CHITAPI
J:
I
heard this matter on 20 November, 2015 and reserved judgment. The
preparation of my judgment has taken longer than expected on account
of my deployment to the Criminal Division of this court in January,
2016.
The
delay in compiling this judgement is therefore attributable to the
sheer volume of work which I have had to contend with in the Criminal
Division. I have also had to peruse reference records Case No's
HC1589/13, HC617/15 9849/13 and HC10625/13 which are quite voluminous
as these cases bear on the determination of this application.
Turning
to the matter itself, this is an application in which the applicant
seeks the following relief as set out in his draft order;
“1.
Application for rescission in terms of common law of the judgement by
her Ladyship Tsanga J HC1589/13 (HH424/13) given in favour of the 4th
respondent is hereby granted.
2.
Alternatively application for rescission in terms of rule 449(1) of
the High Court Rules, of the judgment by Ladyship Tsanga J in
HC1589/13 (HH424/13) is hereby granted.
3.
The respondent's (sic) be and hereby ordered to pay costs of suit
on attorney client scale.”
The
gravamen of the application is to be gleaned from para 14 of the
applicant's founding affidavit in which he stated as follows:
“14.
That, this is an application for rescission of judgment in terms of
the Common Law in case no. HC1589/13 (HH424/13) on the basis that the
original order was obtained by fraud perpetrated by the 4th
respondent. Alternatively, this an application for rescission in
terms of R449(1) of High Court Rules.” High Court Rules.”
The
applicant's allegations of the fraud allegedly committed by the
fourth respondent are set out in para 15 of the founding affidavit in
the following wording;
“15.
That, the application for rescission of the judgement in HC1589/19
(HC424-13) in terms of common law is being sought because the
applicant believes that the 4th respondent fraudulently misled the
court into believing that the late Brian Jones Rhodes transferred
shares of the two companies Beverly East Properties Pvt Ltd and Karoi
Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”
It
is therefore necessary in determining this matter to set out the
background to the dispute.
In
Case No. HC1589/13 which was disposed of by Tsanga J, the applicant
in the application before me was not a party.
The
fourth respondent in casu was the second respondent in HC1589/13.
It
is convenient to briefly set out the issues which fell for
determination by TSANGA J.
In
the said application, the applicant was a firm of legal
practitioners, Honey & Blackenberg. The legal firm held a sum of
US$70,000 in its trust account. The money had accrued on account of
monies collected by that firm as rentals due to two companies namely
Beverley East properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd.
The companies own certain immovable property which was being managed
by Robert Root & Company Estate Agents. Robert Root & Company
Estate in turn engaged Honey & Blackenberg to be its legal
practitioners for purposes of collecting rentals accruing on the
properties from various tenants leasing them.
Robert
Root & Company terminated its agency for the companies, Honey &
Blackenberg however remained accepting into their trust account
payments made by some of the tenants.
It
is the accumulated payment which totalled US$70,000.00 which led
Honey & Blackenberg to petition this court for a declaratory
order as to whom the money should be paid.
The
legal firm was faced with claims from 9 persons who lay claim to the
money. The 9 claimants who were cited by Honey & Blackenberg in
its application for the declaratory order granted by TSANGA J were
the first and third-tenth respondents in casu.
TSANGA
J in the application for the declaratory order or interpleader
granted an order in the following terms on 20 November, 2013.
1.
That the second respondent, Terence Cobden Rhodes as claimant in his
capacity as Trustee of Phoenix Trust in whom the companies are held,
is the lawful shareholder of the two companies.
2.
That the second respondent, upon lodging with this court a valid
Trust document effected by the deceased during his life time
transferring the properties to the Trust, shall be entitled to
require the Registrar of this Honourable Court to release to the
Trust, the sum of $70,000.00 deposited with him in terms of r206(1)
of the High Court Rules 1971.
3.
That the third to the ninth respondents shall pay the costs of the
applicant and the first and second respondents.
The
above stated order is the one which the applicant prays that it be
rescinded on the grounds of it having been obtained through fraud
committed by the second respondents as referred to in TSANGA J's
order.
If
not falling for rescission on the basis of fraud, then it should be
rescinded on the basis of r449(1) of the High Court Rules, so the
applicant prays in the alternative.
It
is common cause that the two companies at the centres of the dispute
were established by one, Brian James Rhodes who passed on at Harare,
on 29 July 2006. The applicant in the application before me is the
executor dative of the estate of the said late Brian James Rhodes
(hereinafter called “deceased”).
As
I have already indicated, the applicant was not a party in case No
HC1589/13 determined by TSANGA J.
The
learned judge dismissed claims to ownership of the companies in issue
by the third respondent Gideon Hwemende. This respondent is first
respondent in casu. The first respondent had purported to appoint the
fifth-tenth respondents as directors in one or other of the two
companies to protect his interests.
With
the dismissal of his claim, any claims which the fifth-tenth
respondents may have sought to assert similarly fell through or
suffered the same fate.
