Chamber
Application In Terms Of Rule 449 (1) (b)
CHITAPI
J:
The
papers filed as constituting this chamber application typify what has
been colloquially referred to as a dog's breakfast both as to
content and form.
One
has to painstakingly read through the papers several times to try and
make head or tail of what the applicant's cause of action is. I
have read through the founding affidavit of the applicant several
times as it is the document on which a judge can hopefully make out
what the cause of action is. The founding affidavit is confusing and
deals with unrelated or irrelevant matters to the relief sought. I
will try and be simple and methodical in my judgment in the hope that
the applicant will stand properly advised and directed.
On
7 November 2016, the applicant filed this chamber application. It was
referred to me on 3 January 2017. It should have been disposed of
long back but for the fact I had to read it over and over again to
try to decipher to merits as already pointed out. I was also in
criminal trial court and could not devote time to prepare this
judgment. I am now able to do so as the court is on vacation.
The
Nature of the Application
The
chamber application purports to be founded on Rule 449(1)(b) of the
High Court Rules, 1971. The Rule provides as follows:
“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 application of any party affected, correct, rescind or vary
any judgment or order -
(a)……………………….
(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)…………………………….
(d)
The court or a judge shall not make any order correcting, rescinding
or varying a judgment or order unless satisfied that all parties
whose interests may be affected have had notice of the order
proposed.”
The
Law
I
consider it important to briefly deal with the interpretation which
the courts have given to Rule 449(1)(b).
Firstly,
it must always be borne in mind that when a court or judge is seized
with a matter, once it or he pronounces judgment or an order on the
matter, it or he becomes functus
officio.
The court or judge as the case may be will have discharged it or his
function, rightly or wrongly and may not revisit or change the
determination or decision. A party who is not satisfied with the
decision of the court or judge must subject to any rule relative
thereto take up the decision on appeal to the Supreme Court. I would
say that at its simplest extrapolation, this is the procedure which a
litigant who is not satisfied with a decision of the court or judge
should follow or be guided by.
Rule
449 recognizes the fallibility of the court or judge inasmuch as
decisions of the court are made by human beings. As human beings
judges are not infallible.
The
Rule in addition to the common law inherent power of this court to
supplement, clarify or correct its judgment, which power does not
concern this judgment, allows the court or judge to revisit its
judgment in which it or he is functus
officio.
The revisitation and the powers which the court or judge may exercise
are not open ended. The powers which may be exercised and the
circumstances allowing for the revisitation are circumscribed in the
Rule. The court or judge will do so either on its or his accord or
upon application by any affected party which means that in addition
to the parties to the judgment, a party who was not party to the
litigation can utilize the Rule if such party is affected by the
judgment or order concerned where it was given in such party's
absence. See Mashingaidze
v Chipunza
& Ors
2015 (2) ZLR 362;
Before
the court or judge can correct, rescind or vary any judgment or order
based on the provisions of Rule 449(1)(b) at the instance of a party,
such party is required to point out to:
(a)
the ambiguity; or
(b)
patent error; or
(c)
the omission; sought to be relied upon to move the court or judge to
exercise a discretion to make alterations to the judgment or order as
the case may be.
In
Wector
Enterprises (Pvt) Ltd v
Luxor
(Pvt) Ltd
2015 (2) ZLR 57 (S) the learned Ziyambi
JA
gave an overview of the rationale behind Rule 449 generally in the
following extract at 60H–61C:
“Rule
449 of the Rules has been invoked among other instances, where there
is a clerical error made by the court or judge (see City
of Harare v
Cinamon
1992 (1) ZLR 361 (S); where entry of appearance had been entered but
not in the file at the time default judgment was entered (See Banda
v
Fitluk
1993 (2) ZLR 60 (H); where at the time of issue of the judgment, the
judge was unaware of a relevant fact namely a clause in an
acknowledgement of debt (see Grantually
(Pvt) Ltd & Anor v
UDC
2000 (1) ZLR 361 (S)……..
Where
applicable, the Rule provides an expeditious way of correcting
judgments obviously made in error. It envisages the party in whose
absence the judgment was granted being able to place before the court
the fact or facts which were not before the court granting the
judgment. There is no need for the applicant to establish good and
sufficient cause as required by Rule 63 of the Rules. (See Banda
v
Pitluk)
(supra).
However,
in each case, the error or mistake relied upon must be proved and in
each case, the court exercises a discretion. See Gondo
& Anor v
Syfrets Merchant Bank Ltd
1997 (1) ZLR 201 (H)………………..
