KAMOCHA
J: The
applicant in this matter is seeking for an order of this court in the following
terms:-
“It is ordered that:-
(a)
The orders granted by the court on 10 May 2012 and on 5 July 2012 in cases No.
HC 955/2012 and No. HC 1859/12 respectively, be and are hereby rescinded;
(b)
The respondent shall bear the costs of suit.”
The rescission of above court orders
is being sought in terms of Order 49 Rule 449 (1) (a) of the rules of this
court which deals with correction, variation and rescission of judgments and
orders. The rule provides as follows:-
“(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; or
(b)
…
(c)
…”
The
order granted by the court on 10 May 2012 was as follows:-
“It
is ordered that:-
(a)
Respondent must file and serve its discovery affidavit in case No. HC 3718/2011
within five (5) days of the service of this order upon it or its legal
practitioners, failing which, it shall be automatically barred and applicant is
granted leave to file a chamber application for the striking out of
respondent's defence under case No. HC 3718/2011 without notice to the
respondent and for judgment to be entered.
(b)
Respondent shall pay the costs of this application.
(c)
The respondent's legal practitioners, or an employee thereof, are hereby
authorized to serve this order on the respondent at the address of service of
the respondent as provided in case No. HC 3718/2011.”
The applicant averred that the
respondent who was the applicant in that matter filed the application and was
granted an order ex parte when pleadings had not been closed.
Order 24 Rule 160 provides that a notice to discover shall not, save with the
leave of a judge, be given before the close of pleadings. Doing so
without the leave of a judge before the close of pleadings is expressly and
directly prohibited by Rule 160.
No judge gave leave for the close of pleadings in this matter. The
respondent argued that pleadings had closed since his replication did not raise
any new matter. The submission is simply untenable. One has just
have to look at paragraphs 3b, 3d paragraph 5, paragraphs 6b and 6c of
plaintiff's replication at pages 18 to 20 of bound papers which raised new
issues. The defendant was expected to respond to the allegations in those
paragraphs as they were hotly contested. Quite clearly pleadings had not
been closed.
It is a fundamental principle of our law that anything done contrary to what
the law expressly and directly prohibits is void and of no force or
effect. A court order granted in such circumstances is granted
erroneously. In casu the order was also granted in the absence of
the affected party – the present applicant.
This is a proper case where Rule 449 (1) (a) applies.
The order granted on 5 July 2012 reads thus:-
“IT BE AND IS HEREBY ORDERED THAT:-
(1)
The defendant's defence in case No. HC 3718/2011 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 $7 000,00 together with interest thereon at the prescribed rate
calculated from the 24th 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.
Mr Mazibuko submitted that the applicant shall bear costs of this
application irrespective of whether or not it is successful. I cannot
accede to such a request as there is no reason why this court should depart
from the well established rule that costs follow the result.
The order of this court is that this application succeeds and an order be
granted in terms of the draft order at page one.
Gama &
Partners applicant's legal practitioners
Calderwood, Bryce Hendrie & Partners respondent's legal practitioners