TSANGA
J ruled that the lawful shareholder of the two companies was deemed
to be Phoenix Trust whose assets included the corporate stock of
those companies.
Her
ladyship also found that the fourth respondent herein was a Trustee
in Phoenix Trust and a director in both companied owned by the Trust.
She
further adjudged that the fourth respondent in his capacity as
Trustee of Phoenix Trust had legal title to the Trust property and
that since the Trust was the holder of corporate stock in the two
companies, any benefits accruing to the companied in turn accrued to
the Trust as shareholder.
In
concluding her analysis of the facts, TSANGA J stated as follows;
“Since
the Trustee purports that the companies were transferred to the Trust
some years ago by the late Brian James Rhodes, there must be in
existence evidence which can be produced in support of this claim.
Such Trust document was not part of the annexures in this
application. As such; before the monies being held can be released,
evidence of the Trust legally owning the companies must be furnished
to this court through the Registrar of the High Court.”
The
learned judge then made the order which I have quoted (supra).
This
application is hotly contested and pits the applicant against the
fourth respondent.
The
applicant's contentions from a reading of his affidavit can be
summarized as follows in subsistance;
(a)
That the fourth respondent as trustee of Phoenix Trust (hereinafter
called the Trust) had in the application before TSANGA J
“fraudulently alleged that the late Brian James Rhodes during his
lifetime had transferred the entire shareholding of the two companies
(Beverley East Properties and Karoi Properties) into the Trust”.
(b)
That he knew such fact to be untrue.
(c)
That the court had relied upon the fourth respondents' fraudulent
allegation to hold that the fourth respondent as Trustee of the Trust
was the lawful shareholder in the two companies and further ordering
that “upon lodging with Registrar of the High Court, a valid Trust
Deed effected by the deceased the late Brian James Rhodes during his
lifetime transferring ownership of the two companies to the Trust, he
shall be entitled to the sum of $70,000.”
(d)
That the fourth respondent knew that the Trust was not given any
shareholding in the companies but only loan accounts as shown on the
schedule of assets to the Trust Deed.
(e)
That there is no documentary proof of any transfer of shares in terms
of the Deed of Trust.
(f)
That the fourth respondent deliberately misled the court and
perpetuated a fraud because he knew that the two companies belonged
to the deceased and consequently to his estate. He thus led false
testimony which made TSANGA J rule that the said fourth respondent
was entitled to the rentals from the two properties.
(g)
That the estate had a vested interest in the case determined by
TSANGA J as it was the one entitled to the rentals.
(h)
That TSANGA J's judgement has the effect of dissipating a portion
of the deceased's estate and affected its winding up and final
distribution.
(i)
That further TSANGA J, would not have granted the judgement she gave
had she not been misled by the fourth respondent.
As
such, the applicant therefore claimed rescission of that judgment at
common law or in terms of r449(1) of the High Court Rules.
The
applicant attached to his application a supporting affidavit of
Elizabeth Anne Rhodes who is described as the widow of the deceased.
Her purported affidavit was impugned by the fourth respondent for
want of conformity with the requirements of an affidavit recognizable
by the court. The affidavit did not comply with the provisions of the
High Court (Authentication of Documents) Rules RGN 995/1971.
The
applicant objected to the affidavit on the basis that it was not
properly authenticated since the purported notary public before whom
it was signed was not sufficiently identified.
The
applicant did not present any argument against the invalidity of the
purported affidavit. It is not necessary to dwell on this matter
unnecessarily.
The
fourth respondent has submitted that the purported affidavit is a
nullity and that it should be struck off the record.
Counsel
for the fourth respondent relied on the case McFoy v United Africa
Co. Ltd 1961 (3) All ER 1169 (CPC) in which the celebrated British
Judge LORD DENNING reasoned that a void act being a nullity
necessarily meant that it was as good as not there. That being, it
did not need to be set aside.
The
purpose of having documents authenticated especially those executed
in foreign countries is to ensure that they are genuine before the
court can use them.
With
respect to affidavits, there is more to it than simply authenticating
or certifying a document.
An
affidavit is a piece of evidence and because the person deposing to
it is not before the court, such person is required to swear to his
or his deposition before a lawfully appointed or authorised person to
administer the oath or affirmation.
In
terms of the High Court (Authentication of Documents) Rules 1971 an
affidavit properly sworn to outside Zimbabwe is admissible in court.
It follows that if not properly sworn, it is inadmissible.
The
onus to prove that the purported affidavit of Elizabeth Anne Rhodes
was in fact an affidavit and that it was admissible in evidence in
court fell upon the applicant. See Dique v Viljeon 2007 ZAGPHC 206.
He
did not discharge the onus.
I
therefore hold that the purported affidavit of Elizabeth Anne Rhodes
is not admissible and as I observed, no argument was advanced by the
applicant to the contrary. I therefore disregard it.
Outside
of the attack on the affidavit of Elizabeth Anne Rhodes, the fourth
respondent has vehemently opposed this application on other grounds
both procedural and on the merits.
