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 449(1)(a) of the High Court Rules, 1971. However, in that application, the applicant does allude to the fact that there is no legal basis for the Registrar of this court to issue a writ of execution against its property in light of the appearance to defend filed and that default judgment should not have have been entered at all. This, therefore, suggests that the application fits under an application made in terms of Rule 449(1)(a) on the basis that the judgment "was erroneously sought or erroneously granted in the absence of any party affected thereby."

The genesis of the matter is that the first respondent instituted summons proceedings against the applicant in case number HC..., which summons was served upon the applicant. Five days later..., two days into the dies inducae, the applicant entered appearance to defend and signed in the appearance book at the registry in terms of Rule 48. Written notice of the appearance was stamped by the Registrar on that date but was not given to the first respondent or its legal practitioners, it having been directed to a wrong set of legal practitioners. Unaware of the appearance the first respondent moved for judgment...,.

The legal practitioner for the first respondent conceded that the judgment was granted in error and that if the appearance had been brought to the attention of the judge, judgment would not have been granted.

ROBINSON J had occasion to deal with a similar matter in..., where appearance had been entered before default judgment was given, but a copy of the notice had not been served on the respondent's legal practitioners in terms of Rule 49. The learned judge stated...., quoting HERBSTEIN AND VAN WINSEN, with approval:

"In..., Herbstein and Van Winsen.., state as follows..., under the heading "When Notice (of Intention to Defend) is Irregular":

(b) A notice of intention to defend will also be irregular if the defendant having filed the original notice with the registrar fails to serve a copy on the plaintiff or his attorney.

On the analogy of the former Cape practice (which, I would add, is the practice which was followed by our courts) and which, in terms of Cape r17(3), required the defendant to give notice in writing of entry of appearance to the plaintiff or his attorney, it is submitted that in the event of such failure the plaintiff will be entitled to assume that notice of intention to defend has not been given. If, however, he does so, and moves for judgment, the court will not grant judgment, but will order the defendant to pay the wasted costs occasioned by his omission."

The court in that matter went on..., to say;

"In my view, when considering the question of rescission of a default judgment under r449(1)(a) on the ground that it was "erroneously granted in the absence of any party affected thereby"; once the court finds, as it has in this case, that the judgment was erroneously granted against the defendant, either because of an error on the part of the judge before whom the application for default judgment was placed in failing to observe the notice of appearance to defend contained in the court file, or as is more likely, because of the absence of the notice of appearance to defend in the court file through delay of the Registry staff in placing the notice in the court file, then that is an end of the matter and the court should rescind the judgment as I therefore intend to do in this case." 

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 2224/09, I had omitted to give an order in respect of HC 2190/09. I then invited the parties counsel to chambers and advised them of the fact.

They both consented to the correction of the judgment in HH115-09 for completeness.

By consent of both parties, and using my inherent powers, I hereby correct the clear omission in HH115-09, in failing to dispose of HC 2190/09, by adding the following paragraph immediately after the penultimate para in HH115-09 –

In view of my findings above, I will grant the order as amended. I have amended para 2 of the draft order to give the applicants an opportunity to purge their contempt, failing which they will be incarcerated. I will not grant para 4 and 6 as they were not pursued in the heads of argument and in submissions.

Accordingly, it is ordered that –

1. The application in HC 2224/09 be and is hereby dismissed with costs.

2. The applicants are found guilty of contempt of this court.

3. The applicants are sentenced to imprisonment for a period of thirty days which is wholly suspended for a period of forty-eight hours to allow the applicants to purge their contempt, failing which the Registrar shall issue the necessary warrant of arrests, and shall send them to the Deputy Sheriff for immediate enforcement.

4. The fifth respondent is ordered to take immediate action to provide the Deputy Sheriff with effective support and assistance for the immediate enforcement of the order in HC 6215/08.

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 “5^th” and “February 2004” and “$400,000= (four hundred thousand dollars)” and the substitution in place thereof of the words “1^st” and “March 2009” and “US$500”.

2. The respondent shall pay to the applicant, in respect of arrear maintenance for the minor child..., the sum of US$318=50.

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.

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, on her papers, to establish a basis that the order was erroneously sought, and erroneously granted.

As a result, there is no basis for me to make a finding that the order was erroneously sought, and, therefore, erroneously granted.

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 rescission, variation, or correction of a judgment or order, where such judgment was granted as a result of gross irregularities or mistake common to all the parties.

Counsel for the first respondent has argued that there was no mistake common to all the parties. In other words, it is his contention that if there were any mistake, it was not to all the parties but to the applicant alone.

There have been many applications involving these parties, and it is clear that in case number HC 913/03 the full circumstances were not disclosed. The reason for non-disclosure, in my view, was to conceal certain issues whose disclosure would have resulted in the court deciding otherwise.

It is the court's duty to accord all litigants the opportunity to present their cases fully before them in order for them to arrive at a justifiable conclusion. The court will not allow a situation where one party behaves in a manner that will deprive the court to properly determine a matter in accordance with the dictates of justice. As stated above, there has been a series of applications involving the same parties', it is, therefore, only proper for case number HC 913/03 to be heard on the merits.

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 to the court to set aside the judgment under HC 1783/02. This invitation is in paragraph 9 of the applicant's heads of argument. He does not make the submission anywhere else in his papers. Nor does that request appear in his draft order. In the circumstances, there is no basis laid down upon which this court can set aside the judgment under HC 1783/02.

In other words, there has been no formal request for the court to interfere with that judgment.

The request, thrown in casually as it is in the applicant's heads of argument, is not competent. From the foregoing, the application cannot succeed.

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 the court has granted those same rights to her.

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 respondent, and had an interest in the rights and title attaching to the property in dispute. It was erroneously granted as it sought to divest rights that had been properly vested in the third respondent by virtue of intestate succession.

Rule 449(1)(a) of the High Court Rules, 1971, provides that an order, or judgment, may be set aside if it was sought, or granted, erroneously in the absence of a party affected by the order, or judgment.

The specific power is given to the court, or judge, by the Rules, in addition to the inherent power of this court to correct injustices.

I am aware that in the main matter the first respondent successfully challenged the falling of the property into the estate of the late Lekinala Moffat.

In the order obtained by the first respondent on the 17^th of July 2002, it was declared that the property did not form part of the estate of the late Lekinala Moffat...,. At the time, right in the property had already been ceded to the applicant. Had the applicant been served with the papers in the main matter, the court would have been appraised of the correct position regarding the property, and would not have made the orders it did.

I am also aware that the first respondent has argued that at the time the first respondent approached the court in June 2002, the applicant had not yet received cession of rights in the property in her favour.

In my view, this issue is neither here or there. Even if registration of cession in her favour was completed in September 2002, as alleged by the first respondent, this does not cure the defect that attaches to the order granted in favour of the first respondent in June 2002. She did not cite the applicant, who, by then, was in occupation of the property, and had taken steps to have cession in her favour registered.

She had an interest in the matter at the time, and she had the right to be heard before the order was granted.

Her absence at the hearing of the matter taints the entire proceedings which must be set aside simply on that basis.

In the result, I make the following order –

1. The provisional order granted in favour of the first respondent on 12 June 2002, and confirmed on 21 August 2002, is hereby set aside.

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 application seeking the following relief:

“1. That the applicant be and is hereby entitled to levy interest on the capital debt in Case No. HC1929/2005 from 4^th February 2005 to date of payment.

2. Costs on the legal practitioner/client scale (sic).”…,.

Before the applicant addressed me on the merits of the application, I queried the nature of relief that the applicant sought and whether or not the applicant had, in view of the judgment in Case No 2433/05, adopted the proper procedure.

Counsel for the applicant submitted that the applicant was seeking a declarator that interest was due from 4 February 2005 to the date of payment. He submitted that the applicant was not seeking a variation of the order in Case No. HC2433/05.

Counsel for the respondent submitted that the matter, and, in particular, the question of interest, had already been adjudicated on in Case No. HC2433/05. He submitted that the applicant was seeking a variation of the order. The applicant could only do so in terms of Rule 449 of the High Court Rules. He further submitted that as the applicant had adopted the wrong procedure, the application should be dismissed with costs.

Despite counsel for the applicant's submissions, it appears to me that counsel for the respondent is correct in stating that the effect of the relief sought by the applicant is a correction of the order granted on 19 July 2006. The question of interest was indeed determined in HC2433/05 and an order was granted by this court. However, it appears to me that there was an apparent omission as to the date when interest was to commence running. The applicant had clearly stated in its prayer, in the declaration, the date from which interest would commence running. The order is therefore incomplete and in-operative. It is for this reason that I am of the view that I can proceed to determine the matter in terms of Rule 449(1)(b). The Rule provides that:

“(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) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties”…,.

The court in HC2433/05 did not indicate, in the judgment, why the effective date when interest would run was not included. Had it so indicated, the matter would have been res judicata as contended by counsel for the respondent. It would have been difficult for this court to evoke its powers in terms of Rule 449. The silence in the judgment, and the order itself, appears to me to have been a clear omission.

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 order (per SANDURA JA with GARWE JA and CHEDA AJA concurring) reads as follows:

“1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and the following is substituted:

“Judgment is granted for the plaintiffs with costs to the extent that the will attested to by the late Richard Mpansi, and registered with the second defendant under LW47/2005, be and is hereby declared null and void.”

The applicants contended that the above order must be interpreted to mean that the first respondent is liable for costs in his personal capacity, or, alternatively, since he participated in the litigation in a representative capacity as a duly appointed executor, he should pay such costs out of his own pocket (de bonis propriis) as he had allegedly conducted himself grossly negligently and maliciously in defending the validity of the will. Accordingly, the applicants pray that the above order be “corrected” to read as follows:

“1. The appeal be and is hereby allowed with costs (to be) borne by the first respondent on a party/party scale.

2. The order of the court a quo is set aside and the following substituted:

“Judgment is granted for the plaintiffs with costs being borne by the first defendant on a party/party scale to the extent that the will attested by the late Richard Mpansi, and registered with the second defendant under LW47/2005, be and is hereby declared null and void.”…,.

The key issue is whether this matter is properly before this Court.

The applicants have approached this Court in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971….,.

Rule 449 of the High Court Rules provides that a court or judge may, in addition to any power it or he may have, mero motu or upon application by any party affected, correct, rescind or vary any judgment or order, inter alia, in which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error or omission.

The applicants submitted that the order of the Supreme Court lacks clarity and certainty as to whether the first respondent is liable to pay costs personally or whether such costs should be paid out of the estate.

That costs may be ordered against the estate is without doubt. However, such a special order of costs must be specifically pleaded, otherwise the ordinary rule that costs follow the event applies. The standard rule requires parties to pay costs in the capacities they participate in litigation based on the outcome of the matter. This rule applies even in legal proceedings involving deceased estates - unless special circumstances are invoked. In Bonsma v Meaker 1973 (4) SA 526 (R)…, the court observed as follows:

“While normally in legal proceedings instituted by or against a deceased estate the ordinary rule that costs follow the event applies, there are circumstances under which a person who is instituting proceedings against a deceased estate will, whether he is successful or not, be entitled to have costs made payable out of the estate. This can be the position not only where the validity or construction of a will is in dispute but also in matters arising from or concerning the administration of an estate.”

In my view, the Supreme Court order in question was crafted in line with the ordinary rule pertaining to costs. No special circumstances were alleged in earlier proceedings, both in the High Court and Supreme Court, necessitating a departure from the ordinary rule. No claim was made for the executor to pay costs de bonis propriis at any stage until now. There is no suggestion that this court omitted to deal with any issue that had been raised. In the circumstances, it is difficult, nay impossible, to conclude that the order in issue is vague or ambiguous in any way.

I  am  further  fortified  in  this  conclusion  by  an  examination  of  how  this case proceeded.

This matter commenced by way of court application at the High Court but because it was found that there were irreconcilable disputes of fact, the matter was referred to trial and subsequently ended up before the Supreme Court on appeal.

Of significance is the fact that at court application stage, the first respondent objected to his being cited in his personal capacity instead of his official capacity as the appointed executor. The applicants conceded the point and duly withdrew the matter against the first respondent in his personal capacity, tendering wasted costs. The matter then proceeded against the first respondent in his representative capacity of executor.

As a general rule, executors are only visited with personal costs in exceptional circumstances. The remarks of the learned authors, CORBETT, HAHLO, HOFMEYR and KALIN, The Law of Succession in South Africa, Juta & Co Ltd, 1980 are apposite. At page 601, they state:

“Having regard to the executor's duty to defend the will, if such defence is unsuccessful but was reasonable, the executor's costs will be ordered to be paid out of the estate as well as costs of the successful party. Generally, where an executor litigates in the interest of the estate and not in his own interests, he will not personally be mulcted in costs in the absence of circumstances making it desirable for the court to mark its disapproval of his conduct.”

No special order of costs against the first respondent was prayed for, either at the High Court or Supreme Court. In fact, in the draft order of the High Court application, the applicants did not ask for costs at all. Nonetheless, after a full trial the High Court issued a standard order of costs, thus:

“Accordingly it is ordered that:

1. The plaintiffs' claim is dismissed.

2. The plaintiffs' shall pay the first defendant's costs for both the application and trial jointly and severally the one paying the others to be absolved.”

In their Notice of Appeal to the Supreme Court, the present applicants (then appellants) sought the following relief:

“Appellants pray that the judgment of the court a quo be set aside with costs and be substituted by a judgment granting the relief sought by the appellants setting aside the contested will with costs.”

Once more, the applicants prayed for ordinary costs consequent upon a favorable outcome to them. That is precisely what the Supreme Court granted in the impugned order. There is nothing ambiguous about that order. 

Therefore, Rule 449 is not applicable….,.

As far as the costs of this application are concerned, there is no need to depart from the ordinary rule that costs follow the outcome since no special order of costs to be paid out of the estate has been made. However, counsel for the applicants indicated to this court that the value of the estate was so small that he has had to waive his fees and appear pro bono. It was not clear whether his commendable gesture applied only to this application or to the whole litigation. However, according to correspondence on the record it appears that he had initially charged a fee of over $40,000= against the estate.

Certainly, if counsel for the applicants is waiving the fees for all the proceedings, this would be a most welcome relief for the small estate already much diminished by the heavy litigation costs.

Although counsel for the first respondent, in his heads of argument, had sought costs on the legal practitioner-client scale, in oral argument both parties agreed that an order directing each party to pay its own costs would be appropriate.

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 arbitral award, it was brought to my attention via my sister judge – GOWORA J – who had dealt with an urgent chamber application by the Smallholder Micro-Irrigation Development Support Programme to stay the sale in execution of the Smallholder Micro-Irrigation Development Support Programme's motor vehicles which had been attached pursuant to the enforcement of the arbitral award, that the award had been registered against a wrong respondent.

