for relief in terms of this court's common law power to rescind its own judgments, a litigant must show that:

1. The court's discretion that it is being asked to exercise is broader than the requirements of both Rule 449 and Rule 63.

2. Whether, having regard to all the circumstances of the case, including the applicant's explanation for the default, this is a proper case for the grant of the indulgence.

See Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201; and De Wet & Ors v Western Bank Ltd 1979 (2) SA 1031…,.

The question is: what sort of error will suffice to bring an applicant squarely within the ambit of Rule 449(1)(a)?

Is it an error of fact, an error of law, or both?

An 'error' in common and ordinary parlay, is defined as: a mistake, fault, blunder, boo-boo, slip, slip-up, inaccuracy, and miscalculation.

The law is settled on the issue of if or when and whether this court ought to grant rescission of its own judgments in terms of Rule 449.

In South Africa, In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)…, ERASMUS J said of the almost identically worded Rule 42(1)(a) of the South African Uniform Rules:

"It is an abuse of the process of the court to bring such an application some five years and eight months later. Matters must have some finality and Rule 449 was not designed to let defendants have a second bite at the cherry by raising a defense which should have been raised when the summons was issued."

The Zimbabwean courts have followed some aspects of the South African position and rejected others.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC) the court held that;

“The judgment had been granted because, at the time of its issue, the judge was unaware of a relevant fact, the provisions of the clause in the acknowledgment of debt. Had he known of the clause, he would not have granted the judgment he did.

There was ample precedent for the proposition that a court to which application is made for rescission is not confined to the record of proceedings in deciding whether a judgment was erroneously granted. The wording of Rule 449(1)(a) of the High Court Rules made it clear that a party against whom default judgment had been granted was entitled to place before the correcting, varying, or rescinding court facts which had not been before the court granting the default judgment.

It was held, further, that it is not necessary for a party seeking relief under Rule 449 to show 'good cause'.

If a court holds that the default judgment was erroneously granted, it may be corrected, rescinded, or varied without further enquiry.

The court also found that Rule 449 is one of the exceptions to the general principle that once a court has pronounced a final judgment or order it is functus officio and has itself no authority to correct, alter, or supplement it…,.

See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-G; Stumbles & Rowe v Mattinson; Mattinson v Stephens & Ors 1989 (1) ZLR 172 (H) at 174 D-F; Tshivhase Royal Council & C Anor v Tshivhase & Anor; Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852 (A) at 862 I-J.”

It is clear, that, to qualify for relief under Rule 449(1)(a), mistakes of fact are not precluded, although it is apparent that the mistakes referred to are not trivial or petty clerical ones. The mistake must have been made on the part of the party seeking the judgment in default, or of the judge who grants it, and the applicant ought to show that he was prejudiced as a result, or that there was a miscarriage of justice.

In other words, despite having a good defence on the merits, judgment was given against him in error, as a result of such mistake.

The law is also clear, that, any fact which was not brought to the attention of the court at the time judgment in default was given, may be placed before the court dealing with an application to rescind judgment in terms of Rule 449.

The allegations of fraud, made by the applicant, were not placed before the courts that determined the judgments that the applicant seeks to have set aside. The applicant is now entitled to place evidence of such fraud before this court.

Disposition

It is my view, that, the differences in the requirements of the two High Court rules are clear.

Rule 63 has strict time limits which must be adhered to, and, a litigant who falls foul of the time-limits will not be heard unless condonation is first sought and obtained.

The phrase 'good and sufficient cause' is seemingly wide-ranging and all encompassing. The explanation for the default must be reasonable and/or acceptable. The applicant must show that he has a bona fide defence to the claim.

On the other hand, the court's common law discretion to rescind its own judgments is wide and requires that regard be had to all the circumstances of the case, including the explanation for, and the length of the delay in bringing the application, and the prospects of success of the applicant in the main matter.

In my view, Rule 63 is more in tandem with this court's common law discretion to rescind its own judgments.

I say so because, when regard is had to the wording of Rule 63, that, “a party against whom judgment has been given in default, whether under these Rules or under any other law,”…, it becomes clear that Rule 63 recognizes the possibility that judgments may be rescinded under other laws which may not necessarily fall under the Rules of this court, such as the common law discretion that this court has to rescind its own judgments.

