KAMOCHA J: On
15 January 2009 a default judgment was granted by this court to the present
respondents, who were then applicants, in the following terms:-
“It is hereby ordered that:-
(a)
The
notice gazetted by 1st respondent on the 26th of
September 2008 purporting to acquire certain piece of land situate in the
District of Bulawayo, being the remaining extent of Broad Acres, measuring one
hundred and forty-five comma eight five six four (145,8564) hectares held under
Deed of Transfer Number 2815/83 and registered in the names of the late
Christopher Gutherless and Marie Elizabeth Gutherless be and is hereby declared
unlawful and invalid to the extent that such action is in breach of the terms
of the Certificate of No Present Interest issued in favour of 1st
applicant on 4 September 2008 pursuant to the provisions of section 47 of the
Land Acquisition Act [Chapter 20:11].
(b)
In
consequence, leave be and is hereby given to 1st applicant to
proceed with the transfer of the said piece of land in favour of 2nd
applicant pursuant to the terms of the agreement of sale executed and signed by
the parties on 19th September 2008.
(c)
The
Registrar of Deeds be and is hereby authorized and directed to register the
Deed of Transfer in favour of 2nd applicant.
(d)
Pursuant
to the above, 2nd respondent together with all those claiming
through him be and is hereby ordered to vacate the aforesaid piece of land,
forthwith and to give vacant possession thereof in favour of 1st
applicant to enable the latter to give vacant possession thereof to 2nd
applicant in terms of the agreement of sale executed and signed by the parties
on 19th September 2008.
(e)
Should
2nd respondent fail to vacate the aforesaid piece of land as
provided for above, the Deputy Sheriff of this honourable court be and is
hereby authorized and directed to forthwith evict 2nd respondent
together with all those claiming through him from the aforesaid piece of land.
(f)
The
costs of this application shall be borne by 1st and 2nd
respondents jointly and severally, the one paying the other to be absolved, on
the legal practitioner and client scale.”
On 26 January 2009 the present applicant who was the second
respondent in the above matter filed an application under a certificate of
urgency seeking to interdict the then applicants from executing the warrant of
execution under case number 2348/09 pending the finalization of the application
for rescission filed simultaneously with the urgent application under case
number HC 127/09. In the event that
execution had already been effected the Deputy Sheriff would be ordered to
restore to the applicant vacant possession of Plot 6 Airport Road, Bulawayo.
The urgent application was dismissed
with costs on 29 January 2009 and the full reasons for the dismissal are
contained in judgment number HB-33-09.
Thereafter the application for rescission which had been simultaneously
filed with the urgent application seems to have been abandoned. It has not been prosecuted up to this day – a
period of over a year and half. It has
not been withdrawn but is still pending in this court.
Instead the applicant has launched
the present application wherein he seeks an order in the following terms:-
“It is ordered that:-
1.
It
be and is hereby declared that the compulsory acquisition of land by the
Government of Zimbabwe under the Agricultural Land Settlement Act [Cap 20:01]
after the 8th of July 2005 is not, in terms of the Constitution of
Zimbabwe Amendment Act No. 17/2005, justiciable except insofar as a challenge
may be made regarding the amount of compensation payable.
2.
It
be and is hereby declared that the jurisdiction of the courts of the land to
entertain challenges arising from the compulsory acquisition of land was as
from 8 July 2005 ousted by the Constitution of Zimbabwe Amendment Act No.
17/2005.
3.
It
be and is hereby declared that any judgment or order by a court in which the
compulsory acquisition of land by the Government of Zimbabwe under the
Agricultural Land Settlement Act is under challenge would be void and of no
force and effect.
4.
The
respondents jointly and severally pay the cost of this application, the one
paying the other to be absolved.”
It is clear from the order being sought that the applicant is
asking this court to make a declaratory order against its own decisions. He relied on section 14 of the High Court Act
[Chapter 7:06] which provides that:-
“The High Court may, in its discretion, at the instance of
any interested person inquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
With respect, the above provisions
do not enjoin the High Court with the powers to make declaratory orders in
respect of its own decision. It cannot
sit as a review court over its own judgment.
It is functus officio. Having abandoned the rescission of the court
order, the applicant cannot have the judgment declared invalid or void by the
same court which granted it. It is only
a superior court which could do that i.e. the Supreme Court. The matter of Bulawayo Bottlers (Pvt) Ltd vs Minister
of Labour & Others 1988 (2) ZLR 129 on which reliance was placed
related to a decision made by a regional hearing officer of the Labour
Court. The High Court had discretion to
make a declaratory order in such a case.
All that the applicant is trying to do in this case is to
have this court set aside its order of 15 January 2009 without utilizing the
application for rescission procedure.
That would be incompetent as the court does not have jurisdiction to
review its own decisions other than by way of application for rescission.
Having arrived at this conclusion the need to deal with other
issues raised in the application does not arise. In the result, I would dismiss the
application with costs on the ordinary scale.
Messrs Majoko and Majoko, applicant's legal practitioners
Magwaliba and Kwirira, 1st
and 2nd respondents' legal practitioners