A closer scrutiny of the papers confirmed the error.

In order to rectify the error and the consequent injustice, I drew the parties' attention to the anomaly. They filed their respective submissions on the issue and on 4 November 2010 I issued the following order:

“The order made on 8 September, 2010 registering an arbitral award in favour of the applicant against the Small Holder Micro-Irrigation Development Support Programme as the respondent was issued in error. The proper respondent should have been the Ministry of Finance. That order is accordingly rescinded.”

The applicant has now noted an appeal against the above quoted order to the Supreme Court. The reasons for my order have been requested. These are they.

Order 49 Rule 449(1)(a) allows a judge, either mero moto or on application by any party affected, to correct, rescind or vary any judgment or order erroneously granted in the absence of any party affected thereby while Rule 449(1)(b) allows the same to be done if the order was granted as a result of a mistake common to the parties. Either of the subrules applied in the present matter, hence I invoked that Rule.

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 interest accrued, by 30^th October 2011, the first respondent's shareholding in Africa First Renaissance Corporation Limited, be transferred to the applicant.

2. The respondents pays costs of this application at an attorney and client scale with the one paying the other to be absolved.

INTERIM RELIEF GRANTED

1.The second respondent be and is hereby directed to forthwith deposit with the Registrar or Master of the High Court, Harare Share Certificate of the first respondent in Africa First Renaissance Corporation Limited.

2. The first respondent be and is hereby interdicted from transferring, disposing of or encumbering in any other way, their shareholding in Africa First Renaissance Corporation Limited pending the finalisation of this application.”

The application was set down for hearing on 6 June 2011. During the hearing on that date, the applicant withdrew its claim against Renaissance Merchant Bank Limited which had been cited as the second respondent. On 7 June, the applicant filed its formal Notice of withdrawal. During the hearing of 6 June, the respondents raised certain preliminary points. This court ruled against the respondent and ruled that the matter ought to be heard on an urgent basis. It was then set down for hearing on the merits on 22 June 2011…,.

The first respondent's legal practitioner has since requested, inter alia, for the court's written judgment as the first respondent intends to appeal against the granting of the Provisional Order which was granted by this court. The reasons follow hereunder.

Before the hearing of the matter on the merits could commence, an application was filed, on 22 June 2011, by counself for the second respondent for the joinder, as a respondent in this matter, of Reggie Francis Saruchera in his capacity as the curator of Renaissance Merchant Bank Limited.

With the consent of the other parties, the application was granted on 24 June 2011 and Reggie Francis Saruchera, in his capacity as curator of Renaissance Merchant Bank Limited, was joined as second respondent. Counsel for the applicant thereafter applied to amend the Provisional Order sought by the applicant. The amendment was granted with the consent of the other parties. The matter was then heard on the merits and the court reserved its ruling.

On 29 June, the court granted the Provisional Order sought by the applicant, as amended. It thereafter came to the court's attention that the Provisional Order which was then availed to the parties by the Registrar had two patent errors.

The first related to the identity of the second respondent which was cited as Renaissance Financial Holdings Limited instead of Reggie Saruchera in his capacity as Curator of Renaissance Merchant Bank Limited. This error emanated from the applicant's draft of the Provisional Order. After the application for joinder had been granted, it became common cause that Reggie Saruchera in his capacity as Curator of Renaissance Merchant Bank Limited became the second respondent while the Renaissance Financial Holdings Limited remained as the first respondent.  This was thus clearly an error.

The second error, which was a typing error, and which the Registrar of this Court did not detect before proceeding to sign and issue the Provisional Order, was that the terms of the interim relief sought had been interchanged with the terms of the final order sought.

With the intention of proceeding in terms of Rule 449 to rectify these errors, the court instructed that the parties be called to attend in chambers on a mutually convenient date and time. As the Judge's Clerk failed to get a clear response from counsel he was then instructed to call the parties to attend chambers on 6 July 2011 at 8.30 a.m. Counsel for the applicant, the second respondent, and Mr Tandi, standing in for counsel for the first respondent, attended in chambers as directed. It was explained that even before the letter written by counsel for the applicant highlighting the said errors had been received, the court had already observed the same and that it was the intention of the court to rectify the Provisional Order in terms of Rule 449. Furthermore, that the Rule required that the parties be given notice of the proposed correction before it could proceed to effect the correction.

In this matter, I granted an order in favour of the plaintiff and against the defendant on the 25^th 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 on the 13^th October 2010.  The summons in that matter was served upon the defendant on the 22^nd October 2010 and as no appearance to defend was entered at the expiration of the dies inducae, the plaintiff set the matter down unopposed on 25 November 2010 resulting in default judgment being granted aforesaid. Unbeknown to me at that time, and neither of the parties brought this to my attention, on 20 October 2010 my brother NDOU J, had issued a provisional order in case no. HC2171/10 the interim relief of which was to place the defendant under provisional judicial management. That order also stayed ''all actions and proceedings and the execution of all writs, summons and other processes against the company.”(Clause 4 of the interim relief granted). I would not want to believe that the plaintiff knew of the existence of that provisional order when it sought judgment against the defendant because if it did, it was obligated to bring that fact to the courts attention on 25 November 2010. On the other hand, the defendant did not notify the court of the existence of that order either. Whichever way, the order of 25 November 2010 should not have been made and I would like to believe that it came about as a result of a mistake common to both the court and the plaintiff. When this was brought to my attention, I notified the plaintiff's legal practitioners and gave them the opportunity to address me on the issue. 

I have not received any submissions from them.

Rule 449(1)(a) and (c) allows the court to rescind a judgment or order made under such circumstances. It provides:

''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;

(b) ….,.

(c) That was granted as a result of a mistake common to the parties.''

Not only was the order erroneously sought and erroneously granted, it was also granted as a result of a mistake as the provisional order of 20 October 2010 was not brought to our attention. I therefore intend to set that order side in terms of Rule 449.

Accordingly, I make the following order:

1. That the default judgment granted on 25 November 2010 be and is hereby rescinded.

2. That there be no order as to costs.

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 be paid by the respondents.”

The background to the relief sought can briefly be stated as follows:

On 4 June 2008, the applicant instituted legal proceedings in this court by way of summons. The relief sought therein was:-

“(a) An order that the first, second, third, fourth, and fifth defendants supply and deliver to the plaintiff the total of 47,500 litres of fuel within forty eight (48) hours of service of this order upon them failing which the Deputy Sheriff be and is hereby authorized to recover the fuel and deliver it to the plaintiff.

(b) Cost of suit.”

In terms of the declaration to the summons, the above claim arose out of the fact that in July 2006 the first, second, third, and fourth respondents (then defendants) as directors of the fifth respondent (then also defendant) entered into a verbal agreement with the applicant (then plaintiff) whereby the respondents agreed to use the applicant's service station for the storage of their fuel. For the usage of the service station by the respondents, the applicant would receive 2,500 litres of fuel per month in lieu of monthly rent.

At the commencement of the agreement, the applicant made available to the respondents 30,000 litres of petrol and 10,000 litres of diesel. This means that a total quantity of 40,000 litres of fuel were due to the applicant at termination of the agreement in August 2007.

In addition to that quantity, the respondents were liable for 7,500 litres of fuel in respect of three months outstanding rentals. That brought the total quantity of fuel due to the applicant to 47,500 litres.

The above quantity of fuel forms the basis of the court order obtained from this court by the applicant on 19 May 2009 which order reads as follows:-

“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of this order, failing which the Deputy Sheriff be and is hereby authorised to recover the fuel and deliver it to the plaintiff.

2. Cost of suit.”

The respondents did not deliver the fuel within 48 hours as directed in the above order. The Deputy Sheriff was then mandated to recover the fuel, and, on 22 July 2009, the Deputy Sheriff issued a 'Nulla Bona' return of service.

It is the alleged non-compliance with the above order that has led to the current proceedings.

I first heard this application on 30 July 2010. At the commencement of the hearing, the first and second respondents applied to file heads of arguments out of time. The application was not opposed. I allowed it.

The third, fourth, and fifth respondents were in default and had not filed any opposing papers.

The applicant applied for default judgment.

I initially granted default judgment against the third, fourth, and fifth respondents. However, I later thought it best to reserve my decision on the issue of default judgment until a full hearing of the application with respect to the remaining respondents who had filed opposing papers. I then caused an attendance of both parties in my chambers on 11 August 2010 where, in terms of the Rules, I altered my earlier decision on default judgment against the third, fourth, and fifth respondents.

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 Rules of this court which he sought to rely on. The provisions are couched thus-

“449      Correction, Variation and rescission of judgments and orders

(1) The court or 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;”

It was contended that the above provisions did not apply to the present case but only to civil trials and judgments obtained following such civil trials, not applications.

I disagree.

The Rule applies to any judgment or order which was erroneously sought or erroneously granted in the absence of any affected party – even in court applications. What is important is that the judgment or order must have been erroneously sought or erroneously granted. Like, for instance, what happened in the case of Matambanadzo v Goven 2004 (1) ZLR 399 (S) where the court granted an eviction order without the pre-requisite certificate in terms of section 30(4) of the Rent Regulations 1982, to the effect that the requirement that the lessee vacate the dwelling was fair and reasonable. The court did not have the power to grant an eviction order unless the Rent Board had issued the requisite certificate and yet it went ahead and erroneously did so in the absence of the affected party. The order was accordingly set aside…,.

But, the final issue to be determined is whether or not the two judgments Timothy Sijiye seeks to have rescinded were erroneously sought or erroneously granted.

I have found that David Mpofu and his wife were properly served in terms of the Rules as the applications were served on responsible people found at the premises. No notice of opposition was filed in respect of each case. The court made no error in granting each of the judgments Timothy Sijiye sought to have rescinded.

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 a letter to the Master of this Court, and copied it to the applicant as executrix, lodging a claim against the estate of the late Sindiso Songo “the estate”. The claim was for ownership of the immovable property, Stand Number 988 Mahatshula Township, Bulawayo “the property”.  The respondents contended that the house was a family asset in respect of which the deceased did not have exclusive ownership but was just a joint owner with the respondents.

Before their claim in the estate was finalized, they learnt that the Assistant Master had given authority to the applicant to transfer ownership of the property into her name. That prompted them to seek and were granted a provisional order under case number HC933/05 on 27 May 2005 against the applicant interdicting her from disposing of or alienating the property pending proper winding up of the estate.

The respondents failed to prosecute their urgent chamber application resulting in the applicant seeking and obtaining an order dismissing the application for want of prosecution under case number HC1884/05. That dismissal of case number HC933/05 led to the respondents launching an application, under case number HC156/06, for its reinstatement. The application was successfully opposed by the applicant and was consequently dismissed. 

The judgment of the court had been reserved.

In the meantime, the Assistant Master and the applicant would not accept the respondents' claim in the estate.

The respondents then issued summons, under case number HC1519/07, claiming transfer of the property to their names subject to payment of 10% value of the house to the applicant as the late Sindiso Songo's share in the property.

Summons was served at the applicant's address for service on 18 July 2007. Appearance to defend was duly entered on behalf of the applicant by Messrs Advocate SKM Sibanda and Partners but no plea was filed timeously. Upon being pressed to file it, the legal practitioners filed a request for further particulars which were supplied by the respondents' legal practitioners in September 2007. When pressed again to file the applicant's plea, her legal practitioners renounced agency in November 2007.

The respondents' legal practitioners subsequently served a notice of intention to bar on the applicant at the address stated by the legal practitioners in the notice of renunciation of agency. The applicant was subsequently barred after failing to respond to the notice to bar.

The respondents subsequently obtained judgment in their favour against the applicant under case number HC1519/07 on 17 July 2008.

Some two years later, on 14 September 2010, the applicant launched this application for rescission in terms of Rule 449(1)(a) of the Rules of Court on the basis that the judgment was erroneously granted in her absence; in that when it was granted, case number HC153/06 for reinstatement of HC933/07 was still pending as judgment had been reserved.

I observe that case number HC153/07 for the reinstatement of case number HC933/07 was dismissed with costs.

The Rule that the applicant sought to rely on recites as follows:-

“449 Correction, variation and rescission of judgments and orders

1. The court or 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 effected thereby: or

(b) …,.

(c) …,.”

At the hearing, the allegation that the judgment was granted in the absence of the applicant was not persisted with. It was conceded, on the applicant's behalf, that through her legal practitioners, she was very much aware of the matter as she entered appearance to defend it. She requested for further particulars which were supplied. In fact, two law firms representing her were fully conscious of the dispute. The applicant was aware of the litigation at all material times. The concession by her legal representative was, therefore, properly made.

However, the applicant persisted with the allegation that the judgment was granted in error in that it, at the time it was granted, judgment in the matter wherein it was sought to reinstate the case interdicting the applicant from disposing or alienating the property, had been reserved.

The respondents have contended, on the other hand, that the subject matter is different in that the matter that the applicant wants rescinded relates to the ownership of the property. The respondents are claiming ownership in the property. This cannot be said to be lis pendens.

There is merit in the respondents' submission. The respondents had the right to issue summons in the matter in order to assert their rights.

The judgment was not granted in error.

In the result, I would dismiss the application with costs.

As already pointed out the default judgment of the 12^th 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 behalf of the Deputy Sheriff. In an undated letter attached to the founding affidavit of the applicant as annexure “B” R. Gumbo ,the Deputy Sheriff for Bulawayo, said -

“We refer to the above matter and the return of service dated 8^th of October 2008 Ref –BN/lm 010/10/08 and wish to advise that it was not done by the Deputy Sheriff's office. We have checked in our records and we never received the said summons. The format used to prepare the return of service is not ours.”

Lindiwe Muguto also deposed to an affidavit on 10^th March 2010 in which, after analysing the return of service in question, and demonstrating why she says it was not done by her or the Deputy Sheriff's office, she concludes thus -

“I therefore would like to state that this return of service attached by Mr. Sithole is a creation of his own. It was never typed by myself. It was not signed by me. It is fake and does not emanate from the Deputy Sheriff's office.”

Regina Gumbo, the Deputy Sheriff for Bulawayo, also deposed to an affidavit on the 11^th March 2010 which reads in part as follows -

“(1) I aver that I find it very offensive that he (First Respondent) can allege that I was somehow influenced by Applicant to denounce his fake return of service. Let me also categorically state that SUMMONS ARE NEVER SERVED AT THE HOUSING OFFICE. If first Respondent's summons were served by my office they would have been served on either SIKHANGELE ZHOU or SPEKIWE GUTA at Tower Block. Mr Sithole's summons were served at the housing office so they were not served by my office.