Rule 449(1)(a) is narrower than Rule 63.

It does not require evidence of 'good and sufficient cause' although it appears to require some consideration of an applicant's prospects of success in the main matter. It appears deceptively simple in its requirement of evidence of an error that caused or induced a court to grant judgment in default in circumstances where it would not have ordinarily granted such judgment.

It is my view that the law is clear on the question of which vehicle a party seeking rescission of judgment given in default may use.

There are three vehicles; Rule 63, Rule 449 and common law discretionary power.

Depending on the circumstances of the case, an applicant is at liberty to elect to utilize whichever one of those three vehicles best suits the circumstances of the case: see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201.

In my view, whichever vehicle a litigant chooses, the court will have to consider the question of length of time that will have elapsed since the judgment sought to be rescinded was granted.

It follows that the first respondent's preliminary point cannot be upheld.

The applicant is not duty bound to proceed in terms of Rule 63. However, the court's scrutiny of the circumstances of this case will show whether the applicant was wise in electing to proceed in terms of Rule 449(1)(a).

Having disposed of the point in limine, I now turn to the merits of the matter.

The applicant contended, that, its non-appearance in both instances was caused by the first respondent's fraudulent and/or irregular set down of the matters without notice, despite clear opposition, and despite the absence of proof of service on him.

Rule 449(1)(a) requires that an applicant demonstrates a simple error, either in the seeking of the default judgment, or on the part of the court in granting it.

My reading of the applicant's papers is that the applicant does not expressly state that the error lay in the erroneous seeking of the judgments. It is implied, in the applicant's papers, that the allegation is that the error lay with the court in being influenced by papers fraudulently or irregularly filed, being almost “duped” as it were, into granting the two judgments when it normally or ordinarily would not have done so.

The court must decide, having regard to the papers filed of record by the applicant, whether there was any mistake, or blunder, or miscalculation, on the part of the court in granting the two judgments that are sought to be impugned.

The applicant, correctly in my view, sought to rely on the case of Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 as authority for the proposition that any type of error will suffice for purposes of entitling an applicant to relief under Rule 449(1)(a).

It would appear, that, this case is distinguishable from the one under consideration because, in that case, judgment had been granted by consent and its rescission was sought on the basis of an error common to both parties in terms of Rule 449(1)(c). The error related to a question of law, the debtors had not opposed the granting of the judgment because they were not aware of the in duplum rule. It was held that, even assuming that the parties were laboring under a common mistake, the applicants would have had to go further and prove that the amount of the judgment debt had breached the in duplum rule.

In other words, the defence in the main matter must have merit.

I accept that the sort of error that entitles a litigant to proceed in terms of Rule 449(1)(a) can be one of fact or of law, as long as there is evidence that the court was influenced by such error in granting the default judgment.

I also accept that before rescinding the judgment, a court must consider whether the applicant has prospects of success on the merits of the matter.

In seeking the rescission of the two judgments granted in default of appearance by himself or his legal practitioner of record, in terms of Rule 449(1)(a), the applicant contended that, in case number HC3508/08, the first respondent obtained judgment in default of the applicant's appearance. The applicant averred that the error that occurred was that judgment was granted despite the fact that “…, court papers leading to the grant of such default judgment were never served on the applicant…, neither did the first respondent serve papers on the applicant's legal practitioners of record.”

It is my view, based on the papers filed of record, that the applicant did not provide any explanation, let alone an acceptable or reasonable explanation, as to why or how the court which granted the judgment in default did so in the alleged clear absence of proof of service, on him or his legal practitioner, or a certificate of service as required in terms of Order 5 Rule 42B(1)(b) of the Rules of this Court.

It is my view that the presumption that the judgment granted in default was done so on the basis of adequate proof of service to the court, was not adequately rebutted in the papers filed of record by the applicant.

The applicant contended, further, that, in case number HC6627/10, an “absurdity” occurred, in that, the applicant had filed his opposing papers to the application with the Registrar of this court and served the same on the first respondent's legal practitioners, who then erroneously set the matter down for hearing on the unopposed roll as if no opposition had been filed, and a default judgment was erroneously granted by the court.