In
any event Rule 449 is not mandatory but confers upon the court, a
discretion to act in terms thereof…….”
The
decisions in Mashingaidze
v
Chipunza
(supra)
and Vector
Enterprises (Pvt) Ltd
v Luxor
(Pvt) Ltd (supra),
specifically dealt with applications brought under Rule 449(1)(a).
This notwithstanding the cases stand as a guide with respect to the
overview of the purport of Rule 449 generally.
In
Mpansi
& Ors v
Dube & Ors
2015 ZLR 1 (S), the learned Hlatshwayo
JA
dealt with an application for correction or variation of a Supreme
Court order pursuant to Rule 58 of the Supreme Court Rules, 1964 as
read with Rule 449 of the High Court Rules, 1971.
He
corrected a costs order in which costs had been granted against the
executor of a deceased estate in his personal capacity. The order of
costs had not specified that the costs of appeal be borne by the
estate. The order had simply read inter-alia that; “The appeal is
allowed with costs”. Since the executor had been a party to the
appeal which was allowed as a co-respondent, it was argued that the
order of costs was ambiguous unless corrected because it gave the
impression that both the executor and the estate had to bear costs.
The learned judge clarified the costs order.
In
my view an ambiguous judgment or order must be construed as one that
is unclear and capable of various interpretations. This may usually
come about as a result of the language used by the court or judge.
The ambiguity will therefore be attributable to the court or judge in
how it or he has expressed himself or herself in the language used.
In such a case it has been held that relief should be granted where
from the language used, the ambiguity resulting therefrom has the
effect that the true intention of the court or judge is not clear.
See First
National Bank of South Africa Ltd v
Surgens
1993 (1) SA 245 (w) at 246.
A
patent error or omission as the expression implies is one which is
clearly obvious to anyone reading the judgment or order. It does not
appear to me that the expression should present difficulties of
interpretation.
Examples
of patent errors may relate inter
alia,
to clerical errors with regard to figures, dates or spellings. For
good measure, a court may have ordered that an order be complied with
by a certain date but when the judgment is typed and signed, it gives
a date which had already passed through clerical error or an
impossible date like 31 June yet the month of June ends on the 30th.
A
court or judge may for example in making an order requiring a party
to do a certain act or refrain from doing so mistakenly omit to name
the party who should so comply in circumstances where there are
several parties in the judgment. Such an omission can be said to be
patent and in my view can properly be corrected and the judgment or
order varied to make it explicit.
I
should mention that I have read the views expressed by the celebrated
authors Herbastein and Van Winsen in The
Civil Practice of the The Courts of South Africa,
Vol 1, 5th
ed at p 935 where they rely on the judgment, Isaacs
v
Williams
1983
(2) SA 723 on the interpretation which has been given to Rule
42(1)(b) of the South African Uniforms Rules of Court which reads the
same as Rule 449(1)(b).
The
Authors state that “an order that has been correctly made but
incorrectly typed cannot be corrected or amended in terms of this
Rule, although a court has the inherent competence to correct the
order so that it corresponds with the one made by the court.”
A
typing error in my view is an error which should be covered by Rule
449(1)(b) because if the court has made an order and it is say
handwritten or verbal and it is recorded, an error in typing becomes
patent by comparison between the actual handwritten or recorded order
and the typed error. I do not see why the Rule would not cover such a
situation.
Even
if I am wrong in my reasoning I would think then that Rule 449(1)(c)
which allows for a variation, rescission or correction of a judgment
or order on the basis of a mistake common to the parties would cover
the situation.
The
distinction is too fine to call because what in essence is the
judgment or order of the court would be the untyped judgment or
order. The act of typing is merely there to reduce the judgment or
order to a typed version and if the typed version does not reflect
the untyped script then in my view it is patently erroneous to the
extent of the mistyped error. I therefore respectfully disagree with
the said authors for the reasons I have set out. In disagreeing with
them, I do so in the hope that I did not misunderstand or misconstrue
what they intended to convey.
Analysis
of the Application
Having
set out the law and expressed the difficulties I have encountered in
comprehending the applicant's founding affidavit I proceed to
analyze as best I can the application in casu
in the understanding that the applicant must make out a case for
relief under Rule 449(1)(b) of the rules of this court.
He
must point out to the ambiguity, patent error or omission which he
alleges that the court made in its judgment in case no. HC6970/16.
Once he has done this, he must satisfy me that the ambiguity or
patent error or omission is such that I should be persuaded to
exercise my discretion to exercise to set aside the judgment as
prayed for by the applicant in his draft order.