The
fourth respondent took a point in limine that the applicant did not
have locus standi to bring this application. The objection to the
applicants' locus standi is twofold:
(i)
The fourth respondent averred that the applicant was only a curator
bonis of the estate of the deceased. Section 22 of the Administration
of Estates Act [Chapter 6:01] provides for the appointment and powers
of a curator bonis. The section provides as follows:
“22(1)
In all cases where it may be necessary or expedient to do so, the
Master may appoint a curator bonis to take custody and charge of any
estate until letters of administration are granted to executor
testamentary or dative for the due administration and distribution
thereof.
(2)
Every such curator bonis may collect such debts and may sell or
dispose of such perishable property belonging to the estate as the
Master shall specially authorize.
(3)
Every appointment made by the Master of any curator bonis shall, upon
the application of any person having an interest in such estate be
subject to be reviewed and confirmed or set aside by the High Court
or any judge thereof; and the High Court or judge by whom such
appointment is set aside may appoint some other fit and proper person
to be curator bonis.”
The
fourth respondent's counsel submitted that the powers of a curator
bonis are limited.
The
powers which he may exercise are clearly set out in s22(2) as quoted
above.
A
curator bonis is a caretaker of a deceased estate. He protects estate
and I would say that he ensures that the estate is preserved as it is
until the executor testamentary or dative takes over. During this
period of taking care of the estate, the curator bonis may collect
debts or dispose of perishable assets of the estate. The curator
bonis powers in this regard are exercised under the specific
authority of the Master.
In
this application the applicant in para 1 of his affidavit deposed to
the fact that he was acting in his capacity of executor dative. He
attached to the affidavit what he called “Annexure 'A' being
letter of administration”.
Annexure
'A' aforesaid is however “letters of confirmation” of the
applicants' appointment as curator bonis in the estate of the
deceased.
TSANGA
J's judgment was delivered on 20 November, 2013. The letters of
confirmation of the applicant as curator bonis were issued on 1
November, 2013. Quite clearly the applicant could not as at 20
November, 2013 have had power to engage in the court case HC1589/13
before TSANGA J.
The
applicant's powers would only have derived from s22(2) of the
Administration of Estates Act.
Even
if a wide interpretation was to be accorded s22(1) that the applicant
as curator bonis had custody and charge of the estate, the money in
question which formed the basis of the application before TSANGA J
was not estate property but would have accrued to the companies as
separate legal entities with a separate existence at law.
I
therefore find merit in the objection that the applicant would not
have had locus standi to seek the rescission of TSANGA J's order.
In
response to the fourth respondent's point in limine on locus standi
the applicant in para 3.1 of the answering affidavit simply denied
the allegation that he lacked locus standi. He then attached letters
of administration appointing him executor dative of the estate of the
late Brian James Rhodes.
The
appointment was made on 26 February 2014. Judgment HC1589/13 had
already been handed down on 20 November 2013.
The
applicant has argued in his heads of argument that he erroneously
attached the letters of his appointment as curator bonis to his
founding affidavit instead of the letters of appointment as executor
dative attached to his answering affidavit.
He
did not explain how the mistake arose. He is required to do so.
He
argues that there is no prejudice to the fourth respondent caused by
the error because when the applicant instituted the present
application on 23 January 2015, he was already the duly appointed
executor dative.
The
parties are agreed on the legal position regarding the fact that only
an executor of a deceased estate is reposed with authority and power
to represent that estate.
The
remarks of KUDYA J in Nyandoro & Anor v Nyandoro & Ors
HH89/08 in which he referred to the case of Clarke v Bernade N.O &
Two Ors 1958 R&N 358 (SR) to the effect that the executor of a
deceased estate is the only person with locus standi to bring a
vindicatory action relative to the property alleged to form part of
the estate are correct.
The
fourth respondents' counsel referred to these authorities.
The
applicants' counsel referred to Wille's Principles of South
African Law, 8th ed though the precise page from which he quoted as
follows was not provided. Counsel quoted as follows:
“It
follows that the executor alone can sue and be sued in respect of
estate matters. Legal proceedings are brought or defended by him in
his capacity as executor for he is the legal representative of the
deceased”.
The
applicants' counsel further referred to the cases of Snyman v
Basson N.O 1995 TPD 368 @ 374A and Greenberg v Estate Greenberg 1955
(3) SA 361 to buttress his submissions on the same point.
The
legal position is therefore properly ventilated.
The
applicant has submitted that his annexing of correct letters of
appointment as executor dative in the answering affidavit should be
taken as having cured the defect or mistake in the founding
affidavit.
Counsel
for the applicant cited the case of Baeck & Co SA (Pty) Ltd v Van
Zummeren & Anor 1982 (2) SA 112 @ 119 (W) as authority that a
deficiency in authority can be cured in retrospect through the
filling of an answering affidavit. GOLDSTONE J as quoted on p119 C-D
stated:
“the
right to move for the dismissal of the application on the ground of
lack of locus standi is with respect hardly what one would envisage
as constituting a vested right..