The notice of opposition filed of record, as part of the applicant's papers, appears to have been filed of record with the Registrar of this court on 6 October 2010. Judgment in this matter was granted in 2012 - a good two years after the opposing papers were allegedly filed of record: yet, nowhere on those papers is there a date stamp to show that the opposing papers were served on the first respondent's legal practitioners of record.

The presumption that arises is that the notice of opposition may have been filed of record with the Registrar, but, there is no proof that it was served on the first respondent. Not even a certificate of service by the applicant was filed of record in terms of Order 5 Rule 42B(1)(b).

In the absence of service on the first respondent, and assuming that some administrative error was made, and that there was no copy of the opposing papers in the record, I fail to see the mistake made by the court in granting judgment in default.

The judgment of the court was based on the papers before it at the time.

The court could not have guessed that opposing papers had been filed of record and somehow fallen out of the record. No explanation at all has been given as to why those opposing papers were not served on the first respondent. The matter would not have been set down on the unopposed roll had the first respondent been aware that it was opposed.

The applicant has not rebutted the presumption that opposing papers were not served on the first respondent.

It is my view, that, no mistake was alluded to or proved from the papers filed of record.

There is evidence that the applicant is the one who sold the Bluff-hill stand to the first respondent. There is a witness who can identify him at Messrs Bonongwe & Partners legal practitioners as being the seller of the Bluff Hill stand.

He has not proved fraud on the part of the first respondent or Messrs Dinha Bonongwe & Partners.

In the absence of proof of fraud, the Agreement of Sale is valid and binding on him. There is evidence that the sale was perfected.

In my view, the applicant has no prospects of success in the main matter.

I find that the applicant has failed, in the circumstances of this case, on the papers before me, to furnish adequate proof of fraud, irregularities, or any fault in respect of both judgments sought to be impugned, on the part of the court in granting each judgment.

None of the elements of fraud were expressly averred or pleaded. Fraud is a criminal offence.

It is not clear whether there was a misrepresentation, and, if so, who made it to the court. There is no evidence that the court relied on any misrepresentation when it granted the two judgments.

There is a bald assertion that there was fraud in the filing of the papers; there is a vague reference to “irregularities”, and to an “absurdity”. But, there is nothing in the way of proof of these allegations - not even prima facie evidence.

All the applicant tells us is that the papers were not in order.

We are not treated to the courtesy of being told what exactly it is that was allegedly done, and by whom.

We are not provided with evidence that indeed the court proceeded to grant judgment on the unopposed roll when the papers before it clearly showed that it ought not to have done so. We are not told that despite proof that there was a notice of opposition duly filed of record and served on all interested parties, the court erred in overlooking it and proceeded to grant judgment in default.

There is simply no evidence of any error on the part of the court in both instances, whether an error of fact or an error of law.

It is my view that Rule 449(1)(a) does not apply to the circumstances of this case, and, to borrow the phrase in Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201;

“…, the judgments in fact reflected the true decision of the court on the basis of the evidence presented.”

It is my considered view that the applicant is not entitled to the relief that he seeks.

In the never-ending quest for justice, litigants are becoming increasingly indefatigable in approaching the well of justice to quench their thirst for justice.

Uppermost in my mind, in considering the merits of the application before me, was a question the answer to which I knew would only be resolved by resorting to that vague and elastic notion – discretion.

The parties before me have made numerous applications and counter-applications, in regards to the same piece of property, Stand 2819 Bluffhill Township, Harare, over a considerable period of time, from 2006 to date.

Surely, there comes a time when justice and fairness demands that both the victor and the vanquished act sensibly and accept that the matter has been conclusively resolved?

I can do no better than other esteemed courts have done before me, in expressing my disquiet at the manner in which proceedings were conducted between these parties in such a protracted way and over such a lengthy period - with no light at the end of the tunnel.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC), the court expressed the view that a judge would be “…, justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. Rule 449 was a procedural step, designed to correct, expeditiously, an obviously wrong judgment or order…,. It is in the interests of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of court orders. It would be a proper exercise of the court's discretion to rule that, even if the applicant proved that the Rule applied, it could not be heard after the lapse of a reasonable time. The length of time the appellants waited in this case, whatever the explanation, was unreasonable and the application was an abuse of the court's process.”