(2) I have made extensive enquiries on both B. Ndebele and Lindiwe Muguto, who are my employees, and both of them, I am satisfied, were not part of first Respondent scam of coming up with the return of service. The summons allegedly served on Applicant by B. Ndebele and thereafter a return of service typed by Muguto were neither served by my office nor typed at my office.

(3) I further aver that I have several formats for my returns and none of those formats were used by Mr Sithole. Simply put, the return of service was typed by him. We never served Applicant with the summons.  I can, however, confirm that I later personally served his order which he fraudulently obtained using a fake return of service. I therefore proceeded to the Housing office and transferred the property into his name. However, at that time, I was not aware that the order was obtained using a fake return of service hence the receipts that he may be alleging he has may probably be those in respect of service of his order.

(4) I am not associated in any way with Applicant and I only met her when she came with the fake return of service enquiring when we served her since on the face of it shows that my office served her. I told her I did not, a fact which I stand by even now. I even approached the High Court and spoke to Mrs. N. Mpfulili and explained why I am saying the return of service did not emanate from my house.”

This should put the issue of the return of service to rest.

To the extent that it has been disowned by the Deputy Sheriff, it must follow therefore that the document used to obtain default judgment is a forgery. The applicant was never served with the summons in Case No. HC2004/08 and therefore judgment should not have been entered against her.

Order 49 Rule 449 of the High Court Rules provides for correction, variation and rescission of judgments or orders made in error. Rule 449(1) provides -

“The court or 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;

(b) ….,.

(c) ….,.”

The order of the 12^th November 2008 was fraudulently sought and erroneously granted because the court was misled by a fraudulent return of service. It therefore cannot stand and should be rescinded.

The first respondent obtained transfer of Stand 20027 Pumula South, Bulawayo by virtue of an order obtained fraudulently. He therefore acquired no legal right over that property and the transfer to him was clearly a nullity…..,.

(a) The order of this court dated the 12^th November 2010 be and is hereby rescinded.

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, 18^th 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 12^th 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 7^th 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 16^th January 2009 and the 25^th 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. …,.

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 Rule 449. Rule 449(1)(b) allows the court to mero motu, or, upon the application of any party affected, to correct any judgment or order in which there is an ambiguity or a patent error or omission, “but only to the extent of such ambiguity, error or omission.” The exercise of this discretion is only permitted to the extent that after the correction, the order should reflect the intention of the judge. Such an intention is derived from the pleadings before the court which made the decision. (See First National Bank of Southern Africa Ltd v van Rensburg NO and Others: in re First National Bank of Southern Africa Ltd v Jurgens and Ors 1994 (1) SA 677 (T) 681 A-C; First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T)…,.; Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C)….,.; Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C)…,.; First National Bank of South Africa Ltd v Jurgens and Others 1993 (1) SA 245 (W)….,.; Laduma Financial Services v De la Bat NO en Andere 1999 (4) SA 1283 (O)…,.; and Adonis v Additional Magistrate, Bellville, and Ors 2007 (2) SA 147 (C)…,.).

As rightly submitted by counsel for the applicant, the reference to case no. HC6518/02 seems to have been an error. In paragraph 7 of the applicant's founding affidavit in case no. HC59/05, the applicant stated as follows:

“First Respondent obtained an order compelling Second and Third Respondent's (sic) to have cession of the above-mentioned property effected to him, which order was granted under Case No.6518/02 (sic) in default.”

As already indicated, it is common cause that case no. HC6518/02 was not prosecuted to its conclusion and no order was issued by the court in that case. It is also common cause that the applicant, however, intended to have the order that had empowered the respondent to cede the property into his name rescinded. The respondent obtained that order in case no. HC2793/02. The fact that the court was setting aside a non-existent order was therefore clearly a patent error. I do not believe that was the intention of the court. The error arose from the applicant's pleadings, but was, nonetheless, an error that the court would not have intended to perpetuate.

In the result, the applicant must succeed in having the order corrected to reflect the intention of the court….,.

1. The order in case no. HC59/05 be and is hereby corrected by the deletion of “case no. 6518/02” and substitution with “case no. HC2793/02” such that paragraph 2 of the order reads as follows:

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 rescission of any judgment or order that would have been erroneously sought or erroneously granted in the absence of any party affected thereby.

Counsel for the applicant submitted that the judgment sought to be rescinded was granted in error and this court should proceed in terms of Rule 449(1) of the Rules and set aside the judgment. Reliance was placed upon the case of Banda v Pitluck 1993 (2) ZLR 60 (H) which is authority for the proposition that the fact that an application is made under Rule 63 is not a bar to the court proceeding in terms of Rule 449 if circumstances of the case so warrant.

The applicant contends that the order sought to be impugned was granted pursuant to an error of law and proceeded to cite a litany of the alleged errors which are that:

(i) That the applicant could not have been in wilful default as he was both physically and mentally incapacitated due to illness;

(ii) That no proper service in terms of the Rules was effected as service was effected in Zimbabwe when the applicant (the late Ettore Pietro Fumia) was now resident in Botswana;

(iii) That the cause of action had prescribed as the allotment of shares complained of had occurred on 15 November 1994 and the respondents only instituted these proceedings in June 2011.

(iv) That the proceedings in HC6280/11 are a nullity as no curator ad litem had been appointed in terms of Rule 249 of the High Court Rules as the late Ettore Pietro Fumia, at the material time, was alleged to be under mental and physical disability.

(v) That the respondents should have proceeded by way of edictal citation in terms of the Rules and that no proper service of this application was effected on the third respondent (then the second respondent in HC6280/11).

While there is merit in all the factors listed above I am not persuaded that I should proceed to deal with this matter in terms of Rule 449(1).

This court can exercise the powers bestowed upon it in terms of Rule 449(1) mero motu or upon application of any party affected by the judgment or order.

In casu, no formal application was made by the applicant for the matter to be dealt with in terms of Rule 449(1). This request is made, for the first time, in the heads of argument. This, in my view, creates problems…,.

I am also not satisfied that when this court granted the default judgment in HC6280/11 it was not aware of some of the facts alleged. An affidavit from one Peter Carnegic Lloyd was attached after the court had raised certain queries initially on 31 August 2011. A number of additional documents were then attached which include, inter alia, documents relating to the nature of the late Ettore Pietro Fumia's illness and correspondence between the legal practitioners of the parties as regards the propriety of service effected.

I am therefore not persuaded that this is a proper case in which I can proceed to dispose of the matter in terms of Rule 449(1).

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 Matambanadzo v Govsen 2004 (1) ZLR 399 (S)…, by reference to the South African equivalent of the Rule as described in Theron NO v United Democractic Front & Ors 1984 (2) SA 532 (C)…, were it was stated: 

“Rule 42(1) entitles any party affected by a judgment or order erroneously sought or granted in his absence, to apply to have it rescinded. It is a procedural step designed to correct an irregularity and to restore the parties to the position they were before the order was granted. The court's concern at this stage is with the existence of an order or judgment granted in error in the applicant's absence, and, in my view, it certainly cannot be said that the question whether such an order should be allowed to stand is of academic interest only.”

MAKARAU JP…, in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…, makes the same point but puts it differently:

“The purpose of Rule 449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders or judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any one way. The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the order or judgment. See Grantully (Pvt) Ltd v UDC Ltd 2000 (1) ZLR 361 (S).”

It is now settled in our law that the requirements for the grant of an order for rescission under Rule 449 are that:

(i) The judgment was erroneously sought or granted;

(ii) The judgment was granted in the absence of the applicant; and

(iii) The applicant's rights or interests are affected by the judgment.

See Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…,.

Once these requirements are met, the applicant is entitled to succeed and the court should not inquire into the merits of the matter to find good cause upon which to set aside the order or judgment. See Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…,.

The Money Claim

The applicant contends that the exception was set down as unopposed because of the erroneous view that a party upon whom an exception is served must oppose the application in the same way as an application is opposed under the Rules. There is no Rule for opposition to an exception. Once an exception is filed it must be set down in terms of Rule 138(a) and Rule 138(b). The underlying requirement of Rule 138(a) is the consent of both parties and that of Rule 138(b) is the filing of Heads of Argument and a request for set down within a further four days in terms of Rule 223(2) of failing to secure consent.

The respondents challenge the applicant's contention from two fronts. Firstly, the applicant, in its Heads of Argument, is only attacking the set down of the exception. He is not challenging the set down of the special plea. Secondly, that the special plea and exception were not opposed and were therefore properly set down on the unopposed roll.

The observation by counsel for the respondents is correct.

The applicant, in its Heads of Argument, attacked the set down of the exception. There is no mention whatsoever of the Special Plea of prescription. There was an obligation of the applicant to oppose the Special Plea as it bore the onus to defeat the claim of prescription. It appears the applicant is conceding that there was no error in dismissing the claim of the ground of prescription. If that is the position, then the claim was properly dismissed. There was no error in granting the order as the claim had prescribed.

In respect of the exception, a litigant is obligated to indicate to the court, and the other party, whether or not he opposes the exception despite the fact that there is no rule which specifically provides for that. Where there is no indication that the exception is opposed there would be no error to treat the matter as unopposed….,.

Summary Judgment Proceedings

It is common cause that the applicant filed its opposing affidavit timeously. He did not file a notice of opposition. The respondent's legal practitioner, by letter dated 16 February 2011, advised the applicant's erstwhile legal practitioners of the procedural problems relating to the matter. There was no response. The second respondent applied to have the opposing affidavit struck off the record and for default judgment. He proceeded to set the matter down on the unopposed roll. He did not serve the applicant in the application.

Counsel for the applicant submitted that failure to attach a notice of opposition is not fatal to the application. It is not peremptory as suggested by the respondent. There was substantial compliance with Rule 233(1) and the court could have condoned the technical non-compliance in terms of Rule 4C. He also referred to Founders Building Society v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 526 for the proposition that the correct procedure would have been to file a motion to strike out the irregular pleading on notice to the other party.

Rule 233(1) reads:

“The respondent shall be entitled, within the time given in the application in accordance with Rule 232 to file a notice of opposition in Form 29A together with one or more opposing affidavits.”

The use of the word 'shall' relates to the entitlement to oppose an application and not to the filing of the notice of opposition. The purpose of filing a notice of opposition is to notify the other party that the application is being opposed. The opposing affidavit then sets out the basis upon which the application is challenged.

I agree with counsel for the applicant's position that failure to attach an opposing affidavit to the notice of opposition is not fatal and is not a bar to the respondent to the grant of its relief. There was an irregular pleading before the court.

I, however, do not agree with his interpretation of what GILLESPIE J said in the Founders Building Society v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 526 case…,. At p534 D he stated:

“If he opts for the former course, then he must, in his application, and in fulfilment of the well-recognised duty of full disclosure in ex parte  proceedings, inform the court (or the judge) of the relevant irregularity and give reasons as to why the court's discretion should be exercised in favour of the plaintiff. The fuller, and the more preferable course is an application on notice, to strike out co-joined with a prayer for default judgment.”

My view is that the plaintiff is being given a choice between the two as GILLESPIE J used the term “preferable course”. The first one being to advise the defendant of the irregularity and then making an application for default judgment. In the application for default judgment he must inform the court or judge of the irregularity and why the court should grant him the relief that he seeks. The second one is an application, on notice, to strike out coupled with a prayer for default judgment.

In casu, the second respondent's legal practitioner informed the applicant's legal practitioner of the irregularity and there was no response. He then made an application to have the irregular proceeding struck out giving a basis why it should be struck out and why he should get the relief that it sought. The application was not on notice and that is not fatal.

My view is, therefore, that there was no error in granting the order for summary judgment. The court was aware that there was an irregular pleading before it and went on to grant the application to strike it out based on the application filed by the second respondent.

Delay

An application under Rule 449 must be brought expeditiously. See Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC)…, where GUBBAY CJ stated:

“After all, r449 is “a procedural step designed to correct, expeditiously, an obviously wrong judgment or order; per ERASMUS J in Bakoven's case supra at 471 E-F.”

Judgment in the money claim was given in August 2010. The applicant filed the present application on 23 March 2011. The notice of opposition and opposing affidavits were filed on 6 April 2011. These were commissioned in Australia. The answering affidavit was filed on 5 July 2011. The respondent then filed its Heads of Argument on 6 September 2011 and arranged for the matter to be set down. The applicant filed its Heads of Argument on 20 September 2011. The above narration indicates that the applicant was not in a hurry to have the application expeditiously dealt with. It took him thirteen weeks to file an answering affidavit, yet, the first respondent, who was in Australia, filed his notice of opposition within the ten days stipulated in the court application. After a further period of eight weeks, the respondents then filed their Heads of Argument and arranged for the matter to be set down. It took the applicant two weeks to file his Heads of Argument and these were only served on the respondents some nine days after they were filed. There has to be finality to litigation and even if the applicant had brought himself within Rule 449 I would have used my discretion to decline to grant the relief sought due to the delays.

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 November 2011…, counsel confirmed the order he was enforcing was issued on 1 June 2007.

Despite the above, counsel for the respondent, in his heads of arguments, contended that the two orders were done on the same day, which is 14 May 2007. As if oblivious of the inconsistencies pointed to above counsel went on to state that:-

“The inescapable conclusion to be drawn from the existence of seemingly different orders is that an error occurred in the recording of the order resulting in the issuance of the order with three clauses. Further, that after the error was detected it was corrected immediately by the issuance of the order containing four clauses. It is submitted that such correction was competent in terms of Order 49 Rule 449 of the Rules of Court. It is common cause that the orders were issued on the date of the judgment, while the judgment itself was transcribed, in the nature of things, at a much later date.”…,.

The legal practitioners' correspondence quoted above show that this submission cannot be true. The orders were not issued on the same day - albeit they bear the same date. The date is the date of judgment and not the date the orders were issued out. The order with three clauses is consistent with the result slip I appended my signature to on the date of judgment.

Counsel's summation that the order with four clauses was competently amended in terms of Rule 449 is not correct. Rule 449 provides that:- 

(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) …,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) …,.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Upon perusal of the referenced file, HC489/05, I did not find any evidence that the court or a judge mero motu made the correction or that there was ever an application by any party for the correction of the order. The only document in the file is the letter by the respondent's legal practitioners dated 30 May 2007 addressed to the Registrar. That was certainly not an application as envisaged by the Rules.

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 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;

(b) …,.

(c) …,.”

The applicant has an interest in the matter as will be seen from the details below.

The applicant paid R24,000= for Stand Number 6107, Emganwini Township, Bulawayo and had started construction up to slab level. He therefore had a substantial interest in the matter. He should have been cited. In the result, I would mero motu entertain his application for rescission to ascertain whether or not it has any merit.

