MANGOTA
J:
Munangati-Manongwa
J had occasion to deal with an exception which the respondent raised
in the matter of Ignatius Masamba and Secretary–Judicial Service
Commission. The issue which related to the exception was heard and
conclusively decided under case number HH978-15. Both parties made
submissions at the hearing of the exception. Judgment was entered in
the respondent's favour.
Munangati-Manongwa
J's judgment forms the basis of the present application.
The
applicant wants it rescinded. He says it contains ambiguities, patent
errors and/or omissions. He invoked Rule 449 of the High Court Rules,
1971 in support of his application. He says the rule confers power on
the court to rescind its own judgments and/or orders. He, in fact,
couched his application in the words: 'Court Application for
Correction/Rescission/Variation of Order'.
The
respondent opposed the application.
It
submitted that the founding affidavit did not particularise the
relief which the applicant was seeking. The affidavit, it said,
lacked precision. It averred that the affidavit dwelt more on
criticizing the judge who dealt with the exception and other members
of the judiciary as well as political parties and their members. It
stated that the applicant made baseless allegations which were
riddled with accusations of corruption. He failed, it submitted, to
provide a basis for the relief which he was seeking. It moved the
court to dismiss the application with costs on a higher scale.
That
Rule 449 of the High Court Rules, 1971 confers power on the court to
correct, vary or rescind its judgments or orders requires little, if
any, debate. The Rule reads:
“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)
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 a 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 interest may be affected have had notice of the order
proposed.”
The
above Rule was, in the court's view, inserted in the rules as a
safety measure, so to speak. Those who drafted the Rules acknowledged
the obvious. They remained alive to the fact that men who mann
court-structures were and are as fallible as any other human being.
They acknowledged that these men and women – judges – do
sometimes make errors in the decisions which they make; ruling in a
particular way when it should have been in another way particularly
when the totality of the evidence which is placed before them is
taken account of. They, in such cases, allowed a judge to revisit his
own decision so that it remains in consonant with the correct law and
logic not only for the sake of it but also in the interest of
dispensing real and substantial justice to those who would have
appeared before, and presented evidence to, him.
It
is reiterated that the Rule was never meant to allow a judge to
review his own work and correct it. The Rule was also never meant to
allow one judge to sit as an Appeal Court and offer constructive
criticism to the work of a fellow judge of the same level as him
irrespective of whether or not such work accords with sound legal
principles and logic. Anything which relates to the work of a judge
properly considered and conclusively decided lies in the domain of a
review or an appeal. The court which has superior jurisdiction to
that of the court of first instance deals with matters where a party
is displeased with the decision of the court a
quo.
It
is in light of the above mentioned statements that the court will
consider the present application. That will be so as the court
cannot, at law, sit in judgment over its own decision.
The
applicant was, for a start, not specific in regard to the relief
which he was seeking. One was left to wonder whether he intended the
court to correct or rescind or vary the judgment for which he had
filed this application. He, however, became clearer and more specific
than otherwise when he addressed the court. He stated that he wanted
the whole judgment rescinded. Paragraph 7 of his affidavit, in fact,
said it all. It read:
“…..
I want the whole judgment rescinded or set aside.”
The
court did not hear the applicant to suggest that the judgment which
falls under case number HH978/15 was ambiguous. What it heard him say
was that HH978/15 contained patent errors and omissions which
entitled the court to rescind it in its entirety. He referred the
court to portions of his affidavits wherein he alleged the errors
and/or omissions were contained. The following are some of the
portions which he relied upon in his application:
Founding
Affidavit
“THE
JUDGMENT STATES THAT OR SEEMS TO STATE THAT:
(a)
There is no cause of action by dint of the dismissal of the matter –
But indeed
there is cause
of action.
(b)
I stated that the magistrate is employed by the defendant. This
is not true.
I stated that the magistrate is employed by the Judicial Service
Commission which is presided over by the Defendant i.e. the
respondent in this matter…….
(c)…………….
(d)………….
(e)…………….
(f)
That I said at any stage that the defendant was barred. This
is not true.
This is a serious betrayal of my good name attributing me to things
that I never said. This is why I say there cannot be too huge a gap
between what I wrote in my pleadings and what I said in court. In my
pleadings, I never stated that the defendant was barred. Where is it?
(g)…...........
(h)
My response to Request for Further and Better Particulars which in
retrospect must have been aptly termed or titled the Response to
Defendant's Application for Further Particulars is dated 20.7.2015.
Then followed a Defendant's Exception dated 6.8.2015 which is
marked Annexure 'G' which was 19 days later thus
filed out of time
instead of within 10 days see court Rule 119.
(i)
My Response to Exception is dated the 12th
August, 2016 then we have the Excipient's Heads of Argument dated
2.11.2015 which
is more than two months later instead of being filed within 10 days.
The judge is biased
because the Defendant replied to the Response to Exception more than
two months later.
(j)……….
(k)………..
(l)
The Defendant acted only more than two months later
by filing the Excipient's Heads of Argument to pre-empt eventually
being barred and this is supported by documentary evidence see
Annexure 'O'. The Notice of Intention to Bar is dated the 26th
October, 2015.
(m)…………………….
(n)
The summons and Plaintiff's Declaration of course, these documents
are complementary
see Rule 115; do not disclose a cause of action. This
is not true.
The truth is that the summons in paragraph 5 and the Declaration in
paragraphs 8-14 disclose
a cause of action.
Thus they are not invalid. And the hon judge arguably is biased
thus probably granted the order improperly/deceitfully/fraudulently.
(o)
The summons do not state whether I am suing in contract or delict.
This
is not true.