The court has already found that Rule 449(1)(a) is not applicable to the circumstances of this case.

Even if Rule 449(1)(a) had been applicable to this case, no reasonable or acceptable explanation was given as to why the applicant waited so long to apply to rescind these judgments.

For these reasons, the application is dismissed with costs.

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

BACKGROUND

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

5. There shall be no order as to costs.”

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

PROCEEDINGS A QUO

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

FINDINGS A QUO

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

THE APPEAL

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1. Whether there was a need for the appellants to seek condonation before filing the rescission of judgment application in terms of Rule 449 of the High Court Rules.

2. Whether the appellants had locus standi.

I propose to deal with the issues in turn.

WHETHER CONDONATION SHOULD HAVE BEEN SOUGHT

Counsel for the appellants submitted that the judgment of the court a quo is not clear whether condonation was necessary or not.

He submitted that Rule 449 does not fix any time-frame for bringing the application. To that extent, there was no need to seek condonation as it could not be said that the application was out of time.

Per contra, counsel for the first respondent submitted that the mere fact that Rule 449 contains no time frame for the filing of an application made under it is not a licence for bringing the application anytime without seeking condonation.

I agree.

There appears to exist a misconception among legal practitioners that Rule 449 provides a gas station for all those who have failed to act timeously to re-fuel and breathe life into a cause that has run its course.

It was never the intention of the framers of the Rules that there must exist a remedy for eternity.

The policy of the law is that there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It is for that reason that society is intolerant to stale claims, generally, as a result of which a party that fails to enforce a right timeously, or within a reasonable time, loses the right altogether: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH503-15…,.

It ought to be appreciated that Rule 449 provides for discretionary relief to be granted or refused in the exercise of discretion by a judge or court.

The case of Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) is authority for the proposition that the court may, in the exercise of its discretion, dismiss an application made in terms of Rule 449 by reason of the inordinate delay in bringing it. At pp365H-366D this Court said:

“Even if the learned judge was wrong in deciding that the judgment granted by MTAMBANENGWE J was not erroneously sought or obtained, I consider that he was justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. After all, Rule 449 is 'a procedural step designed to correct, expeditiously, an obviously wrong judgment or order': per ERASMUS J in Bakoven's case supra at 471E-F: see also Firestone South Africa (Pty) Ltd v Genticuro AG supra at 306H.

In First National Bank of Southern Africa Ltd v Van Rensburg NO & Ors; In re First National Bank of Southern Africa Ltd v Jurgens & Ors 1994 (1) SA 677 (T) ELOFF JP (with whom VAN DER WALT and PREISS JJ concurred) stressed the important need to proceed rapidly in applications of this nature. He said at 681E-G:

'It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of court.

Persons affected by such orders should be entitled, within a reasonable time after the issue thereof, to know that the last word has been spoken on the subject.

The power created by Rule 42(1) is discretionary (see Tshivhase Royal Council & Anor v Tshivhase & Anor, Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852(A) at 862 in fine – 863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. A reasonable time in this case is substantially less than the three years referred to.'

I respectfully agree with these observations.”…,.

In my view, Rule 449 is not an open cheque to bring an application for rescission, even where it applies, at any time in the life of a person.

It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order.

Where, for some reason, the application is not so made, an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.

The court a quo cannot be faulted for upholding that preliminary point.

WHETHER THE APPELLANTS HAD LOCUS STANDI

The appellants sought rescission of judgment on the basis that it was induced by fraud and that they should have been consulted before any compromise was reached between the Government of Zimbabwe and the first respondent.

Their interest in the land, so they contended, lay in the sense that the land had long been acquired by the State, in 2001, and allocated to them about 2004.

According to the appellants, the first respondent had lost any rights in the land upon its acquisition in 2001, with the rights in the land having been transferred to them by the Government.

They asserted that the first respondent misled both the Government and the court a quo into believing that there existed agreements between it and the appellants when no such agreements were concluded.

A distinction must be drawn between locus standi to seek a rescission of judgment in terms of Rule 449 and the right to overturn a Deed of Settlement concluded between the Government of Zimbabwe and the first respondent.