The facts giving rise to these proceedings are briefly these. On 2 July 2009, the third respondent Maqhawe Mathe, who was being represented by Miss Vaina Moyo, entered into a Memorandum of Agreement of Sale of Stand Number 263, Emganwini Township, in Bulawayo with Stella Matongo.  The property was developed. Its purchase price was R25,000= which was paid on signing the Agreement. The property, however, did not belong to Maqhawe Mathe. It belonged to one of his workmates. Stella Matongo discovered that the property did not belong to Maqhawe Mathe three weeks after she had paid for it. That was during the same month that Maqhawe Mathe had purported to sell the property. The following month, id est August 2009, Maqhawe Mathe decided to offer her his own undeveloped Stand Number 6107 Emganwini Township, Bulawayo for the price he had received in relation to the Stand which belonged to his workmate. Stella Matongo accepted the offer thereby completing the verbal agreement to purchase Stand Number 6107, Emganwini Township, Bulawayo. Trouble started when she sought to have the property transferred into her name as Maqhawe Mathe would not co-operate. He refused to sign the relevant documents to effect transfer into Stella Matongo's names.

While that was happening, Maqhawe Mathe was busy looking for another buyer for the same property. On 25 September 2009, the applicant fell victim to Maqhawe Mathe's fraudulent activities.  He entered into an Agreement of Sale of the same Stand Number 6107 for R24,000= paid in cash.  He was given vacant possession of the Stand on the next day, 26 September 2009.

The applicant started developing the property. He had started constructing a dwelling house up to slab level. Stella Matongo, on the other hand, has had the Stand transferred into her names. She purchased the Stand in August 2009 while the applicant did so the following month - September 2009.  She is the first purchaser in a double sale. She is a holder of a real right.

The applicant should look to Maqhawe Mathe for damages.

The applicant contended that since he had effected some improvement to the property the balance of convenience was tilted in his favour. He has started construction up to slab level. He, however, is not without a remedy. Stella Matongo has indicated her willingness to refund him for the slab that he has put up.

In as far as the application for rescission is concerned, the applicant has no bona fide defence. He was a second buyer in double sale of a property which has since been transferred into the names of the first buyer. His prospects of success on the merits are non-existent. In the result, his application for rescission fails. Consequently, I would issue the following order:

It is hereby ordered that the application for rescission, which this court allowed him to prosecute, be and is hereby dismissed with costs.

The judgment in the above matter was delivered on the 31^st March 2011.

The applicant had applied for an amendment of the interim order which I should have effected in my judgment referred to, but, due to an oversight I omitted to do so. The following amended is effected hereinunder in terms of Rule 449 of the High Court rules:

“(1) That first and second Respondents be and are hereby ordered to transfer Stand 604, Victoria Falls from themselves to Applicant.”

This application came before me via the urgent chamber book on 20 August 2013. After reading the papers filed of record, it was my considered view that the matter did not meet the requirements of urgency. I directed the Registrar to advise the applicant of my view. I endorsed the following in the record:

“This application does not meet the requirements of urgency. It is dismissed with costs on that basis. Further, applicant must first apply for joinder; applications in terms of Rule 449 are always on notice.” 

The applicant then wrote a letter to me, dated 21 August 2013, and requested leave to make oral submissions. I then directed that the applicant serve a copy of the application on the respondents for a hearing in my chambers on the 23^rd of August 2013 at 10am. After hearing submissions by both parties on that date I dismissed the application with costs on a legal practitioner-client scale and gave my reasons for so doing ex tempore.

On the 2^nd of January 2014, I received a minute from the Registrar advising me that an appeal had been noted in the Supreme Court under case number SC311/13 and that detailed reasons for my judgment were required.

These are they.

The applicant made an urgent chamber application seeking the granting of the following provisional order:

TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honorable Court why a final order should not be made in the following terms -

1. That applicant be and is hereby joined to the proceedings under case number HC5208/13.

2. That an order for costs on a higher scale of legal practitioner and client be made against 2^nd respondent in the event that either 1^st or 2^nd respondent opposes this application.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief -

1. That the order under case number HC5208/13 granted by the Honorable JUSTICE TAKUVA be and is hereby rescinded.

2. That the costs be determined upon confirmation of the order.

The applicant's founding affidavit was deposed to by one Asswell Africa Gurupira who stated that he was the applicant's Managing Director. He referred to court proceedings in case number HC5208/13 and attached them to his affidavit. He stated that the applicant was not a party to those proceedings. The first and second respondents in this matter, Chirosva Minerals (Pvt) Ltd and Base Minerals Zimbabwe (Pvt) Ltd were the first and second applicants under case number HC5208/13 in a chamber application. They obtained the following order on 24 July 2013 before JUSTICE TAKUVA:

IN CHAMBERS

WHEREUPON, after reading documents filed of record

IT IS ORDERED THAT:

1. Upon service of the court application in case HC233/13 the 3rd respondent (Mining Commissioner) be and is hereby joined as a party to the contempt proceedings in the said case.

2. The notice of withdrawal tendered by the applicants to the Honorable MR. JUSTICE HLATSHWAYO on 3 May 2013 in chambers in HC233/13 be and is hereby set aside.

3. The pledge by the 1^st respondent (Obert Mpofu in his capacity as Minister of Mines) to refer a tribute agreement purporting to comply with the directions as ordered by his lordship Mr. JUSTICE PATEL in case HH261/2011 be and is hereby declared to be irregular in that the 1^st respondent did not refer the tribute agreement quoted by the said honorable judge.

4. The referral by the 1^st respondent of the copy mentioned in paragraph 3 hereof be and is hereby deemed to be a referral of the original tribute agreement cited in paragraph 5 of the order by the said Honorable MR. JUSTICE PATEL.

5. Within 48 (forty eight) hours of the service of this order on them, each respondent shall take such measures as are expedient to ensure that the appropriate tribute agreement shall be processed and registered in compliance with paragraph 4 above.

6. Failing compliance, the 1^st and 3^rd respondents shall be held to be in contempt of court and each respondent shall be committed to prison for a period of 30 (thirty) days.

7. The warrant of committal to prison in respect of each respondent shall be suspended on condition that each respondent shall comply with the order in paragraph 2 hereof.

8. The 3^rd respondent shall bear the costs of this application.

Mr. Gurupira, in the founding affidavit to the present application, averred that Chirosva Minerals (Private) Limited, the first respondent in this matter, ought to have cited the applicant as a party to the chamber application determined by JUSTICE TAKUVA under HC5208/13. He alleged that the applicant has been prejudiced by the failure to be a party to those proceedings because it is the registered owner of the mine in question and will be affected by the registration of a tribute agreement. He alleged that the order granted by JUSTICE TAKUVA is riddled with fundamental flaws, is untenable and irregular, and was sought clandestinely. Mr. Gurupira alluded to the fact that this court has power to vary, rescind or correct any judgment erroneously sought or granted in the absence of any affected party and urged the court to use its powers in favor of the applicant. He set out the background to this matter as follows:

The property in dispute is six mining claims, together known as Dodge Mine, in Shamva, which are owned by a syndicate known as the Chirosva Syndicate. Certificates of registration were attached to the application. He alleged that around May 2008 the second respondent, Base Minerals Zimbabwe (Private) Limited, applied for a tribute to mine at Dodge Mine, which was granted by the first respondent and which the first and second respondents have sought to have registered by the fifth respondent, the Mining Commissioner. Mr. Gurupira alleged that the tribute could not be registered at the time that the agreement was entered into because of a dispute between the first respondent, Chirosva Minerals (Private) Limited and Vambo Mills (Private) Limited and Mr. Morris Nyakudya who claimed to have been granted a ten year tribute agreement. The dispute was determined by JUSTICE PATEL under case numbers HC801/09, HH261-11. He alleged that the ten year tribute agreement was nullified. He alleged, further, that the first and second respondent's tribute agreement was entered into in 2008 and that it had a three year lifespan. Despite the limited lifespan of that tribute, according to the applicant, the first and second respondents were granted the relief of registration of the tribute agreement on 24 July 2013 by JUSTICE TAKUVA - two years after the duration of the tribute had expired. For that reason, the applicant was seeking the rescission of the judgment granted on 24 July 2013 for the following reasons:

1. On 31 July 2012, the applicant purchased the six mining claims that make up Dodge Mine from the Chirosva Syndicate for US$234,000=, and, on the 15^th of August 2012, the claims were registered in the applicants name; certificates of registration attached.

2. At the time of registration, in August 2012, the ten year tribute had been declared invalid and the three year tribute had expired.

3. Mr. Groves, of Chirosva Syndicate sold the claims to the applicant and subsequently disinvested from the company known as Chirosva Minerals (Private) Limited. He is alleged to have transferred 50% to Mr. Peter Valentine of TAG Minerals Zimbabwe (Private) Limited.

4. The second respondent, Base Minerals Zimbabwe (Private) Limited, is aware that ownership of the mine has been transferred to the applicant and is aware that it is interdicted by the Magistrates Court from interfering with applicants mining operations.

5. Despite all this, the second respondent deliberately failed to cite the applicant as a party to the proceedings on 24 July 2013.

6. The first and second respondents, and Mr. Peter Valentine, wanted to clandestinely register the tribute and take over the operations of the mine and defeat the interdict operating against them.

7. JUDGE PATEL's judgment on the ten year tribute agreement had been misread and misconstrued; it had not taken away the power of the Mining Commissioner to register a tribute or decline to do so.

8. Mr. Valentine lacked the capacity, at law, to bring proceedings on behalf of the first respondent. This lack of capacity is the reason why the order under HC5208/13 was erroneously sought and obtained and why its rescission is being sought.

9. The applicant has no other remedy….,.

The brief facts relevant to this application are the following.

The respondent is the registered owner of an immovable property known as Stand Number 1053 Bulawayo Township otherwise known as Victoria House/Victoria Flats 103, Herbert Chitepo Street, Bulawayo. The applicant purchased this property through a written Deed of Sale from a company known as Guelder-Rose Investments (Private) Limited. The Deed of Sale was signed on 25 November 2010. The purchase price was US$140,000=. The respondent filed in the main application (HC379/11) proof that the City of Bulawayo found Victoria House to be so run-down that it condemned it unfit for human habitation. The respondent had applied to the local authority to remodel and renovate the property. The applicants were given notice to vacate and they opposed resulting in the issuance of the court application under HC379/11. 

The applicants' case is premised on the right of first refusal. 

The respondent obtained an eviction order against the applicants on 14 March 2011.

This provisional order was confirmed on 7 July 2011. After the final order was confirmed on 7 July 2011, a writ of ejectment was issued. For the record, prior to the confirmation of the provisional order under HC379/11, the applicants obtained, ex parte, provisional order in case number HC1276/11.  The provisional order suspended the effects of the provisional order granted by the court in HC379/11. Strictly speaking, the applicants ought not to have proceeded in that manner, but, rather anticipated the return day of the provisional order in HC379/11 so that the matter would be argued and finalized. Be that as it may, the provisional order in HC1276/11 did not suspend or stay prosecution of case number HC379/11, it simply suspended the effects of the provisional order pending the finalization of HC379/11. The respondent caused HC379/11 to be set down and finalized.  As alluded to above, the matter was finalized on 7 July 2011. Therefore, the provisional order, which suspended eviction of the applicants only until the outcome of HC379/11, became ineffective. The provisional order that the applicants had obtained under HC1276/11, notwithstanding that their wish was for it to protect them ad infinitum, did not provide unlimited protection. It protected them until such a time as a certain event, being finalization of HC379/11, had passed. That event has passed, and there is no lasting protection.

The applicants filed an appeal against the order granted under HC379/11 and HC64/11 pursuant to leave to appeal allegedly granted under HC1276/11 on 28 July 2011. The respondent argues that the above leave was erroneously granted. I do not wish to determine that issue because the Supreme Court then became seized with the matter. This notice of appeal lapsed and the Registrar of the Supreme Court communicated this fact to both the applicants and the respondent. The notice of appeal lapsed, according to the abovementioned notice from the Registrar of the Supreme Court, on account of the applicants' failure to comply with Rule 29(1)(b), Rule 31(1) and Rule 46(2) of the Supreme Court Rules, 1964.

This is an opposed application in which the applicant seeks the setting aside of the judgement in case HC6820/11, handed down on 30 August 2011 (which is a matter between the first respondent, Robert Matoka v Daniel Tembinkosi Dube and Another).

The basis for seeking the setting aside of the judgement is that it was obtained by fraud as the court application leading to the granting of the default judgement was never served on the respondent, Daniel Tembinkosi Dube….,.

The terms of the order sought by the applicant are couched as follows;

“IT IS ORDERED THAT;

1. The judgement in case no. HC6820/11, handed down on 31 August 2011, in the matter between Robert Matoka v Daniel Tembinkosi Dube and Another, be and is hereby rescinded.

2. The transfer of the property, known as Stand 106 Quinnington Township of Subdivision K of Quinnington of Borrowdale Estate measuring  8,397 square metres, to Robert Matoka, under Deed of Transfer number 2261/2012, be and is hereby set aside.

3. The second respondent is hereby ordered to reinstate Deed number 6366/00, dated 11 July 2000, in the name of Daniel Tembinkosi Dube.

4. The Agreement of Sale between Daniel Tembinkosi Dube and Robert Matoka, entered into on 20 May 2011, be and is hereby declared null and void ab initio and is set aside.

5. The first respondent pays the costs of suit.”…,.

At the commencement of the hearing, counsel for the first respondent withdrew one of the two points in limine he had raised. I dismissed the remaining point in limine after hearing arguments by both counsel for lack of merit. 

Counsel for the first respondent had taken the point that this application should be dismissed as it was made out of time and that no explanation for the delay has been given by the applicant. 

There is no merit in this argument as this application is not being brought in terms of Rule 63(1) of the High Court Rules 1971 which gives a time limit in which to apply for rescission of a judgement granted in default. This application is being made in terms of Rule 449(1)(a) of the High Court Rules 1971 which relates to setting aside or rescinding a judgment or order given in error. There is no time limit prescribed in respect of this Rule. The applicant also seeks the setting aside of that judgment on the basis of the common law ground of fraud. The applicant said she became aware of the judgment on 10 July 2012, hence the cause of action cannot be said to have prescribed. 

It is on this basis that I dismissed the points in limine….,.

The applicant seeks the setting aside or rescission of the court order in HC6820/11 on the basis of Rule 449(1)(a) of the Rules, that it was erroneously granted in the absence of the deceased as the first respondent is alleged to have fraudulently engineered the non-service of the application. The error referred to by this applicant is fraud. The applicant further seeks the setting aside of the Agreement of Sale of the property on the basis of lack of compos mentis on the part of the deceased at the time of the transaction.