If
in law the deficiency in his authority can be cured by ratification
having retrospective operation, I am of the opinion that he should be
allowed to establish such ratification in his replying affidavit in
the absence of prejudice to the first respondent.
It
is clear that in this case, subject to the question of ratification
and retrospectivity, the first respondent would not be prejudiced by
such an approach.”
The
applicant further relied on various other South African decision
namely, Evangelical Lutheran Church in Southern Africa (Western
Diocese) v Sepeng & Anor 1980 (3) SA 958 (B) and Merlin Gerin
(Pty) Ltd v All Current and Drive Centre (Pty) Ltd 1994 (1) SA 659C.
The
two decisions make the same point made in the Baeck & Co SA (Pty)
Ltd v Van Zummeren & Anor that where an applicant lacks authority
to institute proceedings which he will have commenced, he can cure
the defect by providing proof through ratification and further
providing proof of pre-existing authority.
The
applicant has submitted that this court should adopt the same
reasoning and approach and hold that the defective or invalid
authority erroneously filed by the applicant with his founding
affidavit was ratified by the filing of proper letters of
administration annexed to the answering affidavit.
The
fourth respondent's counsel has argued that to allow the correction
of a defective founding affidavit through the introduction of new
matter in an answering affidavit would go against the accepted
practice of this court.
He
submitted that this court has always followed the practice that in
considering applications in application proceedings, the applicants'
case is built upon the founding affidavit. If on the founding
affidavit, no cause of action is disclosed, then the application must
fail.
Counsel
has cited a plethora of cases including Mobil Oil Zimbabwe (Pvt) Ltd
v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (HC) and quoted the court's
pronouncement therein as follows at p70 C-D:
“It
is a well-established general rule of practice that new matter should
not be permitted to be raised in an answering affidavit. This has
been the settled practice of our courts at least since the matter was
adverted to in Coffee, Tea and Chocolate Co Ltd v Cape Trading 1930
CPD 81 at 82 and Air Zimbabwe & Ors v Zimbabwe Revenue Authority
HH96/03 wherein a number of decisions are quoted, being authority
that in application proceeding, an applicant stands or falls on his
or her founding papers and may not raise a different cause of action
in his or her answering affidavit.”
It
is necessary in my view to just refresh on what a cause of action is.
In
simple terms a cause of action would be constituted by a totality of
facts necessary to be proved by the applicant or the plaintiff to
justify a right to sue or enforce a right against the opposing party
being the respondent or defendant as the case may be.
Malaba
JA (as he then was) in the case Traude Alison Rogers v Elliot
Grenville Kern Rodgers and Master of High Court SC64/07 quoted the
case of Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 H 54
E-F, thus:
“A
cause of action was defined by LORD ESTER MR in Read v Brown (1888)
22 & B 131 as every fact which it would be necessary for the
plaintiff to prove if traversed in order to support his right to the
judgment of the court.
In
the same case LORD FRY at 132-133 said the phrase meant everything
which if proved gives an immediate right to judgment.
In
Letang v Cooper (1965) QB 232 at 242-3 DIPLOCK LJ (as he then was)
said a cause of action is simply a factual situation, the existence
of which entitled one person to obtain from the court a remedy
against another person.”
The
learned judge also referred to the cases of Patel v Controller of
Customs & Excise HH216/89, Hodgson v Granger & Anor HH133/91,
Dube v Banana 1998 (2) ZLR 92 (H).
I
would also add the instructive judgment of MAKONI J in Meikles
Limited v Zimbabwe Stock Exchange & Alban Chirume HH66/16.
Having
defined a cause of action, the next question to be addressed is
whether the applicant established a cause of action on the founding
affidavit.
A
person or juristic entity which lacks locus standi cannot in my view
be said to have established a cause of action.
This
is so because an applicant lacking in legal capacity is not
recognizable by the court.
The
applicant in this case averred in the founding affidavit that he was
the executor dative of the Estate Late Brain James Rhodes. He averred
that he derived his powers from annexure 'A' being his letter of
administration.
Annexure
'A' as is common cause is a letter, not of administration but of
confirmation as curator bonis.
The
applicant did not give any other details of his appointment.
Had
the applicant alleged facts pertaining to the details of his
appointment as executor dative, then the court could have appreciated
that there was a mix up between the details of his appointment asn
the alleged wrong annexure. The correction sought to be made by a
different annexure in the answering affidavit could then have made
sense. Annexure 'A' to the answering affidavit could in such
circumstances have been properly condoned.
In
my view, a distinction should be made between ratification of
questioned authority and a substitution of different legal persona.
In
this case the applicant cannot be said to have ratified the defective
or invalid authority.
If
annexure 'A' to the founding affidavit suffered from some defect,
one could then seek to authenticate it by ratification. Ratification
cannot be achieved through substitution.
This
is what the applicant seeks to do.
Annexure
'A' to the founding affidavit which the applicant presented as
granting him powers to bring this application does not suffer from
any legal defect. No ratification of the same is required. It is a
valid document which however precludes the applicant from making a
claim as the one in casu.