In my view, the former is a procedural issue which can be determined on the preliminary arguments made before the court a quo. On the other hand, the latter is a substantive issue going to the merits of the case.

I entertain no doubt that any party affected by the judgment of the court, even when not cited in the proceedings, has locus standi to bring an application for the rescission of the judgement granted in its absence.

That is the furthest one can go.

As to whether, having made the application for rescission of judgment, the appellants made a case for such rescission, that is an issue going to the merits of the application and not locus standi to litigate.

In finding that the appellants had no locus standi to rescind the agreement the court a quo was deciding the merits of the case.

It was unnecessary to do so having upheld the other points taken in limine.

Our finding in that regard, however, does not assist the appellants in this appeal given that the upholding of the other points in limine by the court a quo cannot be faulted.

Regarding the question of the acquisition of the land, this court settled the issue of the legal effect of a section 5 Notice not pursued after being gazetted in the case of TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors SC13-18.

In that case, this Court stated that the effect of section 16B(2)(a) of the former Constitution, providing that all identified agricultural land vested in the State was to revive, resuscitate, and validate the acquisition of all identified agricultural land listed in the 7th Schedule of the then Constitution.

At p7 of the cyclostyled judgment BHUNU JA, writing for the court, stated:

“The language used in section 16(2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.”

That the land in question was acquired by the State in 2001 does not advance the appellants' appeal in any way. This is because the case was determined on preliminary points raised by the first respondent and not on the merits.

Even the contestation of the agreements allegedly concluded by the first respondent with individual occupiers did not yield any positive results for the appellants.

The first respondent presented evidence, in its opposing affidavit, which the court a quo accepted, to the effect that it had concluded agreements with the individual occupiers of the land for them to pay for it directly to the first respondent.

This may have annoyed the co-operative societies as they would have wanted the money paid to them.

Their annoyance, however, is of no moment in the administration of justice.

The finding made by the court a quo, that no fraud was proved, was a factual one based on its acceptance that indeed agreements had been made with the individual occupiers.

It is well settled that an Appellate Court will only interfere with the factual findings of the lower court where the decision is irrational to the extent that no sensible court could have made it.

That view was repeated in Shuro v Chiuraise SC20-19…, where the following passage appears:

“It is an established tenet of our law that an Appellate Court should be slow in interfering with the factual findings made by a lower court and that this should happen only where it is clear that the decision of the lower court is irrational, in the sense that no sensible court, seized with the same facts, could have reached such a conclusion…,.

In short, an Appellate Court can only interfere with the findings of a lower tribunal where it is convinced that the findings by the lower court are not supported by the evidence or are otherwise irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).”

It has not been shown that the findings of the court a quo are irrational or that they are not supported by evidence.

Quite to the contrary, the court a quo considered the evidence and found no fraud as it certainly was not there. No basis for interference has been established.

DISPOSITION

None of the grounds of appeal, in terms of which the appeal was motivated, have merit.

Clearly, this is a case of disgruntled illegal land occupiers who are frustrated by the decision taken by the Government to intervene and restore order and sanity in the allocation of land for urban settlement.

There is no basis in law for reversing the lawful acquisition of land, and the agreement as to compensation, which resulted in the consent order sought to be impugned.

The appeal is lacking in merit. There is no reason why the costs should not follow the event.

Accordingly, it be and is hereby ordered that the appeal is dismissed with costs.

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

The applicants have jointly approached this court for an order in the following terms:

“That the confirmation of the liquidation and distribution account by the third respondent, in respect of Shagelok Chemicals (Private) Limited (in liquidation), be and is hereby set aside.

That the third respondent be and is hereby directed to re-open the account referred to above for inspection for a period of fourteen (14) days with effect from the date of judgment in this matter.

It is hereby declared, that, the exchange rate to be applied regarding any conversion of foreign currency on applicants claim regarding Shagelok Chemicals (Private) Limited (in liquidation) is the going rate on the date of payment.

That the first and second respondents, jointly, pay the costs of suit on a legal practitioner client scale.”

The background to this application is based on the following facts:

On 23 August 2003, the applicants jointly petitioned with this court that a company called Shagelok Chemicals (Private) Limited be placed under liquidation. The first respondent was appointed liquidator for the process of liquidation of Shagelok Chemicals (Private) Limited.

