The parties have met in round table conferences in the presence of their respective legal practitioners, resulting in settlement of some of the issues.

The parties, just before the commencement of this trial, reduced their settled issues into writing in the following manner:-

“(1) A decree for divorce in favour of the plaintiff.

(2) Custody of the minor child of the marriage, namely Marvin Mudenda, born on the 30^th October 1992, be and is hereby awarded to plaintiff.

(3) Defendant be and is hereby ordered to contribute US$250= [later reduced, by consent, to US$150=] [per month] towards the maintenance of the minor child aforementioned.

(4) Stand Number 3744 Bulawayo Township of Bulawayo Township Lands, also known as number 3 Browning Road, Malindela, should be registered in the names of the children of the marriage in equal shares, namely:

4.1 Marcel Mudenda born on the 23^rd September 1987;

4.2 Melanie Mudenda born on the 3^rd of October 1989;

4.3 Marvin Mudenda born on the 30^th of October 1992;

Provided that plaintiff shall have exclusive usufruct of the property until she dies, or remarries, whichever first occurs.

(5) Plaintiff and defendant shall, within seven days of this order, sign all necessary papers for the transfer referred to above, and the plaintiff's legal practitioners shall attend to the said transfer, at the cost of both parties in equal shares.

(6) Plaintiff and defendant shall agree on the value of Stand Number 12028 Bulawayo Township Lands up to the slab level within fourteen days of this order, failing which the parties' legal practitioners shall approach a valuator, to be paid by both parties in equal shares, to give value to the said Stand up to slab level, and, in either event, the defendant shall be given the option to buy out the plaintiff of her share herein within sixty days of valuation failing which property shall be sold and therefrom levied plaintiff's half share of the property, as expressed in the valuation or agreement, as the case may be.”

When the trial started, the defendant, however, changed the above settled issues.

Item (1) was made an issue, i.e. the defendant now says the marriage has not irretrievably broken down.

Under item 4.3, the defendant wants a condition added to the effect that the property shall not be disposed of by the children before the youngest child attains the age of twenty-one years.

At some stage, a default judgment was granted against the first respondent. Under case number HC667/08, the first respondent applied for rescission of the default judgment.

The parties, after filing heads of argument, and the matter having been set-down for hearing, reached a settlement. The settlement culminated in a consent order dated 14 January 2009, phrased as follows -

“It is ordered that:-

1. Judgment granted is default in case number HC197/07 and X-Ref HC2794/07, 341/07, on the 21^st February 2008 be and is hereby rescinded.

2. Applicants application case no. 1623/07 for the dismissal of the main action, case no. HC197/07 be and is hereby withdrawn.

3. The applicants supplementary affidavit filed under HC667/08 be and is hereby incorporated as pleadings under case no.HC197/07.

4. The respondents are granted leave to file any answer, in they so wish, to the supplementary affidavit, within 15 days of this order.

5. The parties be and are hereby directed to file heads of argument within 10 days after the filing and service of the answer to the supplementary affidavit or expiry within which the answer is to be filed.

6. Pending the finalization of the main action, case no. HC197/07, the parties shall continue to peacefully co-exist at the farm in dispute.

On 4 December 2008 it, second applicant, then commenced the process of loading the tobacco in the barns for purposes of having the tobacco cured. On 6 December 2008 the first respondent came to the farm and had a discussion with Robert Strong. He said that if the applicants wished to continue using the barns they had to pay for them. He said that he himself had no use for the barns as he had not grown any tobacco. The first respondent had then left but returned a short while later to threaten the applicants' workers from returning to work the following day. On 7 December 2008, the first respondent turned up armed with a pistol and locked all the gates. A report was made to the police, and, subsequently, an urgent application filed with the court in 11 December 2008 resulted in the court issuing a mandament van spolie against the first respondent. The order sought by the applicants was granted with the consent of the respondent and resulted in the applicants being restored possession of the disputed items, and, in addition, a temporary interdict was granted against the first respondent preventing him from interfering with the applicants and their employees. That Order was to be effective up to 15 April 2009.

