The late Rose Dziruni filed an
application in this matter under case number HC4028/04 against the respondent
seeking an order compelling transfer of Stand Number 2703 Bulawayo Township
also known as Number 16, 18th Avenue, Famona, Bulawayo in pursuance
of a Sale Agreement entered into between the parties on 4 June 2001.
The application was opposed by
the respondent and was not set down for argument until the late Rose Dziruni
died on 6 July 2008. Her son, Obvious Dziruni was appointed executor of the
estate of the late Rose Dziruni on 30 September 2008.
Prior to that, on 17 January
2007, the respondent had made a chamber application in this court, under case
number HC66/07, seeking an order for the dismissal of the late Rose Dziruni's
application in case number HC4028/04 for want of prosecution.
Rose Dziruni, who was then alive,
had strongly opposed that application arguing, inter alia, that she had
failed to effectively prosecute her application because the respondent had
failed to provide an address for service after Messrs Lazarus and Sarif, who represented
him, renounced agency on 5 January 2006.
That application was not set down
for argument but the respondent, who did not know of the death of Rose Dziruni
aforesaid, made another chamber application, under case number HC29/09, seeking
an order granting him leave to set down case number HC66/07 on the unopposed
roll owing to Rose Dziruni's failure to file heads of argument in breach of
Rule 238(2a) as read with subrule (2b) of the High Court of Zimbabwe Rules,
1971. The order was granted on 16 January 2009.
In pursuance of that order, the respondent
set down matter number HC66/07 unopposed and obtained an order dismissing case
number HC4028/04 for want of prosecution on 25 June 2009. Effectively,
therefore, the respondent obtained two court orders against a dead person.
An application for the rescission
of the order made in case number HC66/07 was made under HC1225/09 and it was
opposed by the respondent who argued extraneously that the executor was
negligent in not informing his late mother's legal practitioners of the death
of Rose Dziruni.
The rescission of judgment
application was set down for hearing on the 12th October 2010 but
both parties did not appear in court. On further inquiry, it was discovered
that the applicant had filed a notice of withdrawal of the application on the 7th
October 2010 which had not found its way to the court record.
Having gone through the papers
filed of record, I was of the view that the two court orders made after the
death of Rose Dziruni against her, and without substitution of the executor,
had been made in error. I therefore desired to hear counsel on that point.
Counsel for the respondent was
notified that the matter had been moved to 14 October 2010 at 10am but chose
not to appear in court. Counsel for the applicant confirmed having withdrawn
the application but did not give any reason for doing so. The withdrawal of the
application was ill-advised and probably informed by the perception that the
application was out of time.
There was no merit whatsoever in
the opposition to the application.
The moment Rose Dziruni died, on
6 July 2008, proceedings in case number HC4028/04 could not continue until an
executor had been appointed and even after appointment of the executor, the
proceedings could only continue after the substitution of the executor as applicant
in that matter.
This was not done.
It follows that judgment could
not be taken against the deceased. Accordingly, the two orders of this court
made on the 16th January 2009 and the 25th June 2009 were
made in error. This court is empowered to, mero motu correct, vary or
rescind an order made in error. In terms of Rule 449 of the High Court of
Zimbabwe Rules 1971 -
“(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)That was granted as the result
of a mistake common to the party.”
Having discovered the error made
in granting the orders I have referred to, I am entitled, mero motu, to
rescind those orders.
The orders in question cannot
stand at all because they were sought and granted as a result of a mistake
common to both the respondent and the court. The assumption was that Rose
Dziruni was still alive, when she was deceased, at the time, and an executor
had not been substituted.
Although the applicant withdrew
the rescission of judgment application, Rule 449 empowers me to rescind an
order made in error - and that is exactly what I intend to do.
It is amazing that the respondent
saw it fit to oppose the rescission of judgment application when it was pretty
obvious he had erroneously sought an order against a dead person and the court
had also wallowed in the same error. If the application had not been withdrawn
the respondent would have been visited with punitive costs…,.
In the result I make the
following order; that
1. The orders of this court made
in Case No. HC66/07 on 25 June 2009 and in Case No. HC29/09 on 16 January 2009
be and are hereby rescinded.
2. …,.
3. Each party shall bear its own costs.