At a creditors meeting held before the third respondent (the Master of the High Court) the applicants proved claims as follows -

(i) US$1,600,000 for the first applicant; and

(ii) US$1,944,757=70 for the second applicant.

In the execution of his duties, the first respondent disposed of assets belonging to Shagelok Chemicals (Private) Limited, and, from the proceeds, paid out the creditors proven claims.

The second respondent dispatched cheques in the sums of Z$35,789,794=20 for the first applicant and Z$36,338,172=05 for the second applicant.

The applicants returned the payments on the grounds that the second respondent had erred by using a conversion rate against the US Dollar which was prevailing at the time of liquidation instead of the rate prevailing when payment was actually effected.

To this end, the applicants were therefore seeking that the court grant the order to have the distribution account re-opened and for the re-calculation of the Zimbabwe dollar equivalent of their claims.

The fourth to seventh respondents were concurrent creditors in the liquidation process. They have not responded to the application. The Master of the High Court has not filed any papers in response to the order being sought.

The respondents have, in addition to opposing the matter on its merits, raised preliminary issues which I must dispose of before I delve into the merits of the application.

(i)...,.

(ii)...,.

(iii) The respondents have questioned the nature of the relief sought by the applicants, and, whether if what is sought is a review, the applicants have complied with the High Court Rules in so far as time limits relating to reviews are concerned and the requirements of the Rules insofar as the form of the application is concerned.

The applicants are of the view that what they seek is not a review but an order setting aside the confirmation of the liquidation and distribution account.

The application is predicated on the manner in which the first respondent is alleged to have performed his duties as a liquidator of Shagelok Chemicals (Private) Limited and it is obvious, therefore, that the applicants can only rely on the provisions of the Companies Act for whatever relief they seek.

The effect of placing a company in liquidation is to replace contractual rights that existed prior to liquidation with special rights created and governed by the Companies Act [Chapter 24:03] (the Act): see Central Africa Building Society v Pierce 1969 (1) SA 445 (RAD).

The rights of creditors against a company in liquidation are derived from the provisions of the Companies Act and it follows, therefore, that the applicants must look to the Companies Act in seeking redress in the event that the first respondent has not performed his duties as is required of him by the Companies Act.

Strangely, the applicants have not referred to any provision in the Companies Act on which they seek reliance. It has been left to the respondents to point to the pertinent sections of the Companies Act which would be operable in the circumstances.

According to the respondents, the right sought to be exercised by the applicants is derived from section 283 of the Companies Act, and, further, that the procedure for the exercise of those rights has been prescribed in terms of the Companies Act. Therefore, contend the respondents, the applicants should have followed the outlined procedure in seeking to have those rights enforced by this court.

Critically, the respondents argue, the applicants ought to have proceeded by way of a review, which they have not done, and, further, that it is not clear what procedure they have adopted in seeking redress.

The Companies Act, in section 296, provides as follows:

"(1) Any person aggrieved by any decision, ruling, order, appointment, or taxation of the Master under this Act may bring the same under review by the court and to that end may apply to the court, by motion, after due notice has been given to the Master and to any person whose interests are affected: Provided that where the general body of creditors or contributors is affected, notice to the liquidator shall be notice to them.

(2)…,. not applicable

(3) Nothing in this section shall authorize the court to re-open any duly confirmed account or plan of distribution or of contribution otherwise than as provided for in section two hundred and eighty three."

Apart from providing for the bringing of a review of the decision of the Master of the High Court under the said section, the Companies Act does not make provision for the manner in which the review proceedings must be launched.

The High Court, in the exercise of its functions has made provision for Rules of Court which govern its procedures. It stands to reason, therefore, that the proceedings for review have to done in accordance with those Rules as the Companies Act does not provide for the procedure to bring the decision of the Master of the High Court for scrutiny under a process of review.

Accordingly, the applicants were obliged to comply with Order 33 Rule 259 of the High Court Rules, which requires that an application for review be brought within a period of eight weeks from the date on which the suit, action, or decision being complained of occurred.

In casu, the Final Liquidation and Distribution Account, which is the subject matter of these proceedings, was confirmed by the Master of the High Court on 29 September 2004. The applicants became aware of the decision on 4 October 2004 - yet it was not until 18 November 2005 that an application to have the decision to confirm the account set aside was launched.