The
discretion which I am empowered to exercise as with any judicial
discretion must of course be exercised judiciously which connotes
that the discretion must be based on what is fair in the
circumstances of the case whilst applying rules and principles of
law. By giving the court or judge a discretion to exercise the powers
given in Rule 449, the applicant must understand as a corollary that
he has no right or entitlement to demand the relief as of right.
I
proceed to briefly outline the material facts arising or discernible
from the judgment of this court prepared by my sister Chigumba
J in case no. HC6970/16 (ref HH660/16) which judgment the applicant
seeks to impugn in this application.
On
1 September 2016, Case No. HC6970/16 in which the applicant therein
was the applicant was listed on the unopposed roll following several
postponements by other judges who raised various queries. Chigumba
J in her judgment HH660/16 which the applicant has annexed to his
present application dismissed that application on the basis that:
“(a)
There is no cause of action thereof and the relief sought is
incompetent.
(b)
The papers are defective in that they do not comply with order 32 of
the rules of this court.”
The
applicant as evident from the judgment wrote several letters
complaining about the dismissal of his application and requesting, if
not demanding for reasons for the order. I have gone through the
actual court record in case no HC6970/16 because in this application,
the applicant has just bundled together annexures in the form of
documents whose relevance and purport is not clear to me.
I
should at this stage indicate that the present application was
opposed by the first respondent which filed its opposing affidavit on
17 November, 2016.
In
para 3 of the opposing affidavit, the deponent to the second
respondent's affidavit states that he has “read and understood
the applicant's founding affidavit ….” I do not purport to deny
his assertion that he has understood it save to state that I
unfortunately have not understood it especially reading it in the
context of an application purportedly being made under Rule 449 of
the High Court Rules.
The
contents of the founding affidavit are convoluted, twisted and
difficult to follow.
The
applicant attacks the learned Chigumba
J
as being careless, abusing authority and going on a frolic of her own
in how she dealt with the application HC6970/16. He then speaks about
distress suffered by the second respondent which compels her to beam.
He speaks of politics creating difficulties in his love affair with
the second respondent more particularly that ZANU (PF) is blocking
him from marrying the second respondent.
In
paras 14 and 15 of his founding affidavit, the applicant states as
follows:
“14.
The (i) beaming which is the act complained of, and (ii) the failure
or omission to clarify about whether or not there is political
meddling blocking the love affair going right to marriage and (ii)
the failure or omission to clarify or confirm whether or not I can
marry her by the second respondent are the acts of carelessness or
negligence which judge Chigumba fails to come alive to. See paragraph
37 of the applicant's founding affidavit on page 61. The civil
wrong is negligence or carelessness.
15.
The 2nd
respondent was careless or negligent, in the failure to clarify about
the acts or omissions that are complained of about which were
specified or itemized in paragraph 37. The negligence or carelessness
or failure or omission to clarify by the second respondent as
itemized in paragraph 37 of the applicant's founding affidavit in
case no: HC 6970/16 is the civil wrong or delict or tort or common
law breach of the duty of care complained of.”
From
the above paragraphs, I got the impression that the applicant was
arguing that the learned judge failed to understand or appreciate the
cause of action in case no. HC6970/16.
The
applicant then attempts to extrapolate the cause of action which the
learned judge failed to appreciate or discern.
If
I am correct in so holding, then, the applicant is ill advised to
seek recourse in terms of Rule 449(1)(b). Rule 449(1)(b) is not
intended to circumvent the process of appeal.
A
person who is dissatisfied with the judgment of this court as would
appear to be apparent in this application, if one has regard to the
applicant's quoted and other averments should have the judgment
tested by a higher court on appeal rather than seeking to have the
functus
officio
court or judge review its or his or her judgment and setting it aside
as prayed for by the applicant.
The
applicant's thought pattern has left me wondering whether he is
compos
mentis.
I have already indicated that his documents are convulted. This
equally applies to his thought pattern. For example in para 24 of his
founding affidavit which he has typed in bold, he states:
“24.
As I write this applicant's founding affidavit: next door
neighbours at 7223A, 25th
Street Western Triangle, High Field are emitting alternately both
chemical and herbal very pungent smokeless smells. Which means it is
just, I am having to deal with a probable political malevolent
confederacy of a behemoth nature. And the second respondent is
booming/beaming.”
Apart
from the above deposition not having any relationship with the
alleged ambiguity or errors or omissions in Chigumba
J's judgment, one cannot make out the content of the same. It is
for this reason that I have found myself questioning the mental
composure of the applicant.
