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Final Orders re: Nature, Amendment, Variation, Rescission iro Corrections and Orders Erroneously Sought or Granted

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

This is an application for the rescission of a judgment of my own that I gave on 24 September 2009 in favour of the applicants regarding the legality of the registration of various mining claims in the names of the applicants. It is important that I set out the order which I gave then ...
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HH22-09 : JONAH MUFUNDISI vs GLORIA RUSERE
Ruled By: BERE J

It must be accepted that judges are not endowed with the gift of infallibility. They often make mistakes and once such mistakes are noted, they must be addressed at the earliest possible opportunity to avoid perpetuating a miscarriage of justice. Rule 449 is one such rule which a judge can invoke in order to do ...
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HH118-12 : CHIPO MUUSHA vs GIFT SARUCHERA and REGISTRAR OF THE HIGH COURT
Ruled By: UCHENA J

The officer in the Registrar's office clearly wrongly interpreted the court's order by giving the impression that the time limits imposed therein were of no consequence. He wrongly extended the time which the respondent was to act..., disregarding the time limits imposed by the judge who granted the order. He has no authority to ...
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HH194-12 : STIRCRAZY INVESTMENTS (PVT) LTD vs A LUCKY BRAND (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

This is an urgent application for provisional relief staying execution of a judgment of this court granted on..., pending the hearing of a rescission of judgment application which has been filed by the applicant. It is not clear from the rescission of judgment application..., whether the application is made in terms of Rule 63(1) or Rule ...
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HH136-09 : GIBSON CHAMBOKO AND MR CHAMBOKO SNR AND CHANCE THOMAS RWODZI vs PATRICK JOHN STOOKS AND P J STOOKS (PRIVATE LIMITED)
Ruled By: MAKONI J

Case numbers HC 2190/09 and 2224/09 were heard simultaneously under judgment number HH115-09. Judgment was handed down on 21 October 2009. Immediately after handing down of the judgment, I realised that although I had dealt with the merits of both matters in the body of the judgment, I had only disposed of case number HC ...
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HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

The applicant now seeks an order for the variation of the order in HC 7136/2003.
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HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

In the result, it is ordered as follows – 1. The Order of the High Court of Zimbabwe of 18 March 2004 in 7136/2003 be and is hereby amended by the deletion in clause 6(a) thereof of the words “5th” and “February 2004” and “$400,000= (four hundred thousand dollars)” and the substitution in place thereof of ...
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HH155-09 : VAIDA SIBIU vs BLANTINA BAMU and ELLISON MUKANDI and CHARITY MUKANDI and MARGARET BAMU and THE REGISTRAR OF DEEDS
Ruled By: MAKONI J

The applicant seeks an order, in terms of Rule 449 of the High Court Rules, to set aside the judgment granted by MUSAKWA J in HC 6669/07....,. The applicant attacks the judgment mainly on two grounds. The first is that the applicant was not cited as a party in HC 6669/07. The second ground is that ...
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HH155-09 : VAIDA SIBIU vs BLANTINA BAMU and ELLISON MUKANDI and CHARITY MUKANDI and MARGARET BAMU and THE REGISTRAR OF DEEDS
Ruled By: MAKONI J

There is case law that in looking at an application for rescission of judgment, in terms of Rule 449, the court can have regard to factors which were not before the court that granted the order being sought to be rescinded. In view of that, it is my finding that the applicant has no succeeded, ...
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HB11-09 : CATHERINE NDLOVU and ESTATE LATE MELODY MABHENA Duly represented by CATHERINE NDLOVU N.O. As Executrix Dative vs MALUNJWA NKOMO and REGISTRAR OF DEEDS N.O.
Ruled By: CHEDA J

This is an application to set aside, vary, or correct the judgments under case numbers HC 1577/04; HC 2733/04; HC 913/03; and HC 4007/04. It is the applicant's contention that these orders should be interfered with in a suitable and appropriate manner as provided for by Order 49 Rule 449. Basically, this Rule provides for a ...
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HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