Clearly, the applicants are out of time in so far as the review of the confirmation of the account is concerned.

They have not, as one would have assumed, sought condonation for the failure to abide by the provisions of Order 33 despite an indication in the opposing papers that the application was out of time insofar as the Rules were concerned.

I am inclined to think, that, in approaching this matter, the applicants and their legal practitioners did not have recourse to the Companies Act, because, if they had, they would have noted that the correct way of seeking redress was by filing an application for review. Their failure to do so can only mean they had not read the Companies Act.

The re-opening of an account, in terms of the Companies Act, is provided for in terms of section 283. The relevant portions of the section are in the following terms:

"When an account has been open to inspection as herein-before prescribed and -

(a) No objection has been lodged; or

(b) (not applicable)

(c) (not applicable)
the Master shall confirm the account and his confirmation shall have the effect of a final sentence, save as against such persons as may be permitted by the court to re-open the account before any dividend has been paid thereunder."

As matters stand in this application, all the creditors have been paid, and, in fact, as pointed out by the respondents, the account was confirmed some fourteen or so months before the applicants thought of launching these proceedings.

There is no doubt, that, the section precludes the reopening of a final distribution account where there has been payment of a dividend. The court is allowed to open an account where no dividend has been paid.

In this jurisdiction, the question has not yet come up for discussion by the court. I am therefore indebted to the respondents for providing the court with an authority from South Africa.

In Wispeco v Herrigel NO and Another 1983 (2) SA 20 (CPD), the court therein had to consider an application for the re-opening of an account in an insolvent estate. The applicant, one of the creditors to the estate, had submitted an account which had been accepted. The claim was presented as a preferent claim as it had been secured by a general covering cession and pledge but when the claim was submitted to the Master by the trustee it was reflected as a concurrent one.

A query was raised with the trustee who gave an explanation to the Master.

The account was thereafter advertised for inspection but no objections were lodged, and, accordingly, the Master confirmed the account.

An hour after such confirmation, it became known to the applicant that the account had been confirmed and that cheques for dividends had been prepared and sent out for posting to the creditors.

The applicant filed an application for a rule nisi for the respondents to show cause on the return day why the confirmation of the account should not be set aside and for the account to be re-opened.

At issue in the application was the meaning to be ascribed to section 112 of the Insolvency Act 24 of 1936 of South Africa which provided, that, when a trustee account had been open to inspection by creditors and no objection had been made, or having been made, the account was amended or an objection, once made, had been withdrawn, then, the Master shall confirm such account and that such confirmation shall be final save as against a person who may have been permitted by the court, before any dividend has been paid under the account, to re-open it.

The provision is almost identical to our section 283 of the Companies Act [Chapter 24:03].

After reviewing a number of authorities, the court found, that, once a dividend had been paid under an account the court was precluded from re-opening the account….,.

In so far as the payment of the dividend is concerned, it matters not whether payment has been made to one or more creditors - once a payment having been made, the court is precluded from opening the account.

I have not been able to have sight of MARS, The Law of Insolvency on which reliance was sought by the respondents in opposing the application.

I have had occasion to peruse The Law of Insolvency by CATHERINE SMITH, 3rd Edition. At p272 of her book, the learned author states, that, once a dividend has been paid under an account, the court is precluded from reopening the account. The learned author goes further to state:

"The intention of the legislature was to ensure that once an account has been confirmed, without objection, prior to confirmation, and a dividend has been paid, the trustee should not be put in a position, subsequently, of having to try to recover that dividend from those to whom he has made distribution as required of him by the Act.

There must be actual payment of a dividend, and such payment has not taken place where dividend cheques, although posted to creditors, were stopped by the trustee; accordingly, a creditor was not precluded from applying for an order for the re-opening of an account by the mere posting of cheques by the trustee.

One cannot ignore the confirmation of the account and the payment of dividends.

The extent of the relief which can be granted in terms of section 111 is limited; it grants an aggrieved party the right to contest the Master's decision prior to confirmation of the account and payment of dividends. After confirmation and payment of dividends, the court has no power to grant the relief envisaged in section 111(2)(a) read with section 112."

