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
10th
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 1st
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.