The summons which are Annexure 'B' in paragraph 4 and the
plaintiff's declaration which are Annexure C in para 16 state that
the plaintiff is suing both in contract and in delict. Thus once
again the judge is biased and the defendant's legal practitioner is
a counterfeit or an unprincipled young woman…..
(p)
I stated that the summons and the plaintiff's declaration are
complimentary.
This is not true.
I used the word complementary as a logical inference of the practical
technical adjusting dynamics consistent with rule 115. Complimentary
as written by the hon judge entirely means something else than as
stated by me using the word complementary.
(q)
The Hon judge agrees with the Defendant's counsel that the summons
and plaintiff's declaration are fatally defective. This
is incorrect.
The hon judge also wrote that she agrees with the defence counsel
that my summons and plaintiff's declaration are non-compliant and
inadequate which
arguable is a bogus ruling perhaps representing
an arguable highest
point of dishonesty
in a battery of misrepresentations of the true and fair view of what
is in the documents which battery of falsehoods she used to then come
up with the biased ruling.
(r-t)……………………………….
(u)
I am self–actor without a background knowledge of the law. I
qualified as a management accountant and was professionally
inculcated with cutting edge skills even in understanding the law to
compete favourably against anyone even against most hon judges and
lawyers, if not all, and rest be assured that I also have a natural
ability arguably that is too prodigious to be eclipsed.
(v-w)…………………
(x)
My proceedings are not 'defective' as written by the judge.
Arguable it
is a sham ruling……”
[emphasis added]
The
above, and many other instances which have not been cited in this
portion of the judgment, constitute the context in which the
applicant invited the court to rescind HH978/15.
The
Rule upon which his application is based is clear and unambiguous. It
enjoins the court to correct obvious errors or omissions only to the
extent of such errors and/or omissions. Paragraph (b) of sub-rule (1)
of Rule 449 does not, in short, confer power on the court to rescind
the whole judgment which was properly considered as well as decided.
The
matters which the applicant raised in his affidavits did not, in any
way, show any significant patent errors or omissions. Some of the
matters fell into the purview of a review process and others fell
into the domain of an appeal. There was nothing which required
rescission, variation or correction apart from the word complementary
which he said was erroneously written in the judgment as
complimentary.
The
applicant misread the Rule. He misunderstood its meaning and import.
He failed to appreciate the fact that the Rule can never be used as a
substitute for a review or an appeal.
The
below cited case authorities are, in the court's view, of immense
benefit to the applicant. They illustrate the context in which Rule
449 of the High Court Rules, 1971 was and can be properly applied:
1.
In
Banda
v Pitluk
1993 (2) ZLR 60 default judgment was entered against the applicant.
His legal practitioner applied for rescission of the same. The Judge
who dealt with the rescission application discovered
that the applicant had in fact entered appearance to defend before
the default judgment had been granted.
He exercised his powers in terms of Rule 449 and rescinded the
default judgment. His reasoning which was correct was that default
judgment had been erroneously granted in the absence of the party who
was affected by it.
2.
Gubbay
CJ re-emphasised the principle which was laid down in Banda's
case (supra)
when he remarked in Grantully
(Pvt) Ltd
v UDC
Ltd,
2000 (1) ZLR 361 (S) at 365 G-H as follows:
“If
the court holds that judgment or order was erroneously granted in
the absence of a party affected
it may be corrected, rescinded or varied without further inquiry.”
[emphasis added]
3.
In Topol
and Others
v L.S.
Group Management Services (Pty) Ltd,
1988 (1) SA 639 (W) the court rescinded a judgment which had been
granted on the premise that the defaulting parties had been given
notice and were in wilful
default
whereas they had in fact not been given notice.
The
patent errors which existed and were corrected in each of the above
cited cases rested on the audi
alteram partem
principle.
The
effect of the decision of the court in each case was, or is, that
where an order or a judgment is made against a party who should have
been heard but was, for some reason or other, not heard the order or
judgment is obviously given in error and, on the application of the
affected party, such order or judgment would be rescinded or varied
or corrected. The reasoning of the court, in each case, was in
consonant with good law, logic and the dispensation of real and
substantial justice.
4.
In Nyingwa
v
Moolman
NO, 1993
(2) S 508 at 510 F White
J observed that:
“The
term erroneously granted would apply in cases… where the
capital
claimed has
already been paid by
the defendant” (emphasis added)
It
is trite that the erroneously granted judgment would, if not
rescinded, allow the plaintiff to double-dip, as it were. He would be
paid in terms of the judgment when he has already been paid. The
rescission would, under the observed circumstances, prohibit him from
unjustly enriching himself at the expense of the defendant.
The
above described circumstances and many more which have not be
considered in this judgment are instances where Rule 449 remains
properly applicable.
The
same cannot be said of the present application where a decision was
reached after the parties had, in addition to their affidavits and
heads of argument, made full submissions to the court.
The
applicant was not seriously suggesting that the court should sit in
judgment over HH978/15. He was, in short, not proposing to have the
court serve as an appeal or a review forum. The rules of court do not
permit the route which he took in
casu.
The
applicant would have best served his interests if he had appealed
against HH978/15. His recourse, if any, lay more with the Supreme
Court than it did with this court.
HH978/15
was clear, cogent and to the point. It did not require any
interference at all. The application was misplaced and, therefore,
devoid of merit.
The
applicant abused the court and its process in an inexcusable manner.
His conduct should be visited with serious censure.
The
court considered all the merits and demerits of application. It was
satisfied that the applicant did not prove his case on a balance of
probabilities. The application is, accordingly, dismissed with costs
on a higher scale.
Kantor
& Immerman,
respondent's legal practitioners
