MAKONI J: The applicant, at one point was the
registered owner of Stand 606 Northwood Township 4 of Sumben. The property was
sold in execution at a public auction and the respondent was confirmed as the
highest bidder. The property was transferred into her name on 24 November 1992.
The applicant was not happy with the developments resulting in him instituting
a plethora of cases against the respondent and other parties. This culminated
in the High Court in Mhini v Mapedzamombe 1999(1)
ZLR 561 (H) making an order of perpetual silence and that the applicant
had to apply for leave of this court to institute proceedings relating
“directly or indirectly to the purchase by the applicant (respondent) of the
property”. It is this order that he seeks to set aside.
His draft order reads as follows:
“1.
The applicant be and is hereby granted leave to institute proceedings against
the respondent and her employees or agents in proceedings which relate directly
or indirectly to the purchase of the respondent of certain immovable property
known as Stand 606 Northwood Township of Sumben.
2.
The applicant be and is hereby granted leave by the honourable court to set
down any matter already filed or commenced with this honourable court in
connection with eh immovable property described in para (1).
3.
There shall be no order as to costs unless the respondent opposes this
application”.
The respondent took in limine the point the applicant cannot be heard
by reason of the fact that he is in contempt of the order that he seeks to set
aside. He had to first of all seek leave of this court to file the present
application.
When the applicant filed the present application he was represented by legal
practitioners. They filed Heads of Argument and applied for set down of the
matter. They then renounced agency. At the hearing the applicant appeared in
person. I will address these factors later on in my judgment.
Mr Uriri contended that it is not clear what the applicant seeks in
the present application. In his founding affidavit he seeks the rescission of
the judgment handed down on 30 June 1999 by GARWE J (as he then was). See para
5, 6 and 13 of the founding affidavit The order in Mhini's supra
judgment stops the applicant to approach this court without leave. He therefore
contended that these proceedings are not properly before the court.
The applicant contended that in para 4 and 14 he in effect was seeking leave of
this court. He also mentioned para 7 and 11.
A reading of the applicant's founding affidavit leaves one without doubt in
one's mind, that what the applicant seeks is the rescission of the judgment by
GARWE J. It is only when one gets to the draft order that one is confronted
with the issue of seeking leave of this court. Paragraphs 5 and 6 of the
founding affidavit are clear that the applicant seeks rescission of judgment.
In the penultimate paragraph which is para 13, he states:-
“It is within my view (sic) in the interests of
justice to pursue (sic) the rescission of order, sic) HC
4395/99 as it was delivered unwillingly (sic) by the High Court
through the misrepresentation and the omission of facts by the first
respondent. It is trite law that the High Court can set aside any judgment
procured by perjury, forgery or fraud or that new facts of (sic) of a
material nature have arisen….”
He concludes the affidavit by saying that the upliftment of bar against him
will allow him to finally seek justice. He had earlier on made reference to the
bar in para 4 where he says he filed the application to lift the bar of
perpetual silence. There are no averments set out in support of the relief that
he seeks in the draft order.
In his Heads of Argument filed by his erstwhile legal practitioners the
applicant persists with the issue of rescission of judgment. The issues to be
determined as formulated in the Heads of Argument were:-
“1.1
Whether or not the plaintiff still has recourse to rescind the judgment under
HC 4395/99.
1.2
Whether or not the judgment granted under HC 439500 was granted out of fraud,
error or mistake (sic)”.
There is no mention, whatsoever, of the issue of leave to institute proceedings
in the Heads of Argument.
It appears the applicant's erstwhile legal practitioners contributed to the
confusion in the manner they drafted the papers. There are no averments in
support of an application for leave. Instead they address the requirements of
rescission of judgment and then drop in averments of upliftment of the bar. One
wonders what was being made reference to 'as upliftment of bar.
The the draft order is very clear that what the applicant
seeks is leave of the court to institute proceedings. The fact that his
founding papers do not support the relief that he seeks is a different issue
altogether. It can be addressed when dealing with the merits of the matter. In
view of the above the respondent cannot succeed. I therefore dismissed the
point in limine
After the point in limine was argued, I postponed
the matter to the 7 March 2013 for continuation after my determination. On that
date the respondent did not attend court. An application for dismissal of the
application was made and was granted.
In the result I will make the following order.
1.
The application is dismissed.
2.
The applicant to pay the respondent costs on a legal practitioner client scale.
Uriri Attorneys-At-Law respondent's
legal practitioners