I
will among other further meaningless paragraphs quote para 29 in
which the applicant avers:
“29.
Possibly the Judge is complicity. Isn't she? In the postulated
most-likely scheme of ZANU (PF) of wanting me to die of AIDS than
marry as a targeted person by my political most inveterate adversary,
Mr Mugabe, the president of Zimbabwe. What motivated the dismissal.
All it does is to seem to confirm my allegations. So where have I
lied against ZANU (PF). What motivates the Judge? Is she really
incompetent?”
I
note that Chigumba
J described averments made by the applicant's in his founding
affidavit in HC6970/16 inter
alia
as jumbled, garbled and insensible and that no useful purpose could
be served by repeating them.
I
find myself after painstakingly trying to make head or tail of the
applicant's averments, having to say that the pattern observed by
Chigumba
J has been repeated.
Although
the first respondent has filed opposing papers on the merits, I
cannot fathom why the respondent has been made a party to this
application. No relief is sought against the first respondent and it
is mind boggling why the first respondent would be cited as a party
in an application based on Rule 449 of the High Court Rules.
To
add salt to injury the applicant in his draft order prays for the
setting aside of the judgment in HC6970/16 with costs against the
first respondent.
Whilst
Rule 449(2) enjoins the court or judge to satisfy it or himself that
all parties whose interests may be affected by an exercise of the
powers set out in the Rule, are made aware of any application made
under Rule 449(1), it is not apparent as to how the first respondent
is an affected party whether explicitly or implicitly.
The
Judicial Service Commission does not supervise the content of a
judge's judgment nor does it superintend or influence judgments. It
was also not a party to case no. HC6970/16. There is also no reason
advanced by the applicant to support or justify a costs order against
the first respondent.
I
do agree though with the first respondent when it states as follows
in para 16 of the opposing affidavit:
“16.
The applicant has engaged in paranoid delusions throughout his
Founding Affidavit, initially accusing everyone from the President,
the Judges of the High Court, political parties, alleged members of
the Central Intelligence Organisation and even the second respondent
whom the applicant alleges to love of having a sinister plot against
him simply because a judgment was entered against him.”
In
particular the applicant has made unmitigated and virulent attacks on
the judge of this court, Chigumba
J without substantiation. He among other expletives and profanities
accuses the judge of corruption, carelessness and negligence in an
open demonstration of contempt of the judge and court's authority
simply because his unopposed application was dismissed for want of
merit.
Whilst
it is the right of every person to petition the courts, with the
courts having a corresponding duty to adjudicate on all matters which
come before them, the right does not include the right to abuse the
courts and judicial officers.
This
application is not only devoid of merit but lacks bona
fides.
It was filed by a delusional applicant who simply considered that the
court or judge was wrong to dismiss his application. He then went
into attack mode and mounted a sustained attack on the judge and
anyone whom he thought in his delusional state to be against him.
Courts
have a duty to guard the abuse of the court process and where there
is unmitigated abuse as in this case, it is only reasonable, expected
and indeed proper for the court to shut its doors to the abuser
and/or place such abuser on terms with regards how he may be allowed
to exercise his rights of access to the courts.
There
is nothing ambiguous in the judgment delivered by Chigumba
J
by any stretch of imagination. There is no error or omission
discernible let alone proven by the applicant. The only error is the
applicant's perception which is ill conceived that he should have
been granted the order which he sought. He now seeks to argue why the
judge should be held to have been in error by making all sorts of
baseless, unintelligible arguments and accusations which clearly fall
outside the scope of Rule 449. I have already indicated that if the
applicant had been properly advised, he should have noted an appeal.
Before
rounding off my judgment I need to comment on a point in
limine
taken by the first respondent in para 9 of the opposing affidavit
that the applicant adopted a wrong procedure in filing a chamber
application for rescission of judgment instead of a court
application.
The
first respondent argues that because Rule 449(2) requires that
interested parties be served, an application under Rule 449 should be
brought as an ordinary court application.
I
do not agree.
The
first respondent should seek guidance from not only Rule 226(2) but
should also have regard to Rule 241 and Rule 242.
It
is not a correct statement of the law to hold that where a chamber
application to a judge is to be served on other interested parties,
such application should be brought as a court application or becomes
a court application. The correct statement of the law as I understand
it is that all chamber applications unless excepted in terms of the
exceptions in Rule 242 should be served on all interested parties.
This is clear from a reading of Rule 242(1) of the Court Rules.