In terms of Rule 449(1)(a) of the Rules, a party affected by the judgment or order that was erroneously granted in his or her absence is allowed to apply for the rescission of that judgment or order. See Matambanadzo v Goven 2004 (1) ZLR 399 (S)…,.

In relation to the allegation of fraud, the applicant, in her founding affidavit, raised a number of irregularities she said she unearthed which confirm that the first respondent committed fraud.

The deceased died on 3 July 2012 and the cause of death is chronic kidney failure. He died at Parirenyatwa Hospital. The applicant said it was after the deceased's death and burial that the first respondent was approached by Gift Shoko and one Mike Dube and asked to pay rentals and that the first respondent then claimed, for the first time, that he had bought the property and held title to the property. 

As already said, this is disputed by the first respondent.

The applicant said this prompted her to carry out a Deeds Search, and, on 11 July 2012, she established that the transfer had not been done, contrary to the first respondent's assertions. She said the attempts to obtain the Agreement of Sale were unsuccessful as Itayi Munyeza, of First Capital Plus, was un-cooperative. The applicant then requested the Registrar of Deeds to place an XN caveat on the property but this was declined in the absence of a court order. The applicant said First Capital Plus, who were said to have the title deeds, remained uncooperative. The applicant said she suspected that the deceased had borrowed money from First Capital Plus using title deeds to the property as surety. The applicant said she only established later that the first respondent had hurriedly effected transfer on 18 July 2012 on the basis of a court order in HC6820/11 granted in default and the deceased was compelled to transfer the property to the first respondent on the basis of an Agreement of Sale.

According to the applicant, her investigations revealed a number of irregularities which she outlined as follows:-

i) That the Deputy Sheriff was granted the power of attorney to transfer the property on 11 July 2012; soon after the deceased's death on 3 July 2012. According to the applicant, this was irregular and improper as no curator or executor to the deceased's estate had been appointed. 

ii) That the first respondent only started to put into motion the fraudulent process of transfer of the property after the deceased's death.

iii) That the court application, HC6820/11, to compel transfer, was served at No.11 Scanlen Drive, Quinnington, Harare, where the first respondent was now staying, and not the deceased, who was now staying at No.20 Clovelly Road, Chadcombe, Harare and had given that address as his domicilium as per the Agreement of Sale. According to the applicant, there was a deliberate ploy and misrepresentation by the first respondent to serve the court application where the deceased was not staying. Thus, the first respondent served the court application on himself.

iv) That the return of service of the court application shows that the court application had been served on the deceased's employee, one Nickson Chabvunda, when the truth is that the deceased never had such an employee who is also not known to this applicant and the deceased's relatives. According to the applicant, this employee is fictitious. This would mean that the court order to compel transfer was fraudulently obtained without proper service.

v) That the court application was purportedly served on 14 July 2011 when it had been issued in August 2011. The Applicant queries how service could have been effected before the process itself had been issued out.

vi) That the forced transfer of the property was premised on an Agreement of Sale, which Agreement of Sale, according to the applicant, is invalid because the deceased had no mental capacity to enter into any agreement; a fact the applicant says the first respondent was well aware of. 

vii) That the property was sold for a paltry US$50,000= when its current value, as per the Valuation Certificate, Annexure 1, is US$230,000=. According to the applicant, this puts into issue the genuinesses of the sale of the property, and the deceased's mental state.

viii) That it is not even clear if the deceased was paid any purchase price as the acknowledgment of receipt of money by the deceased from the first respondent is fraudulent because it does not show when and how this purchase price was paid. The applicant stated that she doubts that a mere constable in the police had the wherewithal to even raise this US$50,000= in one month.

It is on the basis of the above alleged irregularities that the applicant seeks to have the order in HC6820/11 set aside on the basis that it was fraudulently obtained.

It is the applicant's case that the court application was, in fact, never served on the deceased and that the Agreement of Sale is invalid as the deceased lacked mental capacity to contract. It is on this basis that the applicant seeks an order to set aside the transfer of the property to the first respondent on account of the fact that it is based on an order obtained by fraud and was done without the Master of the High Court's consent. A declaration to the effect that an Agreement of Sale is void on account of lack of mental capacity by the deceased to enter into such an agreement is sought on the same basis.

The first respondent has not only disputed the deceased's alleged lack of mental capacity to contract but also disputed that there was impropriety, let alone fraud, in the transfer process of the property. The first respondent also denied that the transfer of this property was hurriedly done after the deceased's death. 

Let me deal with the first respondent's version of events on the irregularities raised by the applicant:

i) The first respondent disputes that there was any impropriety in effecting the transfer of the property after the deceased's death. 

ii) The first respondent denies that the transfer process was hurriedly done after the deceased's death. The first respondent said when the deceased delayed to facilitate transfer, probably in a bid to avoid paying capital gains tax as he was a financial expert, he breached the Agreement of Sale. This prompted the first respondent to make a court application, in HC6820/11, on 13 July 2011, to compel transfer which a court order was granted on 30 August 2011. According to the first respondent, the deceased had signed an acknowledgement of payment of the purchase price of US$50,000= on 22 June 2011. (See p103 of the record). This acknowledgment of payment was signed by the first respondent and the deceased. It is not clear if the applicant puts the deceased's signature into issue on this document or simply relies on the deceased's alleged lack of mental capacity. The first respondent stated that the transfer of the property is a process not an event and that it started in July 2011 almost a year before the deceased's death and that the rates clearance certificate (see p108) was only obtained on 22 March 2012 and expired in May 2012.

iii) The first respondent denied committing any fraudulent act preceding the court application in HC6820/11 as alleged. He said after executing the lease agreement…, dated 30 December 2010, the deceased and the first respondent entered into an Agreement of Sale of the same property on 20 May 2011…,. Both the Lease Agreement and the Agreement of Sale bear the deceased's signature. The first respondent stated that the Agreement of Sale was drafted by a legal practitioner, Mr Chinyama, chosen by the deceased. This is confirmed by Mr Chinyama in his supporting affidavit. The first respondent said that the full purchase price was paid in terms of the Agreement of Sale and that one Itayi Munyeza, in his supporting affidavit, confirms this fact.

iv) The first respondent admits that in terms of the Agreement of Sale the deceased's domicilium was No.20 Clovelly Road, Chadcombe, Harare and that the court application was not served at that address but at the property in issue. According to the first respondent, the deceased was aware of the court application as per the affidavit of one Webster Mandimutsa. an employee in the firm Chinyama and Associates who served the court application. In his affidavit, Webster Mandimutsa stated that on 14 July 2011 he was asked to serve the court application on the deceased at No.20 Clovelly Road, Chadcombe. However, before he did that he telephoned the deceased on his mobile number which he had to confirm his whereabouts. He said the deceased advised him to proceed to No.11 Scanlen Drive, Quinnington, Borrowdale, Harare (the property) and serve the caretaker, one Nickson Chibvonda, which he did. On the allegation by the applicant that Nickson Chibvonda may be fictitious as the deceased had no such employee, the first respondent attached a supporting affidavit from Nickson Chibvonda who stated that he was employed by the deceased at the property at the end of 2010 after the property had been broken into as a caretaker and that he would receive the deceased's correspondence. He confirmed that on 14 July 2014 he was served with a court application in HC6820/11 which the deceased received after two weeks.

Mr Chinyama, in his affidavit, said after the court application in HC6820/11 was issued out on 13 July 2011, served on 4 July 2011 and order granted on 31 August 2011 he later served the deceased with the court order well before the transfer of the property.

v) The first respondent correctly refuted the allegation that the court application was issued in August 2011 and purportedly served on 14 July 2011. I invited both counsel for the applicant and the first respondent to inspect the original record in HC6820/11 and they both confirmed that the court application was issued on 13 July 2011. The applicant's allegation in this regard lacks merit and is false.

vi) The first respondent disputed that the Agreement of Sale is void ab initio as he puts into issue the deceased's alleged mental status at the time of signing this Agreement. The first respondent attached supporting affidavits from a legal practitioner, Charles Chinyama and Itayi Munyeza who all disputed that the deceased was not mentally stable at the time the Agreement of Sale was signed.

Charles Chinyama, who claims not to have a personal interest in the matter, said that he prepared the Agreement of Sale of the property on the deceased's instructions and that the deceased did not exhibit any abnormalities during the time he took instructions from him in May 2011 and throughout the process of preparing the Agreement and the signing which all happened in Mr Chinyama's offices. In fact, Mr Chinyama said prior to the signing of the Agreement of Sale he advised the deceased to have the bond against this property cancelled and that the deceased did so on 30 May 2011 as per Consent No.1672/11. As per the letter dated 31 May 2011, this process was done by Wintertons who then wrote to the deceased of the cancellation of the bond and that the deceased should collect the title deeds of the property from Wintertons.  As per that letter, the deceased did so on 22 June 2011 as he signed on the letter. 

The applicant has not commented on the deceased's signature on this letter….,. 

Mr Chinyama said after the deceased had been paid the purchase price he left for South Africa without attending to the transfer of the property and that the first respondent then approached Mr Chinyama who then started the transfer process in HC6820/11 culminating in the order granted by my late brother KARWI J dated 1 September 2011…,. Mr Chinyama said he then served the deceased with the court order to compel transfer on 20 September 2011 at his offices.

All in all, Mr Chinyama said both the deceased and the first respondent had the capacity to contract, and that everything was done above board.

Itayi Munyeza, the Chief Executive Officer of Finance (Pvt) Ltd, a micro finance institution, stated in his affidavit that he interacted with the deceased in May 2011 when the first respondent approached his company to borrow money to purchase the property in issue from the deceased. He requested to see the deceased who came in June 2011 with the first respondent. Itayi Munyeza said he interviewed the deceased to establish if indeed the sale of the property to the first respondent was genuine. He observed no irregular speech or countenance on the part of deceased whom he said was very eloquent. Itayi Munyeza said the deceased explained that the first respondent was his friend who had done a lot for him and that if he fails to buy the property the deceased would rather donate it to church as he was not after making money from the property. Itayi Munyeza said they caused a deed search of the property to be done and advised the deceased to have a bond against the property cancelled. He said the deceased alleged he had received part payment of the purchase price. Later, he said the deceased came to collect the balance and signed an acknowledgment of receipt of payment in the presence of Itayi Munyeza. He said at no stage did he notice that the deceased suffered from mental disorder and that as a professional financial institution he ensured everything was above board.

It is clear that both Mr Chinyama and Itayi Munyeza corroborate the first respondent that the deceased did not exhibit any signs of mental illness at the time of executing the Agreement of Sale and other processes ancillary thereto.

vii) The first respondent admits that he bought the property for US$50,000= and insists that the deceased was paid the money, a fact supported by Itayi Munyeza. The first respondent said the price of US$50,000= is what the deceased asked for as the deceased was very grateful for the help the first respondent had rendered to him when all the deceased's close relatives had abandoned him. In fact, the first respondent said the deceased threatened to donate this property to the church if the first respondent failed to buy it. This is confirmed by Itayi Munyeza. The first respondent said the impression he got was that the deceased was abandoned by all those close to him and did not want anyone else besides the first respondent to benefit from the property. There is therefore a dispute as to the fairness or otherwise of the purchase price of the property and the circumstances surrounding the agreement on the figure of US$50,000=. There is also a dispute as to whether this purchase price was paid, and, if so, how it was paid.

The first respondent submitted that the fact that the applicant and the deceased's relatives took no action from 2006 to have the deceased mentally treated or to protect his estate shows that the deceased was not mentally ill. The first respondent said during his stay at the property, from January 2011 until after deceased's death in July 2012, the applicant never visited the property to check on its state or the furniture they allege the deceased had abandoned in 2009. He said such conduct by the applicant is strange and not explained, moreso as the applicant alleged the deceased was mentally ill and had abandoned the matrimonial home. The first respondent said the deceased's cause of death was kidney failure and that there is no medical evidence on his mental state, either that the time of signing of Agreement of Sale or of death. The first respondent said he borrowed US$80,000= from More Finance (Pvt) Ltd using the property in issue as security. He offers no further explanation how he managed to do that….,.

I now turn to the merits of this application.

There are certain factual and legal issues raised by the applicant which are incorrect. I intend to dispose of these first.

It is incorrect, as the applicant alleges, that the court application in HC6820/11 was purportedly served before it had been issued. The record of proceedings in HC6820/11 shows that the court application was issued on 13 July 2011 and served on 14 July 2011.

It is therefore incorrect to allege that it was issued in August 2011….,.

It is an established principle of law that a judgment or order obtained by fraud will not be allowed to stand. The celebrated authors, HERBSTEIN & VAN WINSEN, The Civil Practice of High Courts and Supreme Court of Appeal of South Africa, 5^thed…., discuss this established principle, and state, inter alia, …,. -

“A judgment procured by fraud of one of the parties, whether by forgery, perjury, or in any other way, such as fraudulent withholding of documents, cannot be allowed to stand…,. It must, however, be shown that the successful litigant was a party to the fraud or perjury on the grounds of which it is sought to set aside the judgment. Furthermore, there must be proof that the party seeking rescission was unaware of the fraud until after judgment was delivered…,. The person seeking relief must be able to show that because of fraud of the other party, the court was misled into pronouncing a judgment which, but for the fraud it would not have done.”

In the case of Mutare City Council v Mawoyo 1995 (1) ZLR 258 (H) MALABA J…, stated as follows: 

“The general rule is that once a final judgment or order has been given, the judge who gave it or any other judge of parallel jurisdiction has no power to alter, rescind, vary or set it aside excepting few instances recognised at common law or by Rules of the High Court. 

One of the exceptions recognised at common law is when a judgment has been obtained through fraudulent misrepresentation. The statutory exception would, in our case, include Order 49 Rule 449(1) and Order 9 Rule 63(1) of the Rules of the High Court of Zimbabwe.”

See also Bopoto v Chikumbu & Ors 1997 (1) ZLR 1 (H).

The esteemed authors, HERBSTEIN & VAN WINSEN, The Civil Practice of High Courts and Supreme Court of Appeal of South Africa, 5^thed…., cite the case of Swart v Wessels 1924 OPD 187…, which explains the nature of the onus the applicant has to discharge in seeking the setting aside of a judgment procured through fraud. A party seeking such a relief on the grounds of fraudulent evidence must prove the following;

“(1) That the evidence was incorrect;

(2) That it was made fraudulently and with intend to mislead; and

(3) That it diverged to such an extent from the true facts that the court would, if the true facts had been proved before it, have given a judgment other than what it was induced by the incorrect evidence to give."