The
document allows the applicant to make certain defined claims.
The
South African authorities cited by the applicant in support of his
assertion that he can properly remedy the defect through ratification
do not cover a scenario as the one before the court.
The
applicant wore two hats as curator bonis and as executor dative. Both
hats provide for defined powers under the Administration of Estates
Act.
The
applicant chooses which hat to wear in order to exercise his powers.
He chose a hat to wear in exercising powers outside the parameters of
that hat. This rendered his actions nugatory.
I
am persuaded that the remarks of Lord Denning in McFoy v United
Africa Co Ltd (1961) 3 ER 1169 being a case quoted by the fourth
respondent's counsel to the effect that a void act is in law a
nullity and that a nullity as the word connotes means that there is
nothing, are apt in this case.
One
cannot cure a nullity.
See
Hativagone & Anor v CAG Farms (Pvt) Ltd SC42/2015.
Another
way of looking at the issue of locus standi raised by the fourth
respondent is to consider it as an exception that the applicant lacks
locus standi and consequently no cause of action arises from his
papers.
An
exception that there is no cause of action if upheld cannot be cured
through substitution in order to found a cause of action. This would
be tantamount to allowing the applicant to bring a new cause of
action through a replying affidavit.
In
this case, the applicant was not without recourse.
Having
realised that he had relied on a valid legal document which however
did not permit him to exercise the powers he sought to invoke, he
should have simply withdrawn his application and commenced it afresh
dorning the correct hat of executor dative and attached the correct
legal authority.
If
the matter had commenced not by application but by action, the
applicant could have applied to amend his pleadings or papers; see
Arafas Mtausi Gwarazimba v AKA Jutie Panagiota Mercuri N.O. and
Master of the High Court HH168/15.
In
application proceedings an answering affidavit seeks to answer
factual averment made in the opposing affidavit. The answering
affidavit should not be used to cure a legal defect and build a case
which on the founding affidavit is not established.
I
am no persuaded to accept that the applicant could properly cure the
defect in his founding affidavit on locus standi through the
production of what he purports to have been the authorising document
for his case in the replying affidavit.
The
applicants' case must therefore fail.
Apart
from my findings for dismissing he application as set out above, I
would still have dismissed the application on the merits.
The
applicants' case is grounded in the common law right of an affected
party to seek rescission of judgment granted in default and the
corresponding power of this court to rescind its judgment.
Alternatively,
the applicant seeks to rely on r449(1); the rule reads as follows in
part:
“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)…….
(c)…….”
The
Supreme Court judgment in Austin Munyimi v Elizabeth Tauro SC41/2013
reported in 2013 (2) ZLR 291 provides guidance on the interpretation
and purport of the rule. The learned judge GARWE JA stated as follows
at p294 F-295 A:
“It
is the general principle of our law that once a final order is made,
correctly reflecting the true intention of the court, that order
cannot be altered by that court.
Rule
449 is an exception to that principle and allows a court to revisit a
decision it has previously made but only in a restricted sense.
Where
a court is empowered to revisit its previous decision, it is not,
generally speaking, confined to the record of proceedings in deciding
whether a judgment was erroneously granted.
The
specific reference in r449 to a judgment or order granted in the
absence of any party affected thereby envisages a situation where
such a party may be able to place facts before, the latter court,
which facts would not have been before the court that granted the
order in the first place – see Grantully (Pvt) & Anor v UDC Ltd
2000 (1) ZLR 361 (S) at 364 H-365 A-D.
Further,
it is also established that once a court holds that a judgment was
erroneously granted in the absence of a party affected, it may
correct, rescind or vary such without further inquiry. There is no
requirement that an applicant seeking relief under r449 must show
“good cause”: Grantully (Pvt) Ltd & Anor v UDC Ltd supra at
365, Banda v Pitluck 1993 (2) ZLR 60 H at 64 F-H, Mutebwa v Mutekwa &
Anor 2001 (2) SA 193 (TK) at 1991–J and 200 A-B.”
The
learned judge drawing on and adopting the remarks of JAFA J in
Mutebwa v Mutebwa supra, proceeded to point out that a distinction
had to be made between the approach to be adopted by the court in
instances where the court or judge revisits its or his judgment mero
motu to correct, vary or rescind it in terms of r449 and where the
judgment is revisited on application of an affected party who was
absent when the judgment or order was made.
Where
the court or judge revisits the judgment mero motu, the court or
judge is limited to the four corners of the record of proceedings.
Where
however the rule has been invoked upon the application of an affected
party who was absent when the judgment or order being revisited was
made, the court or judge is not bound to the four corners of the
record. The court is enjoined to take into account the facts set
forth in the affidavits filed with the application. The error in such
a case does not necessarily have to appear ex facie the record.
It
therefore clear in my reading of the authorities cited above that in
either case, that is whether the court acts mero motu or an
application, there should exist an error to be corrected.
It
is this error which must be established by the applicant.
The
next issue is to define what amounts to an error.
