Opposed
Application
ZHOU
J:
This
is an application for the revival of an order by consent that was
granted in Case Number HC13123/12, and for costs of suit.
The
order in question was granted on 5 December 2012.
The
application is opposed by the respondent.
The
background facts to this application are as follows:
On
5 December 2012 this court granted an order pursuant to an
application instituted by the respondent herein under Case Number
HC13123/12. The applicants herein are the respondents in that case.
The order granted incorporated the terms of a deed of settlement
which had been signed by the parties on 19 November 2012. The
applicant's case is that the order granted in HC13123/12 has
superannuated and therefore must be revived by order of this court.
The
respondent opposes the application on the following grounds:
(a)
That the provision pertaining to superannuation of judgements and
their revival was repealed, which means that the application is
unnecessary;
(b)
That the order that is being sought to be revived has itself been
overtaken by events and; in any event, was superseded by another deed
of settlement which was executed by the parties on 20 December 2012
under Case Number HC14382/12;
(c)
That the deponent's directorship of the first applicant is being
challenged on the basis that he was fraudulently appointed as
director.
The
respondent raised the further point that the second applicant is not
properly before the court as it has not authorised its participation
in the proceedings.
The
applicant, through counsel, conceded this point in argument.
The
concession was proper, since there is no resolution by the second
applicant authorising the proceedings.
Even
the deponent to the founding affidavit does not claim to represent
it.
Properly
it should have been cited as a respondent since it is a party to the
order which is being sought to be revived.
In
the premises, in the absence of an application to join it to the
instant application or authority for it to participate in the
proceedings, the second applicant's name is struck out.
The
other objection by the respondent to the non-joinder of Tapiwa
Gurupira is meritless.
The
said Tapiwa Gurupira is not a party to the order in Case Number
HC13123/12. The objection is dismissed.
On
the merits the respondent's contention is that following the repeal
of r448 of the now repealed High Court Rules, 1971, superannuation of
judgments no longer applies, hence the application in casu is
unnecessary.
This
issue has been resolved by this court in the case of Nzara and others
v Kashumba NO & Others HH151-16 where it was held that the repeal
of the rule simply meant that the common law relating to
superannuation of judgments now applies. The court pointed to the
continued existence of r324 of the 1971 Rules.
Significantly,
the same provision has been maintained under r69(3) of the High Court
Rules, 2021.
This
provision merely restates the common law position with respect to
superannuation of judgments.
In
the heads of argument and at the hearing of the application, Ms
Sanhanga advanced the argument that superannuation applies only to
those judgments that are enforceable through a writ of execution. Put
differently, the submission was that since the judgement which is
being sought to be revived is not one that is enforceable by writ of
execution, such a judgment is not covered by r69(3) of the High Court
Rules 2021, which was r324 of the now repealed ruled of court.
It
is common cause that the judgment in casu is not sounding in money,
hence it is not enforceable by writ of execution.
The
issue of the ambit of the rule relating to revival of superannuated
judgment was dealt with by this court in Nzara & Others (Supra)
at p21 in which, after an examination of the rule in question
MAFUSIRE J said:
“In
my view, the superannuation rule may not apply to all judgments carte
blance.”
This
reasoning applies to the present case because the judgment in
question is not one which is enforceable by writ of execution.
On
this ground, I would dismiss the application.
In
view of my conclusion that the judgment being sought to be revised is
not one to which the rule relating to superannuation applies, the
issue of whether the deed of settlement was substituted becomes
immaterial.
I
do not accept, though, that the deed of settlement was overtaken by
events. The deed of settlement in HC14382/12 does not purport to vary
the order which was granted in HC13123/12.
The
pending challenge to the directorship of the deponent to the
applicant's founding affidavit does not defeat this application. He
is still the director.
The
objection based on this ground is therefore dismissed.
It
the result, IT IS ORDERED THAT:
1.
The application be and is hereby dismissed.
2.
First applicant shall pay the costs of suit.
Musoni
Masasire Law Chambers, 1st applicant's Legal Practitioners
Mangwiro
Tandi Law, Respondent's Legal Practitioners
