Chamber
Application
MANGOTA
J:
Pursuant
to the judgement which Mathonsi J granted to the first respondent
under case number HH 516/14 (ref HC8415/13) the first respondent did,
on 15 October 2014, issue an application out of this court. The
application was filed under case number HC9133/14. He cited the
applicant, the second, third and fourth respondents.
The
first respondent was served with opposing papers at the end of
October, 2014. He did nothing from the mentioned period to the time
that the applicant filed this application. The rules required him to
have filed an answering affidavit
or to have set the matter which related to the application down
for hearing.
He should have pursued either of the stated matters within
one month
which is calculated from the date that the opposing papers were filed
with the court [emphasis added].
The
record shows that:
(a)
the applicant filed his opposing papers to the applicant's
application on 28 October, 2014; and
(b)
the second and third respondents' opposing papers to the same were
filed with the court on 30 October, 2014.
It
is evident that the applicant should have complied with Order 32 Rule
236 in early December, 2014 or so soon thereafter. He did not do
anything at all. He, in fact, remained inactive for the whole of
November and December, 2014. He only reacted on 28 January 2015 when
he filed his notice of opposition to the applicant's application
for dismissal of application for want of prosecution.
The
first respondent's opposing papers were not in the record when the
court dealt with the application on 4 February, 2015. The court
cannot tell where they were. It, accordingly, granted the order by
default. The order is dated 4 February, 2015.
On
18 February, 2015 the first respondent's legal practitioners
addressed a letter to the Registrar of this court. The Registrar
received it on the following day and, with speed, placed it before
the court for its attention.
The
letter which the legal practitioners wrote read, in part, as follows:
“RE:
APPLICATION HC 271/15 BY JOSEPH MANDIZHA V CHEN WANG AND OTHERS
We
refer to the above in which the Chamber Application by Mr Mandizha
was granted by the Judge on the 4th
of February 2015. We understand from you that our Notice of
Opposition to that application was not amongst the Judges papers and
he therefore granted the order by default.
However,
we attach our Notice of Opposition which was filed timeously with the
registrar on 28th
of January 2015 and was served on other respondents. In the
circumstances we believe that the default order was erroneously
granted and we request the learned judge to set aside the order in
terms of Rule 449 of the High Court Rules.”
The
first respondent attached to the letter his Notice of Opposition.
The
Notice was filed with the Registrar on 28 January 2015. It was,
therefore, filed before the default order was granted to the
applicant. It is on the mentioned basis that the first respondent
submitted that the order was granted in error and should, therefore,
be corrected in terms of Rule 449 of the rules of this court.
Rule
449 confers a discretion and power on the court to correct, rescind
or vary any judgement or order that was erroneously sought or
erroneously granted in
the absence of any party affected by the judgement
or order (emphasis added). It reads:
“CORRECTION,
VARIATION AND RESCISSION OF JUDGEMENTS 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 judgement or
order -
(a)
that was erroneously sought or erroneously granted in the absence of
any party affected thereby; or
(b)
……….; or
(c)……….
(2)
The court or a judge shall
not make any order
correcting,
rescinding or varying a judgement or order
unless it is satisfied that all parties
whose interests may be affected have
had notice
of the order proposed.” [emphasis added]
There
is no doubt that the order which the court granted to the applicant
affected the first respondent's interests in an adverse manner.
That order was, however, made with the full knowledge of the first
respondent.
The
rule which the first respondent relied upon enjoined him to have
filed an application with the court. He addressed a letter to the
Registrar.
A
letter and an application are two different pieces of paper
altogether. An application falls into the realms of court process and
a letter does not fall into that category of papers. It cannot,
therefore, be stated that the first respondent complied with the rule
when he wrote the letter as opposed to him having filed, on notice to
other parties, an application with the court.
Subrule
(2) of Rule 449 prohibits the court from making any order which
corrects, rescinds or varies a judgement or order unless it is
satisfied that all parties whose interests would be affected by its
order have been notified of the proposed order.
The
first respondent did not state, in the letter, that other parties who
are part and parcel to his case were notified of what he prayed the
court to grant him. Admittedly, copies of the letter which he
addressed to the court were apparently forwarded to the parties. It
is not known if they saw the letter let alone took the trouble to
read its contents. The mere fact that the first respondent showed
underneath the writer's signature that copies were forwarded to the
other parties is not enough. The first respondent should have done
more than what he did in his effort to
satisfy
the court that adequate notice was served on the parties. Some form
of stamp and signature of the served party, if such was attached to
the letter, would have sufficed in the absence of certificates of
service.
In
his opposing papers, the first respondent admitted paragraphs A, B1,
B2, B3 and B4 of the applicant's affidavit. He also admitted that
he filed his answering affidavit out of time after which he proceeded
to chronicle his reasons for the delay. He apologised for the late
filing of his answering affidavit and he, quite correctly, stated
that he remained liable for the payment of the applicant's costs.
For
some unknown and unexplained reasons, the first respondent did not
file any answering affidavit. He, instead, filed his Heads of
Argument under case number HC9133/14. He filed those on 14 February,
2014. As at the time of this judgement, no answering affidavit of the
first respondent was filed of record. The status quo
ante,
therefore, remained obtaining from the time that the applicant and
others filed their opposing papers to date.
The
court has considered all the merits and demerits of the matter which
the first respondent placed before it through the letter. It is
satisfied that the first respondent's case is devoid of any merit.
The request which he made in the letter is not sustainable.
In
the result, it is ordered that the order which the court granted to
the applicant on 4 February, 2015 under case
number HC271/15
be and is hereby not
corrected, rescinded, varied or set aside.
F.G.Gijima
and Associates,
applicant's legal practitioners
Wintertons,
1st
respondent's legal practitioners
T.K.Hove
and Partners,
2nd
and 3rd
respondent's legal practitioners
Warara
& Associates,
4th
respondent's legal practitioners