In
the Munyimi v Tauro case, supra, the learned GARWE JA stated that:
“what
amounts to an error has also been the subject of a number of
decisions.”
He
then gave examples of the Banda v Pitluk case wherein a default
judgment had been granted against a defendant who had entered
appearance to defend. The appearance to defend had not been brought
to the attention of the judge meaning that had the existence of the
appearance to defend been brought to the attention of the judge, he
would not have granted judgment in default of appearance to defend.
In
the Mutebwa v Mutebwa case, a false return of service purporting that
the Deputy Sheriff had affected personal served was used to obtain
judgment.
In
the Munyimi v Tauro case, there was a discrepancy between the sale
agreement which had been attached to the summons and declaration with
respect to the parties identifications and the alleged witnesses.
GARWE JA held that the discrepancies were such that had the judge who
granted judgment been made aware, he would not have granted judgment
against a witness to the sale agreement.
The
question as to what amounts to an error was not addressed directly by
the Supreme Court in the Munyimi v Tauro's case.
The
learned judge in fact gave examples of errors which would pass to
satisfy the requirements for correcting, rescinding or varying a
judgment.
An
error is a mistake.
A
judgment granted in error or erroneously would mean that the court or
judge committed a mistake or mistakenly granted the judgment. Put in
another way, the enquiry should be that the applicant needs to
establish the existence of a fact or material which influenced or
moved the court to grant judgment. It must be shown that the court
would otherwise not have granted judgment but for that fact or
material that becomes the error.
Rule
449(1)(a) as quoted above comes into play where the judgment sought
to be revisited was either erroneously sought or erroneously granted.
See Machoto v Mudimu & Anor HH443/13.
A
judgment in my view is erroneously or mistakenly sought by a party
who seeks a judgement whilst labouring under a mistaken belief that
he can properly seek judgment.
A
simple example is like the one given by GARWE JA in the Munyimi v
Tauro case whereby he quoted the case of Banda v Pitluk. If the
plaintiff or the applicant applies for default judgment oblivious of
the fact that appearance to defend or notice of opposition has been
filed, such application will have been erroneously made and if the
court grants the application it will have granted it in error too.
I
do not find that TSANGA J granted the application in case No
HC1589/13 in error as envisaged in r449(1). What was the error if one
may ask?
The
parties presented argument and the learned judge considered the
papers filed before her and the arguments put forward in support
thereof. The learned judge then delivered her judgment with reasons
for the order which he made.
It
is noted that none of the losing claimants or respondents appealed
against the judgment.
The
applicant avers that the judgment in question was granted after the
court had been fraudulently misled into believing that the deceased
had transferred shares into his two companies into Phoenix Trust.
A
fraud and an error are two different legal concepts.
I
believe that within the context of r449(1)(a) the state of affairs as
argued by the applicant cannot ground a setting aside of the judgment
under that rule.
I
agree and endorse the remarks made by MAKARAU J (as she then was) in
Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H) at 172 E-H that:
“Rule
449 is a step to correct an obviously wrong judgment or an order.
The
power given the court under the rule is discretionary and, like all
such powers, must be exercised judiciously.….
A
review of the authorities would appear to suggest that the rule is
designed to correct errors made by the court itself and not an
omnibus through which new issues and new parties are brought before
the court for trial.”
The
applicant in this case is clearly seeking to bring in new issues
which were not before TSANGA J.
He
seeks to argue that the deceased never transferred any shares in the
two companies to the Trust.
TSANGA
J's judgment is clear in that she had to determine competing claims
made to Honey and Blackenberg by various parties, to rental monies
from the two properties as earlier described.
She
made a determination that the Trust represented by the fourth
respondent herein was the lawful shareholder in the two companies.
The judge then issued a conditional order that the fourth respondent
herein was required to lodge a valid trust document and evidence of
proof of transfer of the properties to the Trust with the registrar
before the US$70,000.00 could be released to him.
There
was clearly no error committed as envisaged in r449(1).
The
applicant seeks to demonstrate that no shares were ever transferred
by the deceased.
The
court did not grant a judgment in error because TSANGA J directed
that proof be furnished.
The
order sought by the applicant in terms of r449(1) must fail.
It
leaves me to deal with the other ground for seeking the rescission of
the court judgment in issue.
The
applicant seeks to rely on the powers of the court to rescind its
judgment under the common law.
The
applicant avers that the fourth respondent fraudulently alleged that
the late deceased during his life time transferred the entire
shareholding of the two companies to the Trust represented by the
fourth respondent. The applicant in support of his claim to the
alleged fraudulent misrepresentation by the fourth respondent relied
as outlined in para 19 of his affidavit on copy of the Trust Deed
which lists the schedule of assets to be received by the Trust as two
loan accounts as detailed therein.
The
applicant alleged in para 20 of his founding affidavit that “there
is no documentary proof of any transfer of shares in terms of which
the Trust obtained ownership or control of the properties held by the
two companies.”