The position of the law and what the applicant has to prove in order to have the judgment granted in HC6820/11 set aside on the basis of fraud is therefore clear.

The order granted on 5 July 2012 reads thus:-

“IT BE AND IS HEREBY ORDERED THAT:-

(1) The defendant's defence in case no. HC3718/2011 be and is hereby struck out.

(2) The defendant shall cause the plaintiff's motor vehicle, engine No. lZZU067080 and registration no. ACC 5540, to be repaired at its own cost using new motor vehicle spare parts as quoted by Bulawayo Toyota within seven days of the granting of this order, failing which the defendant shall pay the plaintiff the sum of $7,000= together with interest thereon at the prescribed rate calculated from the 24^th October 2011 to date of full payment.

(3) The defendant shall pay the costs of suit on a legal practitioner and client scale.”

The order was sought and granted ex parte – in the absence of the affected party.

The affected party was not afforded an opportunity to be heard. The applicant had relied on the order granted to it on 10 May 2012 wherein it was granted leave to file a chamber application for the striking out of the respondent's defence under case no. 3718/2011 without notice to the respondent. This court has held that that order was erroneously granted. It was granted contrary to the mandatory provisions of Rule 160 and was ipso factor of no force or effect. Nothing can be derived from such an order.

In the result, the order of 5 July 2012 was also erroneously granted. This is also a proper case where the provisions of Rule 449(1)(a) apply….,.

This is an application for a variation of a divorce order that was granted in 2008, on the 12^th day of June, in HC2909/07. The clause that the applicant seeks to vary is worded in the following terms:-

“The plaintiff to solely retain the ownership and administration of TipTop Smiles Infant School, while defendant is awarded ZW$1,000, 000,000= which is the monetary equivalent of a 50% share of the entire commercial venture.”

I granted the order sought by the applicant ex tempore in the following terms;

“IT IS ORDERED THAT:-

(1) Clause 6 of the Divorce Order granted by this Honourable court under case number HC2909/07 on the 12^th of June 2008 be and is hereby varied to read as follows:

“The parties' business venture TIP TOP Smiles Infant School be evaluated by a reputable Estate Agent after which the Plaintiff will retain sole ownership of the business upon paying to the Defendant a 50% share of the net value of the entire business' within 3 months of the evaluation' failing which the business be sold to best advantage with the parties sharing the net proceeds equally.

(2) The respondent pays costs at an attorney and client scale.”

It is the applicant's case that clause 6 of the Divorce Order was never put into effect. The respondent did not honour that order, he kept the business but did not pay the applicant her dues in terms of the Divorce Order.

What is apparent from the Order is that it did not have a clause to protect the applicant's interests in the event that the respondent did not honour the same. That is the predicament that was faced by the applicant resulting in this application; which is an application for variation of the original Divorce Order in terms of Rule 449 so that there is a time limit within which the respondent should pay the applicant her dues. The variation also seeks to add that in the event that the respondent does not pay the applicant what is due to her in terms of the Divorce Order, then the business venture be sold to best advantage and the net proceeds therefrom shared equally between the parties.

The respondent opposed the application, he states that the applicant is coming to court with unclean hands in that she did not “claim” her share since 2008 to date.

One does not understand how the applicant could claim what she was already entitled to in terms of a court order. The applicant states that she tried to liase with the respondent for him to pay her what was due in terms of the court order to no avail. It is clear that the respondent took advantage of the fact that the Divorce Order did not provide the applicant with any enforcement mechanism and the applicant remained at his mercy all these years.

The respondent contends that the applicant is now claiming a share of the entire commercial venture yet he has improved it since 2008. One wonders why the respondent, who was the plaintiff in the divorce matter, did not pay out the applicant's dues in terms of the court order in 2008 if he believed she was entitled to the value of the business as at that time. In fact, the respondent is being contemptuous of this Honourable Court. The court ordered him to pay ZWD1,000, 000,000= being 50% of the entire commercial venture to the applicant on the 12^th of June 2008; he sits back does nothing about it; he invites his relatives to come and invest in a business where 50% has been awarded to the applicant by an order of the court. He does not honour a court order, and, in fact, claims to have gone on to improve the business. He, in fact, claims that after the divorce they reconciled with the applicant and lived together, meaning the applicant was still part of the business as a family member and a wife - even after divorce. He clearly took advantage of the fact that the court order left the applicant with no enforcement mechanism.

Even if he says they reconciled after divorce, he does not say that the applicant then waived her rights in terms of the Divorce Order; neither did the parties approach this court for a rescission of the Divorce Order by consent. The court order therefore still stands and must be honoured.

The respondent should not have opposed this application as his opposition has no basis whatsoever.

He further seeks to state that part of the business venture he had inherited from his parents. This is irrelevant, as the order that he himself sought (the decree of divorce), awarded the applicant a 50% share in the business. He cannot seek now to give the court an impression that he has problems with that order.  In any event, even if he did, he should not have waited for this application to correct what he perceived as an injustice, he should have applied for the rescission of that judgment a long time ago. The judgment itself, having been granted, obviously to the plaintiff's knowledge, more than 5 years ago; The plaintfiff cannot try to chicken out of it now. The court should frown at litigants who do not honour court orders. 

WAS THE JUDGMENT ERRONEOUSLY SOUGHT OR GRANTED?

The appellants' claim was based on Rule 449(1)(a) which provides:

“(1) The Court or Judge may, in addition to any 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 granted in the absence of any party affected thereby…,.”

The learned Judge found as follows….,.:

“A reading of the summons, paragraph (a) thereof, shows that the parties entered into a lease agreement on 31 January 2005, and it shows that as at 25 January 2013, the Defendants were in arrears to the tune of 11,127=55. Whilst the summons is not drafted in the best of terms, it does state that the basis of the claim is due to the fact that the Defendants are in arrears prompting Plaintiff to seek cancellation of the agreement in question. The summons, even before one proceeds to read the declaration, which is the one the Applicant seems to have problems with, can be understood as to the claim that is being made by the Plaintiff and its basis. It would have been proper for the applicant to have entered an appearance to defend and either request for further particulars or file an exception which the court was then going to deliberate upon, than to sit back and take it that the court would consider the summons defective and fatally flawed….,.”

She concluded that the application ought not to have been brought in terms of Rule 449 but rather in terms of Rule 63 as there was no error on the Court's part justifying the relief sought.

Rule 449 has been invoked, among other instances;

(i) Where there is a clerical error made by the Court or Judge. City of Harare v Cinamon1992 (1) ZLR 361;

(ii) Where entry of appearance had been entered but was not in the file at the time that default judgment was entered. Banda v Pitluk 1993 (2) ZLR 60;

(iii) Where, at the time of issue of the judgment, the Judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt. Grantully (Pvt) Ltd 2000 1 ZLR 361 (S).

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the Court the fact, or facts, which were not before the Court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63. Banda v Pitluk 1993 (2) ZLR 60.

However, in each case, the error or mistake relied upon must be proved (Gondo and Anor v Syfrets Merchant Bank 1997 (1) ZLR 201) and in each case the court exercises a discretion.

Turning to the instant matter, I agree with the court a quo that the appellants failed to prove that the judgment was erroneously granted…,.

Turning to the merits of the appeal, the question was whether the court a quo was correct when it examined the defence raised by the appellant and found that he had no bona fide defence to the claim.

The thrust of the appellant's argument was that once the court had found that the appellant was not in wilful default, it should have rescinded the judgment as it was made in error.

The respondent does not dispute that the appellant was not in wilful default as his failure to attend court was as a result of an administrative mishap in the Registrar's office in the court a quo.

In this regard, the appellant relied on the case of Marimo v Mpofu HB99-04 in which CHEDA J noted that:

“ln conclusion therefore, l hold that service upon Ishmael Dhlamini, a clerk in applicant's Bulawayo office, was defective ab initio and accordingly there was no wilful default on applicant's part and is therefore entitled to defend respondent's action”

The appellant further submitted that the judge in the court a quo ought to have invoked Rule 449(1) of the High Court Rules, mero motu, upon realising that the founding affidavit and heads of argument filed in the court a quo showed that the default judgment was granted in error.

I agree with the submission made by counsel for the appellant.

A judge has the power to mero motu premise his decision on Rule 449(1)(a) where it is clear from the papers that default judgment was granted in error despite the application having been made in terms of Rule 63. The circumstances in casu are similar to those in Mukambirwa & Ors v The Gospel of God Church International 1932 SC08-14. This Court dealt with this point as follows:

“In considering the application for rescission, it is common cause that the learned judge invoked the provisions of Rule 449 in rescinding the judgment and thus dealt with the order as one made in error. It is correct, as contended by the appellants, that the Church had not premised its application on the grounds of an alleged error, but rather as an application for rescission of a judgment granted in default, as provided under Rule 63. The learned judge did not, in her judgment, make reference to Rule 63. She referred to Rule 449. Rule 449(1), under which the court determined the application for rescission, reads:

'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)…,.

(1) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that the parties whose interests may be affected have had notice of the order proposed.'

The High Court is a superior court with inherent jurisdiction to protect and regulate its own processes and to develop the common law, taking into account the interests of justice. In the exercise of this inherent power, the High Court promulgates Rules of Court designed to expedite and facilitate the conduct of court business of the court. In terms of Rule 449(1), the court has the power to correct, vary or rescind a judgment, either on its own motion or upon the application of a party affected by the judgment in issue.

The founding affidavit in support of the application for rescission clearly adverted to the grounds that the Church had not been in default, but the heads of argument filed on its behalf took the point that the judgment had been erroneously sought, and, further, that that the judgment had been granted in error.  This was a point of law, and, in my view, the learned judge in the court a quo was entitled to consider the application based on the submissions in the heads of argument notwithstanding that the premise upon which the application for rescission differed to what was being argued.

Under the Rules, the judge is empowered to invoke Ruler 449 mero motu, or upon application, and in the event that the Church had not done so, the court could have, on its own volition, dealt with the matter under Rule 449. In view of the inherent powers of the High Court, it is open to the court to correct any of its orders which exhibit patent errors. The inherent power of the High Court was affirmed by LEVY J in SOS Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481, at 492 as follows:

'Under the common law, the courts of Holland were, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power was entrusted to the discretion of the Courts. This discretion extended beyond and was not limited to the grounds provided in Rules of Court 31 and 42(1)…,.'

Clearly, the High Court has the power to deal with the application for rescission in the manner that it did, and the submissions by the appellants would suggest that the powers of the court are curtailed, when dealing with questions relating to rescission of judgment, are without any foundation. In the absence of an express or clear statement to the contrary, a Court will not assume that its powers are curtailed.”…,.

It is clear from the above authority that the judge in the court a quo should have invoked Rule 449(1)(a) upon realising that the application for rescission was predicated on the fact that the default judgment was granted in error.

In his heads of argument, filed in the court a quo, the appellant indicated that the mistake by the Registrar had resulted in the appellant defaulting, and, as such, the default judgment was granted in error.

I am persuaded by counsel for the appellant's submissions that despite the fact that the application for rescission was in terms of Rule 63 of the High Court Rules, the judge should have decided the matter on the premise of Rule 449(1)(a) as the default judgment was granted in error.

The question which remains to be determined is whether the considerations for Rule 63 are similar to the consideration to be made in an application for rescission in terms of Rule 449(1)(a). 

This point was discussed in Munyimi v Tauro SC41-13 where the court stated that:

“Further, it is also established that once a court holds that a judgment or order 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' – Grantually (Pvt) Ltd & Anor v UDC Ltd 2001 (1) ZLR 361 at p 365; Banda v Pitluk 1993 (2) ZLR 60 (H) 64 F-H; Mutebwa v Mutebwa & Anor 2001 (2) SA, 193, 199 I-J and 200 A-B.”…,.

In terms of Rule 449, the only requirement which the applicant has to discharge is that the judgment was erroneously granted and the question as to whether the defendant has good cause becomes irrelevant in the circumstances. 

In casu, it has been proved that the default judgment was erroneously granted.

The argument by counsel for the respondent that Rule 63 calls for the court to consider the requirements for rescission of judgment cumulatively is correct at law but falls away where Rule 449(1)(a) has been invoked.

Clearly, the appellant's application for rescission of default judgment fulfilled the requirements set out in Rule 449(1)(a) of the High Court Rules.

For the above reasons, l am of the firm view that the appeal ought to succeed and I grant the following order;

1. The appeal succeeds with costs.

2. The order of the court a quo be and is hereby set aside and substituted with the following:-

(a) The application for the rescission of the default judgment entered against the appellant on 18 June 2013, in default of appearance in Case No. HC4135/11, be and is hereby granted.

(b) The appellant is hereby granted leave to defend the action in Case No. HC4135/11.

The grounds for rescission under Rule 449 are different from those under Rule 63.

Very briefly, under Rule 449, an applicant must show that he or she is the person affected by the order; that the order was erroneously sought or erroneously granted in his or her absence; or that the order has an ambiguity or a patent error or an omission in it; or that it was as a result of a mistake common to the parties. Under Rule 63, the applicant needs to show “good and sufficient cause.” But, unlike Rule 449, the right to apply for rescission under Rule 63 is not extended to any party affected thereby.

As regards the applicability of Rule 449 (that since the main application, that is, the one for rescission of judgment, is not in terms of Rule 449, the applicant cannot obtain an order in terms of Rule 449 by way of an urgent chamber application.), I find the respondents' argument unclear.

Rule 449 can be utilized to “vary any judgment or order.” The variation may be done mero muto by the court or a judge or upon application of any part affected. The court must be satisfied that all parties whose interests may be affected have had notice of the order proposed. 

I was faced with a situation in which I was functus officio but at the same time having power to use the provisions of Rule 449 to revisit my order. However, the powers provided to the court or judge under Rule 449 are exercisable on application.

The Rule refers to an application being made by the affected party. The Rule does not refer to a “court application” being made. The distinction is material because a court application is referred to and defined in the Rules but 'an application' is not.

I was inclined to interpret the Rule as allowing an affected party to make an application which could be made orally.

I was also fortified in my reasoning that I could hear the defendant because Rule 449 is very wide and allows the court or judge, mero motu, to revisit its/his order for purposes of correction, rescission or variation of the same for reasons set out in sub-paragraph(s) (a), (b) and (c) of the said Rule. I decided to hear what the defendant had to say, being mindful of Rule 272(2) which provides that the judge or court should not vary, correct or rescind the order granted unless parties who may be affected have been given notice of the proposed order.