It is trite that a final judgment cannot be easily set aside. It is settled that a court will only set aside its judgment if certain limited circumstances are alleged and proved. These are error, fraud, discovery of new documents or crucial evidence, and procedural irregularity. The applicant in this case has made a very casual invitation ...
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

The first respondent further argued that the Order that she obtained from this court in the main matter must take precedence over all other processes that the applicant took in allegedly acquiring rights in the property. It is her case that until that Order is set aside, the applicant cannot assert rights to the property as ...
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

In resolving this matter, I have taken a rather simplistic approach to this dispute. It appears to me that that the provisional order granted by this court on 12 June 2002, and confirmed in August 2002, cannot stand. It was erroneously sought in the absence of the applicant who was, by then, known to the first ...
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HH29-10 : PRODUTRADE (PVT) LTD vs CONTINENTAL BAKERIES (PVT) LTD and MUNYUKI ROBERT CHIKWAVIRA
Ruled By: CHATUKUTA J

On 19 July 2006, the applicant obtained judgment in this Court in Case No. HC2433/2005 in the sum of $485,316,000=. The order provided for interest in the following terms: “Interest is due on the above amount at the prevailing overdraft interest rate as quoted by Stanbic Bank Limited.” On 10 September 2007, the applicant filed the present ...
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HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

The decision of the Supreme Court of Malawi was handed down on 11 September 2007. There is no appeal against that decision, and it is a final judgment which the defendant has not satisfied.
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SC41-13 : AUSTIN MUNYIMI vs ELIZABETH TAURO
Ruled By: CHIDYAUSIKU CJ, GARWE JA and OMERJEE AJA

The appellant in this case applied, before the High Court, for an order declaring one January Tauro, Elizabeth Tauro (the current respondent), and Fransisco Tauro, to be in contempt of court, and, as a consequence, that they be committed to prison until such time as they would have purged their contempt. The court a quo ...
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SC19-15 : FEXEN MPANSI and EDWARD DUBE and JABULANI DUBE and VINCENT DUBE and THOMAS MPANSI vs MORGAN DUBE and THE MASTER OF THE HIGH COURT and WILBERT NYAMUFUKUDZA N.O.
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

This is an application for the correction or variation of the order issued by the Supreme Court under SC161/09 on 16 July 2011 allowing the appeal by the applicants (then appellants), on the basis that the order is ambiguous. The application was filed under the same case number as the original appeal. The impugned ...
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HH17-11 : GRACE MAHACHI vs SMALLHOLDER MICRO-IRRIGATION DEVELOPMENT SUPPORT PROGRAMME (C/O MINISTRY OF FINANCE)
Ruled By: MUTEMA J

On 8 September 2010, I erroneously granted an order, following a chamber application, registering an arbitral award in favour of the applicant against the Ministry of Finance as if the correct respondent was Smallholder Micro-Irrigation Development Support Programme. The Smallholder Micro-Irrigation Development Support Programme is donor-funded by the European Development Fund.Subsequent to the registration of the ...
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HH150-11 : ECONET WIRELESS (PRIVATE) LIMITED vs RENAISSANCE FINANCIAL HOLDINGS LIMITED and REGGIE SARUCHERA (in his Capacity as the Curator of RENNAISSANCE MERCHANT BANK LIMITED)
Ruled By: MAVANGIRA J

The applicant filed this urgent chamber application seeking a Provisional Order in the following terms as amended: TERMS OF FINAL ORDER SOUGHT “1. In the event of the respondents failing to discharge all of their obligations towards the applicant, including the payment of all capital amounts due and owing to the applicant together with all ...
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HB16-11 : NATIONAL BLANKETS LIMITED vs ZIMBABWE TEXTILE WORKERS UNION
Ruled By: MATHONSI J

In this matter, I granted an order in favour of the plaintiff and against the defendant on the 25th November 2010 in motion court. This followed a default judgment application made in terms of Rule 58 of the High Court of Zimbabwe Rules, 1971. The plaintiff instituted proceedings against the defendant out of this court ...
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HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

