MAKONI J: The applicant seeks an order, in terms of
R449 of the High Court Rules,
1971, to set aside the judgment
granted by MUSAKWA J in HC 6669/07 (the main matter). The applicant
attacks the judgment mainly on two grounds.
The first ground is that the applicant was not cited as a party in the
main matter. The second ground is that
there was no legal basis for the court to grant the order in question.
The
background to the matter is that sometime in 2005, the applicant entered into
an agreement of sale of an immovable property with the first respondent who was
duly represented by the fourth respondent.
The property was later transferred to the applicant who sold same to
second respondent and third respondent.
She cited the fourth respondent but did not have the process served on
her. At the pre-trial conference, the
judge took issue with that fact. The
first respondent as she was not aware of the fourth respondent's whereabouts,
made an application n for substituted service which was granted. It is this order that the applicant seeks to
set aside as she was not cited as a party.
I
must start by commending Mr Mpofu for
filing comprehensive heads of argument that clearly outline the import of R449.
It was submitted
on behalf of the applicant that the order was granted in error and in an
absence of a party affected thereby for the following:
i)
The application erroneously excluded applicant
from the proceedings, being a party affected by the order sought and the order
was accordingly granted in error.
ii)
When the order was sought and granted, the
fourth respondent was not within the court's jurisdiction. The order thus lacks a valid legal basis.
Rule 449 provides
that the court or a judge may in addition to any other power it or he
may have mer motu or upon the
application of any party affected, correct or vary any judgment or order that
was erroneously sought or erroneously granted in the absence of any party
affected thereby.
In
my view it is important that this court determines whether the judgment in the
application for substituted service was erroneously sought or erroneously
granted. It is also important to make a
determination as to whether the applicant can be said to be a party affected by
that judgment.
In
my view the issue as to whether the applicant was barred or not as the time
that the application for substituted service was filed is neither here nor
there. This matter can be determined
without the court having to decide that issue.
I
will deal first of all with the question of whether the applicant falls into
the category of persons who can be affected by the issue judgment. The main
basis is that the fourth respondent is a main witness in the main matter and
should be made aware of these proceedings in the main matter so that she can
present her case before the court.
In
my view that does not put the applicant under the definition of a party
affected by this judgment. If the
applicant, as she says, requires the fourth respondent for purposes of her
defence she is at liberty to have resort to other provisions of the rules
whereby she can subpoena the fourth respondent to come and testify on her
behalf in the main matter. As was
correctly pointed out by the first respondent's counsel, the fourth respondent
can decide not to respond to process in the main matter. And the applicant in that case could have to
then subpoena the fourth respondent to appear before the court. To say that the applicant would be affected
by the order of substituted service would to stretch the meaning of an affected
person.
The
obligation on the plaintiff, in the main matter is to ensure that the parties
that she cited in that matter are served with the process instituting
proceedings. This she did in respect of the applicant and she then made
an application for substituted service so that she can effect service on the 4th
respondent. To my view it was not
necessary that she cites and effect service of that application on the
applicant on this matter.
My
finding would be that the applicant does not fall under the definition of an
affected party. As a result she would
have no locus standi to approach this court and seek the rescission of that
judgment. The issue of locus standi was addressed at length by Mr Mpofu in his
Heads of argument. That only arises were
the party is affected bv the order
granted.
In
this case it is my finding that the applicant was not and could not be affected
by the order granted in the application for substituted service. Therefore she has no locus standi to bring
the present application.
The
next is whether there was a legal base for the court, in the application for
substituted service, to grant the order sought.
The application for substituted service was filed on the 28th
of January 2009. The order was granted
on the 1st of February 2008.
The first respondent who was the applicant in that matter, desposed to an affidavit whereby she averred
that the fourth respondent from the information that she had, was within the
jurisdiction of this court, although she was not sure of her whereabouts. She makes averments that her legal
practitioner was given an address by the applicant, in this matter, which
indicated that the fourth respondent was in Borrowdale. As a result the court granted the order
sought.
The
applicant in this matter avers that at the time when the first respondent filed
court application the fourth respondent was in South Africa She says that she ascertained this
information from the fourth respondent's relatives but she could not obtain
affidavits from them as they did not
want the fourth and first respondent to know that they had provided her with
that information. She does not say where
in South Africa the respondent is, neither does she say when the respondent
left for South Africa.
I
would agree with the submissions by the first respondent's counsel that the
applicant makes bold averments regarding that issue. There is no evidence that the first
respondent has in South Africa. The
first respondent in her papers provided further information which if it had
been made available at the time that she made the application, the court would
have still proceeded to grant the order in the form that it is. This is the information relating to the
criminal activities that the fourth respondent was involved in. There is an advert, which is attached to her
papers, which is dated the 25th of August 2008, which indicated that
the fourth respondent was in Zimbabwe and was involved in what might be
fraudulent activities,
In
my view that further buttresses the first respondent's case that the fourth
respondent was within the jurisdiction of this court when the order was
granted. There is a case law that in looking at an application rescission of
judgment in terms of rule 449, the court can have regard to factors which were
not before the court that granted the order being sought be rescinded.
In
view of that it is my finding that the applicant has not succeeded, on her
papers, to establish a basis that the
order was erroneously sought and erroneously granted. The applicant's position
was that the first respondent should have sought an order in terms of rule 45
for a edictal citation rather than an application for substituted service. But she has not placed before the court
factors which establish that at the time the application was made the fourth
respondent was not in jurisdiction of this court. As a result there is no basis for me to make
a finding that the order was erroneously sought and therefore erroneously
granted.
I will therefore proceed to dismiss
the application with costs.
I will therefore
proceed to dismiss the application with costs.