I was satisfied that I would not offend the Rule if I was to hear the defendant's application, and then, only if I was satisfied that there were good grounds to vary, rescind or correct my order, would I cause that notice of my intended order be given to affected parties before I alter my previously given order.

The applicable procedure…, for rescission or setting aside an existing judgment has been amply dealt with by our courts as resting on three possible avenues;

(i) An application brought in terms of Rule 63 for a judgment granted in default;

(ii) An application in terms of Rule 449 where a judgment is granted in error;

(iii) An application in terms of the common law.

Outside these avenues it is incompetent for a judge to set aside the judgment of another judge of parallel jurisdiction.

See, for instance, Mushoto v Mudimu & Anor HH443-13 which goes into depth about the use of each of these procedures.

After hearing the parties on 1 September 2014 this Court pronounced:

“It is the unanimous view of this Court that the appeal has merit and ought to succeed. Accordingly, it is ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

'The application is dismissed with costs.'

Reasons for this judgment will follow in due course.”

The following are the reasons.

BACKGROUND

The appellant obtained an arbitral award dated 31 December 2008 requiring that the respondent pay it an amount equivalent to US$70,719= multiplied by the parallel market rate obtaining on the date of payment and within 48 hours of the uplifting of the award.

Concerns arose regarding whether or not the award did not conflict with the public policy of Zimbabwe insofar as it referred to the parallel market rate.

On 3 June 2013, the arbitration panel amended the award by severing the offending words such that the relevant portion of the award now read:

“Tel One is to pay Unitrack an amount equal to US$70,719= obtaining on the day of payment which is to be within 48 hours of the uplifting of this Award.”

The award was not complied with.

The appellant then applied, under HC4641/13, for the registration of the arbitral award as an order of the High Court for purposes of enforcement. The application for the registration of the arbitral award was served on the respondent's legal practitioners. The respondent's legal practitioners wrote a letter to the appellant's, indicating that the application was premature and unnecessary at that stage.

No opposition to the application was filed with the court.

The application was granted by the High Court. Notably, in addition to the registration of the arbitral award, the order of the High Court further provided for the payment of interest. The arbitral award itself made no such provision. The order also provided for the costs of the application to be borne by the respondent on a legal practitioner/client scale.

The respondent thereafter applied, in terms of Order 49 Rule 449 of the High Court Rules, 1971, for the rescission of the judgment on the premise that it was granted in its absence. Furthermore, that the order was erroneously sought and erroneously granted as the initial award had not made any provision relating to the payment of interest and costs. The High Court granted an order, in HC154/14, in the following terms:

“IT IS ORDERED THAT:

1. The order issued by this Honourable Court, under HC4641/13, dated 10^th July 2013, be rescinded and or varied by the deletion from the order of that part of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70,719= calculated at the rate of 5% per annum calculated from the 1^st December 2008 to the date of payment in full.

2. The respondent shall pay the costs of this application.”

THIS APPEAL

The appellant has now appealed to this Court on the singular ground that the High Court, in HC154/14, erred in finding that the order made by the same court, in case No. HC4641/13, was erroneously granted and that, consequently, it was liable to be rescinded or varied in terms of Rule 449(1) of the High Court Rules, 1971.

The appellant's contention before this Court was that when the learned Judge in HC154/14 set aside the order in HC4641/13 and substituted it with what she thought was the correct order, she did so on the basis that the judge in HC4641/13 was wrong. It was contended that this constituted an incompetent review of the judgment or order of a judge of parallel jurisdiction. It was also argued that Rule 449 was not intended for, and is not applicable in situations where a party who knows about proceedings instituted against it chooses to ignore them. It was further submitted that it was substantively wrong for the learned Judge in HC154/14 to find that there was no legal basis for the judge in HC4641/13 to accede to the application made for payment of interest.

The respondent, on the other hand, contended that Rule 449 can be used to rescind judgments that are substantively wrong. It was submitted that, in terms of Rule 449, a High Court judge can review the judgment or order of another High Court judge of parallel jurisdiction.

ISSUE FOR DETERMINATION

The issue for determination by this Court is whether the court a quo erred in applying Rule 449 to set aside the decision given earlier by another judge of the same jurisdiction.

THE LAW

Rule 449 of the High Court Rules provides:

“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 –

(2) That was erroneously sought or erroneously granted in the absence of any party affected thereby;”…,.

This appeal relates to the propriety of the application of Rule 449 by the court a quo in HH154-14.

It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “functus officio” applies to the court or judicial officer concerned.

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

In Tiriboyi v Nyoni & Another HH117-04 the following was stated:

“The purpose of Rule 449 appears to me to (be to) enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.”…,.

It seems to me that Rule 449 is meant for the correction of orders erroneously sought or erroneously granted - and not orders that are erroneous in substance.

In the South African case of DA Weelson v Waterlinx Pool and Spa (Pty) Ltd (13904/2007) [2013] ZAPGJHC 47 (1 March 2013), the court was dealing with Rule 42(1)(a) whose provisions are similar to those of our Rule 449. At paragraph [5] the court stated:

“Rule 42(1) provides that a court may, of its own accord or upon application of any party affected by the order, grant a rescission of the order or vary the order or judgment which has been erroneously sought or erroneously granted in the absence of any party affected thereby. The rule was introduced to cater for errors in judgment which are obviously wrong and are procedurally based.”…,.

The order that was granted in HC4641/13 was not sought erroneously and was not granted erroneously in the absence of the respondent. The respondent chose not to oppose the application preferring to complain to the appellant that the application was prematurely filed.

The question whether a judge can alter the decision of another judge has been discussed in a number of cases. In Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation 1984 (2) ZLR 29, the court had this to say:

“When GOLDIN J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the Rhostar case would, I think, be treading on the prerogative of the Supreme Court.”

On the facts of this case, the court a quo, in HC154/14, altered the decision of the court in HC4641/13 in circumstances where Rule 449 was inapplicable. The learned judge a quo stated at page 7 of the judgment:

“It is common cause that the arbitral award did not provide for payment of interest. Therefore, the High Court order of 10 July 2013, which provided for payment of interest from 31 December 2008, was erroneously sought and erroneously granted. There was no legal basis for acceding to that application for interest in an application for registration of an arbitral award for purposes of execution in the absence of provision for interest in the award itself.”

The quoted excerpt shows that the judge a quo's decision was based on her assessment that the decision of the judge in HC4641/13 was substantively wrong. It is possible that her assessment could be sound at law especially if regard is had to case authorities, as in Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (H)…, where the following was stated:

“I agree that a court should not interfere with the Arbitrator's Award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”

This Court is, however, not seized with the determination of the correctness or propriety of the decision in HC4641/13. This Court is, rather, faced with the issue of the propriety of the decision of the High Court whereby a judge of that Court reviewed an earlier decision by a judge of the same Court, and, therefore, of parallel jurisdiction, and substituted the earlier order with one that she felt the earlier judge ought to have made for the reason that she disagreed with the earlier court's decision.

The High Court had no power to so act. It trod on the prerogative of the Supreme Court.

In City of Mutare v Mawoyo 1995 (1) ZLR 258 (HC)…, it was said:

“In Parker v Parker & Ors, supra, SCOTT J was asked to alter an order by SANDURA JP directing that an exception in case HC3196/84 and an application in case HC1108/85, both cases involving the same parties, be heard together on the same occasion. Declining jurisdiction, SCOTT J said at 85B:

'The whole thrust of the reasons advanced by Mr O'Meara seems to point to an assertion that in his view the order was wrongly made. As a judge of the High Court, it is not up to me to vary or alter an order of a judge of parallel jurisdiction, short of expanding on it.'

Mr Wernberg's argument was that the court has inherent powers to vary its orders. No authority was cited for this general proposition. Rule 449(1) of the Rules of the High Court of Zimbabwe, 1971 does not cover variations of the orders in the manner suggested by the applicant in this case. The order by BARTLETT J was not erroneously applied for or erroneously granted. The variation applied for does not involve the correction of an error or omission in the order so that it accurately expresses the intention of the Court. I am being asked to delete ss 1 and 2 of the original order and substitute in their places the declarations requested by the applicant, without it being said what is to happen to the default judgment on which the order sought to be mutilated now stands. Although called an amendment, what is being applied for is, to all intents and purposes, a complete substitution of the terms and content of one order with those of another order.

Can one set aside an order and substitute in its place a completely different matter without doing violence to the sense and substance of the judgment or the intention of the Court that granted the order? The sense and substance of the original order will be changed…,.”

The facts that confronted the court in HC154/14 do not fall within the kind of facts that are contemplated by Rule 449 or would justify the invocation of the Rule.

Even if the court in HC154/14 was substantively correct in its views on the issue of the provision for the payment of interest, and the court in HC4641/13 was wrong, the proper remedy available to the respondent in that situation would have been an appeal and not rescission as was sought herein….,.

It is for these reasons that we found that the appeal had merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.

This is a court application filed in terms of Order 49 Rule 449 of the Rules of the High Court, 1971, on 8 August 2013, in which the following relief is sought:

“IT IS ORDERED THAT:

1. The order issued by this Honorable Court, under case number HC4641/13, dated 10^th July 2013, be rescinded and/or varied by the deletion from the order of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70,719= calculated at the rate of 5% per annum calculated from the 1^st of December 2008 to the date of payment in full.

2. The order issued by this Honorable court, under case number HC4641/13, be rescinded and/or varied by the deletion of paragraph 3.

3. The respondent shall pay the costs of this application.”

In the founding affidavit, the applicant averred that, on 31 December 2008, the respondent obtained an award issued by the Commercial Arbitration Centre, the operative part of which read as follows:

“1. Tel One is to pay Unitrack an amount of ZWD equal to 70,719= multiplied by the parallel market rate obtaining on the day of payment, which is to be within 48 hours of the uplifting of this award.

2. TelOne is to pay Unitrack an amount of ZWD equal to 164,781 multiplied by the parallel market rate obtaining on the day subsequent to the 702 voltage regulators having been examined and tested and certified as complying to specification.

3. Tel One is to pay the costs of Unitrack in accordance with the latest tariff of fees fixed by the Law Society of Zimbabwe.”

The applicant averred, further, that it forwarded a cheque to the respondent's legal practitioners, in the sum of ZWD11,668,635=50, in full and final settlement of the Arbitral award.

The applicant attached a letter addressed to the respondent's legal practitioners, dated 23 March 2009, and a reply to that letter from the respondent's legal practitioners, dated 31 March 2009, part of which reads as follows:

“1. We have no authority to receive payment on behalf of our client.

2. The cheques are purportedly in full and final settlement of our client's claim but we draw your attention, at this early stage, to the statement by the Honorable T. Biti, the Minister of Finance, that was presented in Parliament on 18 March 2009 wherein he stated thus:

'Our national currency, has, thus, become moribund. Financial assets denominated in Zimbabwe dollar have become valueless…, the Zimbabwe dollar is no longer a currency that the public, or any trader, will accept…,.'

3. The computation was done by yourselves and we do not know how it is arrived at but you however refer to a parallel market rate as at 23 March 2009. We are instructed the parallel market has ceased to exist. Accordingly, the cheques are returned herewith and will revert to you once we have had sight of the Arbitration Award and taken further instructions from our client.”

Subsequently, the respondent approached this court, under case number HC2142/09, for an order for the suspension of the Arbitral Award pending determination of an application to have the Arbitral Award denominated in United States dollars. On 24 November 2009, this court ordered that arbitrators to make an award that was not contrary to public policy. On 3 June 2013, the Arbitration panel gave an award which amended paragraph one of the Arbitral award handed down on 31 December 2008, as follows:

“Tel One is to pay Unitrack an amount equal to US$70,719= obtaining on the day of payment, which is to be within 48 hours of the uplifting of this award.”

On 13 June 2013, the respondent filed a chamber application for registration of the Arbitral award for purposes of enforcement under case number HC464/13. On 19 June 2013, the applicant's legal practitioners wrote a letter to the respondent's legal practitioners in which they expressed the view that the application for registration of the Arbitral award was unnecessary and premature at that stage.

Thereafter, the applicant proposed to settle the Arbitral award in three installments. The parties agreed that the applicant pay US$50,000= by 27 July 2013 and the balance on or before 31^st August 2013. The respondent obtained an order for the registration of the arbitral award on 10 July 2013, which read as follows:

1. The award by the Commercial Arbitration Centre, dated 3 June 2013, is hereby registered as a judgment of this court.

2. The respondent shall pay the applicant the sum of US$70,719=, or its equivalent, in a currency recognized as legal tender in Zimbabwe together with interest thereon at the rate of 5% per annum calculated from 31 December 2008 to the date of payment in full.

3. The costs of this application will be borne by the respondent on a legal practitioner client scale. …,.

The respondent caused a writ of execution to be issued on 29 July 2013.

The applicant's contention is that the Arbitral award of 31 December 2008 did not provide for interest on the amount of US$70,719= at the rate of 5% per annum calculated from December 2008 to the date of payment. The applicant contends, further, that, the addition of interest to the Arbitral award was erroneous, that it was erroneously prayed for and erroneously granted, and that, consequently, that part of the arbitral award ought to be varied or rescinded in terms of Order 49 Rule 449 of the rules of this court.

The respondent filed its opposing affidavit to this application on 21 August 2013….,.

The respondent contended that the applicant ought to have appealed against the terms of the order granted when the Arbitral award was granted, not filed an application for correction of the judgment, and that the applicant had adopted the wrong procedure.

In regards to the merits of the matter, the respondent submitted that the applicant had only made payment of the sum of US$70,719= after its bank accounts had been attached on 1 August 2013. This, it was contended, exhibited a lack of good faith on the part of the applicant, which had not bothered to oppose the court application for registration of the Arbitral award.

The respondent submitted that the agreement between the parties, to settle the award in three monthly instalments, was made after the arbitral award had been registered, and the applicant subsequently failed to honor its undertaking to pay. The respondent submitted the that applicant is misleading the court when it states that it was not aware that the respondent had registered the arbitral award at that stage. The respondent contended that it was entitled, at law, to recover interest. The respondent contended that the award was supposed to have been paid within 48 hours, and that, the lapse of the 48 hour period placed the applicant in morae. The respondent contended that interest began to accrue on the arbitral sum from the date when the money became due. For this reason, the respondent contended that there was no error on the part of the court when it registered an order for payment of interest on the sum of US$70,719=.

The respondent accepted that the original arbitral award did not provide for interest on the amount of the award and suggested that the stipulation that the award be paid within 48 hours contemplated that interest would begin to accrue from the date the award became due….,.

The applicant submitted that the application is proper because of the order that was erroneously granted in default.