Thus,
reverting to Rule 449 the applicant or a party seeking to utilize the
rule for relief can file a chamber application to a judge or a court
application. The fact that the party has to notify interested parties
does not work to convert the chamber application to a court
application. It is on this basis that I have dealt with this chamber
application albeit it being opposed. I also note that in terms of
Rule 229C, the adoption of an incorrect procedure between a court and
chamber application does not ground dismissal of the application. I
thus refused the relief of dismissal which the first respondent had
prayed for in para 11 of its opposing affidavit.
To
conclude my judgment, it is my considered view that this application
for reasons I have pointed out lacks merit and bona
fides.
It is as already alluded to a clear abuse of the court process.
The
matter cannot just end with its dismissal because there is no
gainsaying that the applicant will relent his abuse of the court
processes. He is the kind of person who is so litigious over
frivolous and baseless issues that a sanction is necessary as
proposed by the first respondent to stop him from abusing the court
process. See Munonyara
v
CBZ
Bank Ltd & Ors HH91/15.
The
first respondent has cited the judgment of this court in City
of Harare
v Tendai
Susan Masamba
HH330/16 to the effect that courts will shut their doors justifiably
to curb abuse of their processes; see also Mhiri
v
Mapedzamombe
1999
(1) ZLR 561. I have also noted from the judgments of Makoni
J
involving the applicant in Ignatius
Masamba v
Director
of Zimsec HH701/16
and Ignatius
Masamba v
ZTEDC
HH699/16
that the learned judge noted in both cases that the applicant was
given to dwelling on irrelevancies which were incomprehensible to a
great extent. In both cases which the learned judge dismissed, the
applicant was debarred from issuing any process out of this court
without first seeking the leave of the court. The two judgments were
delivered on 9 November, 2016.
The
application before me was filed on 7 November, 2016.
The
learned judge's order did not affect process already filed before
the court. This notwithstanding, I consider that it is proper for me
to take into account the two matters as clear evidence that it is
within the applicant's disposition to institute vexatious and
frivolous proceedings and to abuse the process of court. There is
need to protect other litigants from abuse as well.
In
my judgment, the application in this case bordered on contempt of the
judge and the courts.
It
is clear that there was no basis for a Rule 449 let alone Rule
449(1)(b) invocation which was apparent or proven. Chigumba
J's judgment is clear as crystal. There is nothing to correct or
clarify. That the applicant disagreed with the judgment is a
different matter which is not remedied by Rule 449. The judgment
however clearly shows that the applicant's claim was not sound at
law.
For
abusing the judge and court as well as for unnecessarily citing the
Judicial Services Commission in circumstances where the reasons
thereof are not clear other than to bring it to the Commission's
attention how the applicant had little regard for the judge, a
punitive costs order as prayed for by the first respondent will be
justifiable.
I
also propose to issue a decree of perpetual silence against the
applicant. Such an order is drastic in its nature and effects as in
essence I have to order the applicant to abandon this action
causa,
that is, the one dismissed by Chigumba
J in
case no. HC6970/16. It is akin to an order for permanent stay of
proceedings; compare Sibanda
v
Attorney General & Anor
SC44/07. The case is frivolous and vexatious and without legal basis.
See
Ashman
(Private) Limited v
Harare Car Breakers Sales & Repairs (Pvt) Ltd & Bobby
Maparanyanga
HH26/2004.
Admittedly,
this court plays a central role in marriage dissolutions and
consequential relief. The court cannot however be expected to nor is
it empowered to set conditions under which a man who wishes to marry
should pay lobola.
For
the avoidance of doubt, in the application dismissed by Chigumba
J
in HC6970/16, the applicant had sought the following relief as set
out in his draft order:
“IT
IS ORDERED THAT:
1.
The applicant be and is hereby granted his wish to be allowed to pay
lobola at his own convenience on a date to pay that he will request
from the in laws, only if the respondent is a virgin.
2.
The respondent is ordered to stop her part in the beaming.
3.
With no order as to costs.”
The
applicant has no right of action under any cognizable law in this
jurisdiction and it is therefore justiciable to order him to abandon
the action by issuing a decree of perpetual silence.
Disposition
In
the result, I make the following order;
1.
The chamber application be and it is hereby dismissed.
2.
A decree of perpetual silence is hereby granted against the applicant
with regards any claim which the applicant may make seeking an order
of court to permit him to marry the second applicant and any
consequential or alternative relief.
3.
The applicant shall pay the first respondent's costs on the legal
practitioner and client scale.
Kantor
& Immerman,
1st
respondent's legal practitioners