The
fourth respondent has denied the allegations of fraudulent
misrepresentation of facts and attached to his opposing affidavit
copies of share certificates, resolutions by the companies, the share
registers and statutory returns which show the shareholding of the
said two companies as being Phoenix Trust.
The
applicant in the answering affidavit questions the authenticity of
the documents.
He
alleges that the documents are fraudulent and intended to defraud the
Estate which he represents. He however makes a startling allegation
that the proof of the fraud lies in that the records of the two
companies have disappeared from the Companies Office a government
department.
Proof
that the Companies Office lost the documents was not produced.
In
short the applicant does not have and cannot produce records to back
his claims.
In
my view, this put paid to any claims which the applicant may seek to
advance.
How
does he claim falsity of documents without producing authentic
documents to counter the alleged fraudulent documents.
What
the applicant is doing is simply to make allegations which are not
backed by any documentary evidence as to what he claims to the court
to be the correct shareholding of the companies.
Ownership
of companies is evidenced through documents of ownership in the form
of share certificates, share registers, accompanying returns and
other such officially recognised documents which collectively or
individually prove ownership.
What
the applicant is simply saying is that he does not have proof of the
existing ownership of the two companies by the deceased. He cannot
lay his hands on any of the company records at the Companies Office
because the documents are missing.
In
his view and dispute his handicap, he avers that anyone purporting to
hold ownership of the companies is doing so fraudulently though he
does not have any counter documents.
One
wonders on what basis even if the judgment were to be set aside, the
applicant would prove to assert the existing ownership of the
companies by the deceased.
The
applicant also appears to approbate and reprobate at the same time.
I
have considered case records HC10573/13 and HC10625/13 referred to by
the fourth respondent in his opposing affidavit.
In
case No HC10573/13, the applicant as curator bonis filed an affidavit
in which he sought the joinder of the Estate of the deceased, and the
Master of the High Court as 11th and 12th respondents in case No.
HC1589/13 being the same case whose judgment he now seeks to have set
aside.
He
withdrew the application on 18 July, 2014.
In
his founding affidavit in paras 4 and 5 thereof, he averred that one
Laurence Erasmus Vermark and Terrence Cobden Rhodes (the fourth
respondent herein) were Trustees of Phoenix Trust. He described the
said the Trust as a sham which was not registered and nonexistent. He
averred that it was purportedly created by the deceased.
The
applicant in the same application HC10573/13 sought that the estate
be joined as a respondent to case No. HC9849/13.
Case
No HC9349/13 was an application by the first respondent in this
application for rescission of the judgment by TSANGA J in HC1589/13.
The first respondent claimed to own 60% of the two companies'
shareholding. Case No 9849/13 was dismissed with costs on the higher
scale by MATHONSI J on 21 May 2015.
When
I further perused the documents in HC10573/13, I noted that one
Laurence Erasmus Vermark had deposed to an affidavit on 20 May, 2013.
He made various allegations of how he had been intimidated and
threatened if he did not resign as a director of the two companies.
What
attracted my interest as being relevant to this application is that
the said deponent to the affidavit confirmed that all the issued
share capital in the two companies in issue were held the Phoenix
Trust and that he was a trustee of Phoenix Trust until 25 January
2012 when he resigned. He confirmed that the fourth respondent was
and is a trustee of the said trust together with one Ken Regan. The
secretaries of the companies according to the deponent were
Accounting Executor Services (Pvt) Ltd.
The
applicant in the application before me does not say anything about
this information which he is aware of. He only states that the fourth
respondent misrepresented that the Trust owned the shareholding in
the companies.
In
yet another case, HC10625/13 filed on 10 December, 2013, the
applicant as curator bonis of the estate aforesaid, made an urgent
application seeking in the interim, a stay of execution of TSANGA J's
judgment and for an order that the Master of the High Court should
run the affairs of the two companies pending the determination of the
joinder application which as has already been noted, he subsequently
withdrew.
The
applicant in his affidavit in HC10625/13 alleges that he carried out
a forensic audit which revealed that Phoenix Trust was a sham and
non-existent. He averred that TSANGA J had granted her judgment in
error.
I
agree with the submissions made by the fourth respondent's counsel
that the applicant seeks to mislead the court by making conflicting
depositions in the affidavits in various cases which he has filed in
this court.
None
of the previously filed cases have seen the light of the day.
The
applicant appears to be clutching at straw.
He
has no information or documents relating to the two companies to back
up his claim. He refers to a forensic audit of the companies having
been carried out. The forensic audit has remained a secret document.
He did not attach it to the present application nor to the cases to
which my attention was drawn and which I have noted in this judgment.
The
applicant appears to be on a fishing expedition.
When
the trust deed for the Trust was produced, he then created another
angle to seek the re-opening of TSANGA J's judgment. He changed
from his position that he had carried out a forensic audit which
showed that Phoenix Trust is a sham.
In
my judgment, the applicant is involved in a stalking exercise whereby
he waits by the shadows and each time a document pertaining to the
two companies comes to his attention, he tries to and devises ways to
attack and nullify it. The applicant himself has no contra evidence
or documentation to back his position.