In its heads of argument, the applicant stated that it was trite that a court has no jurisdiction and should be wary of interfering with an arbitral award except in a limited sense, to interpret the meaning of a word, and relied on the following cases as authorities for this proposition: Schoeman & Schoeman v Schoeman 1928 LPD 564; Keen v Durban City Council 1951 (2) SA 548 (N); and on Jacoba Law of Arbitration in South Africa…,.

The applicant also cited the case of Conforce (Private) Limited v City of Harare 2000 (1) ZLR 445 where the court stated that:

“I agree that a court should not interfere with an Arbitrator's award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”

The respondent, in its heads of argument, contended that this application ought not to have been made, for the reason that the applicant was aware of the proceedings by which judgment was obtained, having been served with a copy of the application for registration of the arbitral award, in case number HC4641/13.

The respondent contended that this court ought to consider whether a person who has ignored legal proceedings which he was aware of can subsequently turn around and assert that the relief afforded was sought in error.

Rule 449 of the rules of this court 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)…,.

(2)…,.“

The respondent sought to rely on the case of Banda v Pitluck 1993 (2) ZLR 60 (HC) as authority for the proposition that the power given to the court in terms of Rule 449(1)(a) ought to be exercised in proceedings in which the complaining party was unaware. The respondent submitted that a complaining party who was aware of the proceedings, and of the fact that the order was erroneously sought, ought to be precluded from seeking to have the order set aside because the party ought to have opposed the granting of the order on the basis that it was erroneously sought.

In Banda v Pitluck 1993 (2) ZLR 60 (HC), the applicant approached the court for rescission of default judgment in terms of Rule 63 of the rules of this court. The court rescinded the judgment on the basis that it had been erroneously granted in terms of Rule 449(1)(a). The court rescinded the judgment mero motu. Judgment had been granted in default of entry of appearance to defend. The court had failed to notice that appearance to defend had been duly entered but not served on the other side in contravention of the rules. The applicant for default judgment did not erroneously seek it, being unaware that appearance had been entered. The court erroneously granted it….,.

I am not persuaded that this case is authority for the proposition that a party who had notice of the proceedings ought to be precluded from seeking rescission because that party does not qualify as a party who was absent from the proceedings. In my view, being absent from the proceedings for purposes of Rule 449(1)(a) simply means not participating in the proceedings when judgment is given. Nothing in Rule 449(1)(a) suggests that the non-appearance must be willful or not willful. The Rule simply requires that judgment must have been erroneously sought or granted in the absence of any party affected by it. The reasons for the absence or lack of participation in the initial proceedings are not entirely relevant to the question of locus standi or permission to avail oneself to the remedy provided by the Rule, in my view.

My view is buttressed by the following dicta, at page 64, in Banda v Pitluck 1993 (2) ZLR 60 (HC), the court said:

“Let me reiterate, immediately, that rescission of a judgment under Rule 449(1)(a) is entirely different and must therefore be distinguished from an application for rescission of a default judgment under Rule 63 which requires the court, before it sets aside a judgment under that Rule, to be satisfied 'that there is good and sufficient cause to do so'. Nor is the court concerned with the issue of whether the defendant has 'a good prima facie defence to the action', the test to be applied by the court under Rule 66(1)(b) when considering an application for summary judgment.

In my view, when considering the question of rescission of a default judgment under Rule 449(1)(a) on the ground that it was 'erroneously granted in the absence of any party affected thereby', once the court finds, as it has found in this case, that the judgment was erroneously granted against the defendant; either because of an error on the part of the judge before whom the application for default judgment was placed in failing to observe the Notice of Appearance to Defend contained in the court file, or, as is much more likely, because of the absence of the Notice of Appearance to Defend in the court file through delay on the part of the Registry staff in placing the notice in the court file, then that is an end to the matter and the court should rescind the judgment.”

In Matambanadzo v Goven 2004 (1) ZLR 399 (S), the court stated that:

“The issue which I now wish to consider is what the applicant for an order rescinding a judgment or court order ought to show in order to establish that he has the requisite locus standi in judicio. That question was answered by CORBETT J, as he then was, in United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 A-C, as follows:

'In my opinion, an applicant for an order setting aside or varying a judgment or order of Court must show, in order to establish locus standi, that he has an interest in the subject matter of the judgment or order sufficiently direct and substantial to have entitled him to intervene in the original application upon which the judgment was given or order granted.”

Applying this test to the facts of the matter under consideration, I have no doubt that the applicant in casu has the requisite locus standi in judicio to bring this application. The applicant does have a direct and substantial interest in the matter of the order granted by this court. Clearly, the applicant would have been entitled to intervene in the original application for registration of the arbitral award.

The next question for determination by the court is whether the respondent was entitled to interest on the arbitral award when the award itself was silent on that aspect.

Section 4 of the Prescribed Rate of Interest Act does not answer this question. Section 5 appears to imply that such interest is payable from the date when the debt became due. In this case, such a question would have to be placed before the arbitrator for consideration. It is common cause that the arbitral award did not provide for payment of interest. Therefore, the High Court order of 10 July 2013, which provided for payment of interest from 31 December 2008, was erroneously sought and erroneously granted. There was no legal basis for acceding to that application for interest in an application for registration of an arbitral award for purposes of execution - in the absence of provision for interest in the award itself.

At the hearing of the matter, counsel for the applicant conceded that costs are always at the discretion of the court, and that, consequently, the proper procedure to get the order for costs set aside would be to appeal against the order and obtain the court's reasons for acceding to a request for costs on a higher scale.

For these reasons, the following order is granted:

IT IS ORDERED THAT:

1. The order issued by this Honorable Court, under case number HC4641/13, dated 10^th July 2013, be rescinded and/or varied by the deletion from the order of that part of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70,719= calculated at the rate of 5% per annum calculated from the 1^st of December 2008 to the date of payment in full.

2. The respondent shall pay the costs of this application.

This is an application for rescission of judgment in terms of Order 49 Rule 449(1)(b) of the High Court Rules, 1971 for the rescission of the judgment obtained by the respondent under case No. HC1292/12.

The basis of the application being that the judgment under case No. HC1292/12 is erroneous as it was granted against the wrong parties who never contracted with the respondent.

The application is opposed by the respondent.

Section 39 of the Magistrates Court Act [Chapter 7:10] states:

“39(1) In civil cases, the court may –

(a) Rescind or vary any judgment which was granted by it in the absence of the party against whom it was granted;

(b) Rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties;

(c) Correct patent errors in any judgment in respect of which no appeal is pending.

(2) The powers given in subsection (1) may only be exercised after notice by the applicant to the other party and any exercise of such power shall be subject to appeal.

(3) Where an application to rescind, correct or vary a judgment has been made, the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the application and the direction shall be made upon such terms, if any, as the court may determine as to security for the due performance of any judgment which may be given upon the application.”

Section 39 of the Magistrate's Court Act [Chapter 7:10] makes provisions for applications for rescission of judgment.

Section 39(1)(a) to (c) of the Magistrates Court Act [Chapter 7:10] states that:-

“(1) In civil cases, the court may -

(a) Rescind or vary any judgment granted by it in the absence of the party against whom it was granted;

(b) Rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud of by mistake common to the parties;

(c) Correct patent errors in any judgment in respect of which no appeal is pending.”

Subsection (2) thereof states that:

“(2) The powers given in subsection (1) may only be exercised after notice by the applicant to the other party and any exercise of such power shall be subject to appeal.”

This is an application for rescission of judgment made in terms of Rule 449(1)(a) of the High Court Rules, 1971. Rule 449(1)(a) reads 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, meru moto 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…,.”

The facts, according to the applicant, are these.

Under case number HC589/13, the respondent was granted a default judgment against the applicant and other parties in terms of which it sought to recover certain monies advanced as loans to a company. The applicant was cited therein as surety and co-principal debtor.

According to the applicant, it was common cause that Stir Crazy Group of Companies, the first defendant in HC589/13, does not exist, and that the first respondent therein ceased to exist due to its merger with Afrasia Bank Limited, culminating in the creation of Afrasia Kingdom Bank. The new merged entity is now in liquidation.

The above facts were not disclosed to the court which proceeded to grant default judgment against the applicant.

The respondent now wishes to execute the default judgment by selling the applicant's immovable property. Because the judgment was granted in his absence and because the judgment affects him substantially, the applicant argues that he is entitled to impugn the judgment on the basis of the errors indicated above. Specifically, that;

(i) There was no plaintiff under case HC589/13 as the respondent had ceased to exist due to the merger with Afrasia.

(ii) Secondly, the respondent, being a company under liquidation, ought to have been represented by its liquidator. It had no locus standi to appear before the court as plaintiff or any other party without the liquidator.

(iii) Thirdly, the applicant avers that the loan, the subject of the default judgment under HC589/13, had been advanced to a non-existent company.

Now, because there was no first defendant in that sense, the applicant could not properly be sued on the basis of a surety agreement made in favour of a non-existent entity.

If the court had been made aware of these errors, it would not have granted the default judgment. This, in a nutshell, is the factual basis upon which the applicant launched this application. He seeks rescission in terms of Rule 449(1)(a).

The respondent's opposing affidavit is sworn to by Joel Chandibata, the Recoveries Manager of Afrasia Bank Limited. Certain preliminary points are raised. I need not be detained by these.

On the merits, the respondent deposes as follows.

The order the subject of this application was not sought or issued in error. The respondent's contention is that it is the applicant who misrepresented the correct names of his company, Stir Crazy Investments (Private) Limited of which he was its alter ego. He deliberately misrepresented the company as being Stir Crazy Group of Companies (Private) Limited in some of the documents between the respondent and his company, whilst in other such documents, he correctly stated the company's name. He was also the Managing Director of the correctly named company. For that reason the applicant must be estopped from seeking to avoid the contract because the respondent acted on the basis of his misrepresentation to its prejudice. He, at all times, represented the “non-existent” company. Further, the respondent submits that the innocent misrepresentation of the principal debtor's name is a non-material mistake which cannot void the contract. In fact, money was advanced to this “non-existent entity” and the applicant himself, apart from being its Managing Director, was a signatory to the various accounts held by the company. He was also responsible for most withdrawals and repayments on the loan account. He signed the Suretyship Deed in support of the “non-existent” company.

The respondent further avers that the claim under HC589/13, against the company in question, was withdrawn, not because the company was non-existent but because it had gone into liquidation. The same company instituted action under HC10569/14 claiming $7,187,089=76 from the respondent under the same contracts that the applicant says were contracted by a non-existent company. The same non-existent company has, in writing, admitted liability and has sought a set off against outstanding debts owed to the respondent.

The respondent asserts that at the time the contracts were executed, the applicant's company had not merged with Afrasia Bank, such merger only occurring in February 2015 after the default judgment had been entered in November 2014.

The respondent submits that the provisions of Rule 449(1) do not apply in this case because the applicant has not disclosed the nature and extent of the error that the court made in entering default judgment against his company. The mistake in the name of the principal debtor, argues the respondent, was a non-material mistake which has no bearing on the contracts. The applicant bound himself as surety and co-principal debtor hence his liability is not in doubt.

I agree with the respondent that the mistake in the name of the company concerned is a non-material mistake. Put differently, if the judge who dealt with the application for default judgment had been advised that the name of the defendant should read STIR CRAZY INVESTMENTS (PRIVATE) LTD and not STIR CRAZY GROUP OF COMPANIES, as reflected on the papers, would he have declined to grant the order merely on account of that error? I should think not. A reasonable judge would have allowed an amendment correcting that error or even proceeded to correct the error himself, and, in either case, he would thereafter have proceeded to grant the default judgment in terms of the draft order so amended. Nothing further would have turned on that kind of error. The error does not affect the applicant in any substantial way, if at all, and should not lead to the rescission of a judgment that was, in all material respects, properly entered.

The rest of the errors alleged by the applicant have not been properly shown or proved by way of documentary or other evidence. The onus is on the applicant to prove its case. I will therefore, in the absence of such evidence, assume the respondent's averments to the contrary not to have been disproved.

By the same token, the point in limine raised by the respondent with regards section 213 of the Companies Act is not raised in the opposing affidavit but only in its heads of argument. It is not properly before the court and I am unable to relate to it in the present application.

Rule 449 does not only provide for rescission of judgments entered in error. It also provides for the variation and correction of such judgments. It is not every error that calls for rescission of judgment. The error as to the name of the applicant's company can be corrected.

Accordingly, it is ordered as follows:

1. The application to rescind the default judgment given under case number HC589/13, on 5 November 2014, be and is hereby dismissed.

2. The default judgment granted under case number HC589/13, on 5 November 2014, be and is hereby corrected by the deletion of “Stir Crazy Group of Companies (Private) Limited” wherever it occurs and the substitution, in its place, of “Stir Crazy Investments (Private) Limited.”

3. The applicant shall pay the costs.

The dispute between the parties first appeared before me as a chamber application for a default judgment. The application was instituted by the first respondent who was then the applicant. The application was against the second respondent and the applicants who were the defendants in the main case.

The default judgment was premised on the second respondent not having entered appearance to defend.

The application cites the second defendant and the applicants as respondents though the body of the application specifically states that “application for default judgment is hereby made against the first defendant only”. The second respondent is the first defendant in the main action. The applicants, who are the second and third defendants in the main action, had entered appearance to defend.

The default judgment was granted on the following terms:

“The first defendant is hereby barred, restrained and interdicted from issuing to either the second defendant or the third defendant or both the second and third defendants a tobacco auction floor licence issued in terms of section 44 of the Tobacco Marketing and Levy Act [Cap 18:12], in respect of premises known as the Boka Tobacco Auction Floors situate on the 13 kilometer peg along Simon Mazorodze Road Harare.”

The applicants have, after initially asking the court to rescind the default judgment through correspondence, which was vigorously opposed by the first respondent, now filed a chamber application, for the rescission of the default judgment in terms of Rule 449(1)a) of the High Court Rules. It was submitted on their behalf that the default judgment was erroneously granted in the absence of interested parties. Rule 449 provides as follows:

“(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) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Counsel for the applicants filed heads of arguments in which he submitted that the applicants were not given notice of the application for default judgment, and that the default judgment was therefore granted in the absence of interested parties. He submitted that the applicants are interested parties because the order sought and granted directly affect them.

Counsel for the respondents filed heads of arguments in which he argued that there is no rule which obliges an applicant for a default judgment against a co-defendant who will not have entered appearance to defend, to serve co-defendants who will have entered appearance to defend.

The first issue is, therefore, whether or not, I should have directed that they be served as the order sought and granted, was intended to and affects them directly. It effectively takes from them that which they had entered appearance to defend.

The second issue is whether or not the default judgment was erroneously sought and erroneously granted and can be rescinded in terms of Rule 449(1)(a).