In this application, the applicant seeks the following relief:“1. The respondents be and are hereby held to be in contempt of this Honourable Court Order granted on 19 May 2009.2. The respondents be and are hereby incarcerated for a period of ninety (90) days each.3. Costs of this application shall ...
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HB15-10 : TIMOTHY SIJIYE vs MFANUKHONA PHIRI and DAVID MPOFU and TAKATSO MPOFU
Ruled By: KAMOCHA J

The applicant was not a party to the proceedings relating to the two judgments. He, however, seeks to rely on the provisions of Order 49 Rule 449(1)(a) of the Rules of this court. The second point was that the applicant was not entitled to have recourse to the provisions of Order 49 Rule 449(1)(a) of the ...
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HB158-11 : LOMATHEMBA SONGO N.O. and LOMATHEMBA SONGO vs SILINDA SONGO and HLANGOTHI MSIMANGA and MANDLENKOSI SONGO and CITY OF BULAWAYO and REGISTRAR OF DEEDS and DEPUTY SHERIFF
Ruled By: KAMOCHA J

Lomathemba Magadlela Songo is the widow of the late Sindiso Songo and was appointed executrix of her late husband's estate. The first respondent, Silinda Songo, is the father of the deceased while the second and third respondents are his brothers. On 31 January 2005, the first, second and third respondents, hereinafter referred to as “respondents,” wrote ...
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HB49-10 : SUPERINTENDENT ERNEST HUNGWE vs COMMISSIONER GENERAL AUGUSETINE CHIHURI and SERGEANT ONISMAS MAWEREZA
Ruled By: CHEDA J

This is an application for setting aside a provisional order granted by this court on 13th May 2010 on the basis that the said order was erroneously granted in the absence of the affected party.
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HB104-10 : THENJIWE NDLOVU vs VISION SITHOLE and CITY OF BULWAYO and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

As already pointed out the default judgment of the 12th November 2008 was granted on the strength of what was perceived to be a Deputy Sheriff's return of service.The Deputy Sheriff has submitted documents, and, indeed, affidavits disowning that return of service.The return of service in question was allegedly signed by L. Muguto on ...
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HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO
Ruled By: MATHONSI J

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 ...
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HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

The second issue is whether or not I should grant the application to correct the order granted in case no. HC59/05. I now turn to the application to correct the order in case no. HC59/05. I am of the view that it is competent for me to consider the correction of the order in terms of ...
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HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

While this application for rescission of default judgment was made in terms of Rule 63 of the High Court Rules 1971, the applicant argued, in the heads of argument, that this default judgment should be set aside in terms of Rule 449(1)(a) of the High Court Rules which provides for the setting aside or ...
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HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE
Ruled By: MAKONI J

Rule 449 allows this court either mero motu or upon the application of any party affected, to correct, rescind, or vary any judgment or order, inter alia, that was erroneously sought or erroneously granted in the absence of a party affected thereby. The purpose of the Rule, as stated by SANDURA JA in ...
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HH130-13 : CLEMENTS MOMBERUME vs MARANGE APOSTOLIC CHURCH OF ST. JOHANNE and DAVISON SHONHIWA N.O. and MASTER OF THE HIGH COURT and DEPUTY SHERIFF OF MUTARE
Ruled By: CHITAKUNYE J

In his letter to the Registrar dated 30 May 2007 the respondent's legal practitioner acknowledged that as at that date he had received a court order with three clauses. He deemed it not reflective of the order granted in court and so requested the Registrar to correct the 'error'. In his letter dated 9 ...
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HB22-11 : WILLIAM NGWENYA vs STELLA MATONGO and VAINA MOYO and MAQHAWE MATHE and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

The applicant sought the rescission of a judgment to which he was not a party. The only way he could have done so was in terms of the provisions of Order 49 Rule 449(1)(a) which provides:- “(1) The court or a judge may, in addition to any other power it or he may have, mero motu ...