As I have already indicated above, the applicants did not attempt to invoke the provisions of the Companies Act in seeking redress herein. They have applied for an order for restitutio in integrum on the basis that there is a just cause for the relief being sought.

Despite this matter having arisen as a result of the perceived irregularities in the manner in which the liquidator performed his duties, they have completely overlooked the provisions of the Companies Act and whether or not such relief is provided in the Companies Act.

The authorities that they seek to rely are not, in my view, apposite to the resolution of this matter.

The case of Uzande v Katsende1988 (2) ZLR 47 (H) concerned an application for rescission of a judgment granted in default and the court had to consider what constituted just cause for the granting of the application for rescission.

The case of RB Ranchers v Estate Mclean 1985 (2) ZLR 24 is also of no assistance to the application as the court did not go into the criteria for the re-opening of an account. The court focused on the alleged breach of contract, implied terms in the contract, and the payment of cheques under the Bills of Exchange Act [Chapter 277].

In Barclays Bank of Zimbabwe Ltd v Sheriff of Zimbabwe & Anor 2000 (2) ZLR 143 (S) the court had to consider an appeal on the issue as to whether it was permissible for a court, and, if so, in what circumstances, to set aside a plan of distribution prepared by the Sheriff subsequent to a sale in execution, after confirmation by the Sheriff of such account and implementation thereof in terms of the Rules.

In considering the appeal, GUBBAY CJ had recourse to cases on insolvency and acknowledged that the principles applicable to the confirmation of distribution accounts in the Law of Insolvency served as a guideline.

In Central Africa Building Society v Pierce N.O. 1969 (1) SA 445…, his LORDSHIP, BEADLE CJ stated thus:

"…,. There is no doubt that under the provisions of section 250 of the Companies Act [Chapter 223], the confirmation of a distribution account has the effect of a final sentence; it has precisely the same effect as a judgment of a court, and, before another court can go behind such a judgment, an application must be made to have it set aside."

Before, therefore, the distribution account can be set aside it must be re-opened, and the applicants can only have it re-opened in terms of the Companies Act.

The court is precluded, in terms of the Companies Act, from reopening an account once a dividend has been paid.

The purpose of the Companies Act is to provide for a speedy liquidation and distribution of monies to creditors, which is why the court is, in terms of the Companies Act, precluded from re-opening the accounts once there has been confirmation of such by the Master of the High Court. Before payment, a person wishing to have an account has to show that his failure to object to the account was induced by justus error or by fraud.

Once an account has been confirmed by the Master, it has the effect of a final sentence and cannot be re-opened by the court under the provisions of the Companies Act.

The question as to whether there could be merit for the re-opening of the account on the grounds of a restitutio in integrum do not here arise due to the clear provisions of the Companies Act in prohibiting the reopening upon the confirmation of the account and payment of any dividend.

For purposes of this matter, it is not necessary that I determine whether or not those grounds would have assisted the applicants, in view of the finding that the payment of a dividend precludes the court from re-opening the account.

The court, in fact, has no discretion to re-open the account once the dividend has been paid. The application for the re-opening of the account is therefore not properly premised.

The parties have gone into the issue whether or not concursus creditorum had been reached.

Having determined that the court has no discretion to re-open the account, I do not see how I can go ahead to determine the question of concursus creditorum. That issue would, in my view, arise if I had found that it was necessary to re-open the account. A finding that the account cannot be re-opened is, in my view, the end of the matter. To go into the question of concursus creditorum would, in the circumstances, be to embark on an exercise for the sake of the same.

That is not, in my view, necessary in this matter.

The application was not well taken and is hereby dismissed. The applicants are ordered to pay the respondents costs.

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Law Portal
Zimbabwe

Final Orders re: Nature, Amendment, Variation, Rescission iro Common Law Rescission & Consideration of Restitutio In Integrum

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

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Law Portal Zimbabwe

Final Orders re: Nature, Amendment, Variation, Rescission iro Common Law Rescission & Consideration of Restitutio In Integrum

Appealed SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: PATEL JA, BHUNU JA and BERE JA

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD Ruled By: NDOU J

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS Ruled By: GOWORA J

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Law Portal
Zimbabwe

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J