The
question I then address is whether in such circumstances, I should be
persuaded to set aside TSANGA J's judgment using the court's
common law powers.
It
is settled law that the onus is on the applicant who seeks rescission
of judgment granted in default at common law to demonstrate
sufficient cause for the relief to be granted. See Shinga Express
(Pvt) Ltd v Hubert Davies (Pvt) Ltd 1998 ZLR, Uzande v Katsande 1988
(2) ZLR 47; Kaiser Engineering (Pvt) Ltd v Makeh Enterprises Ltd
HB6/12.
In
Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS) GUBBAY JA stated as
follows:
“Furthermore,
it is firmly established that a judgment can only be rescinded under
the common law on one of the grounds upon which restitution in
integrum would be granted, such as fraud or some just cause,
including Justus error ….
Certainly
a litigant who is himself negligent and the author of his own
misfortune will fail in his request for rescission – see Voet
2.4.14; Gorenewald v Gracia (Edms) Bpk 1985 (3) SA 9687 at 972 C-D
and G-H.”
See
also Jones v Strong SC67/03 and Yeng Goo Chao v Stalin Man Man
SC3/15.
In
my judgment, the court does not enjoy an inherent discretion to
rescind its judgment under the common law outside the parameters of
ground upon which restitutio intigrum would be granted. See Childerly
Estate Stores v Standard Bank of SA Ltd 1924 OPD 163.
It
is important in cases where rescission is sought under the common law
to appreciate that the court which granted the judgment being
revisited will have become funtus officio after having considered the
merits of the dispute and given a definitive judgment thereon.
The
ordinary and accepted way to revisit the judgment is by way of appeal
so that a higher authority considers the judgment.
A
court faced with an application to revisit its judgment as in casu
must approach the application mindful of the fact that it will have
exhausted and exercised its authority which it cannot do twice.
In
casu the applicant alleges fraud as the ground for seeking the
setting aside of the judgment.
The
fraud alleged to have been committed by the respondent and which
influenced TSANGA J to grant the order which she gave was said to
have manifested itself in the fourth respondent misrepresenting that
Phoenix Trust of which he was a trustee held the issued shares of the
two companies.
The
applicant on his own does not provide evidence or proof of the
correct position regarding the shareholding.
Fraud
cannot be proved by a mere say so.
The
applicant in order to show good cause should at least have provided
tangible evidence that the correct shareholding of the companies is
otherwise different from that which the fourth respondent gave it out
to be.
The
fourth respondent has in the opposing affidavit gone into detail to
prove his assertions and produced official documents which prove that
Phoenix Trust owns the entire shareholding in the companies.
To
simply then attack the authenticity of the produced documents without
providing any contra proof to controvert the fourth respondent's
evidence is an exercise in futility.
As
I have pointed out, the applicant simply does not have evidence of
the shareholding of the companies.
TSANGA
J's judgment must stand because it has not been shown that she
relied on any fraudulent evidence in assessing the facts before her
in so far as the evidence of the forth respondent was concerned.
Rescission
under common law is granted under exceptional circumstances. Such
circumstances have not been demonstrated to me on a balance of
probabilities in this case. The relief sought must stand refused.
Turning
to the question of costs, the fourth respondent has applied for costs
on the higher scale and against the executor bonis or dative as the
case maybe being Oliver Masomera.
Costs
are in the discretion of the court albeit the general rule being that
costs follow the result.
Counsel
for the fourth respondent did not seek to mount any spirited argument
regarding the level of costs other than to submit that this
application is in an abuse of the court process which merited a
dismissal with costs on the attorney and client scale.
The
applicant on the other hand submitted in his heads of argument that
the applicant was seeking costs on the same scale of attorney client
scale because the fourth respondent perpetrated a fraud against the
estate of the deceased. It was submitted that the fourth respondent
did not have authentic legal documents to support his claim.
This
was a startling submission because the applicant himself did not
produce the documents which otherwise show that the fourth respondent
is misrepresenting facts.
Having
carefully considered this application, it is clear to me that the
applicant judging by the previous applications which he has filed and
lost or withdrawn, is determined to ensure that the estate of Brian
James Rhodes does not lose what may be due to it. Unfortunately, the
applicant appears to be ill advised. He needs to gather facts which
would support the claims he is making.
He
is just groping in the dark.
Already
the estate has been saddled with costs of related matters and
continues to incur additional costs. Coming to court should not be
viewed as an excursion in the park. The applicant needs to be
properly advised and put together the evidence he has including
getting proper advice on evidence.
I
reluctantly concluded that the applicant has not acted mala fide in
this application. He however must introspect and be properly advised
lest another court may rule that he is abusing the court process if
he files endless unmerited applications.
I
will not penalize the applicant nor the estate with punitive costs.
I
make the following order:
The
application be and is hereby dismissed with costs to be borne by the
Estate of the Late Brian James Rhodes.
C
Nhemwa and Associates, applicant's legal practitioners
Kevin
Arnott, 4th respondent's legal practitioners