When the parties appeared before me for trial on 21 June 2010, they had agreed on all the outstanding issues except the issue of the motor vehicles. Counsel for both parties tendered a document titled “Consent Order” duly signed by the parties' respective legal practitioners. That document reflected what the parties had agreed to as confirmed by their legal practitioners. Counsel submitted that the document be taken as the parties' agreement on the dissolution of the marriage and the distribution of the matrimonial estate.

The parties', having agreed on almost all the issues, it remained for this court to decide on whether the marriage had irretrievably broken down or not and also on the distribution of the two motor vehicles that they had not agreed on, namely, the Mazda B1800 and the Opel Kadett.

On 23 March 2010 the applicant filed an urgent application in this court for a provisional order meant to entitle it to the following relief -

“Terms of Final Order Sought

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. The first respondent be and is hereby ordered to give the premises known as Stand 24A Chadcombe, Harare to the applicant, unless and until the Supreme Court orders otherwise.

2. The first respondent be and is hereby ordered to pay costs of suit on a Legal Practitioner and Client scale.

Interim Relief Granted

Pending the confirmation or discharge of this Provisional Order the applicant is granted the following interim relief:-

1. The second respondent and all those acting for him or claiming occupation or use through him be and are hereby interdicted from plying their business from premises known as Stand 24A Chadcombe, Harare.”

The urgent application was placed before PATEL J, and, on 29 March 2010, the parties consented to the following order -

“It is ordered by consent that:-

1. The matter shall proceed as an ordinary application in terms of the Rules subject to the following:-

2. Rockmount Trading (Private) Limited be and is hereby substituted as the second respondent in this matter.

3.The applicant shall file its answering affidavit by the 6^th day of April 2010.

4. The second respondent shall file any further notice of opposition by the 6^th day of April 2010.

5. The applicant shall file Heads of Argument by the 8^th day of April 2010.

6. The applicant shall index and paginate the record by the 13^th day of April 2010.

7.Thereafter, the Registrar is directed to forthwith set the matter down on the opposed roll.

8. The costs of the present application shall be costs in the cause.”

This application has now been placed before me in terms of the above order. The parties have since complied with the consent order.

With the urgent application having been turned into an ordinary application, it means the interim relief originally sought now falls away and the application is now based on the final order, namely an order “giving the premises to the applicant unless and until the Supreme Court orders otherwise; and an order for the respondents to pay costs of suit on a Legal Practitioner and Client Scale.”

On 1 August 2007 the applicant herein, under Case No.HC4094/07, issued summons against the respondent herein claiming special damages in the sum of $4,102,500,000= in Zimbabwe dollars. The respondent (defendant) entered an appearance to defend and the matter proceeded in due to be set down for trial. A few days before the matter was due to be tried on the continuous roll the defendant filed a consent to judgment as set out in the summons and declaration. On 4 January 2009 judgment was entered for the applicant (plaintiff) in accordance with the consent filed by the defendant. The plaintiff has now launched these proceedings to have the judgment entered in its favour set aside.

The defendant opposes the application.

The founding affidavit sets out the facts leading to the granting of the judgment as follows. The plaintiff filed summons under Case No. HC4094/07 alleging breach of contract on the part of the defendant and seeking the payment of special damages arising out of the breach; the parties filed pleadings resulting in the matter being set down for a pre-trial conference before a judge in chambers. At the pre-trial conference the defendant offered to settle the matter by paying the sum claimed on the summons. The plaintiff declined to accept the offer and its representative advised that the plaintiff would be filing an amendment of the claim before the trial. The deponent avers that the judge before whom the matter was set down for the pre-trial conference raised the issue of the replacement of the bus for the engine. The plaintiff's representative indicated that the issue would be dealt with just before the trial. In the result, the matter was referred to trial on the understanding that the plaintiff would be filing an amendment to its claim before the trial. The matter was set down for trial on 19 January 2009. On 13 January 2009 the defendant's legal practitioners wrote to the plaintiff's legal practitioners to the effect that they had filed a consent to judgment in terms of the summons. The letter, which was served upon the latter, was received on 15 January 2009 as the date stamp thereon will show. The consent to judgment was actually filed on 14 January, even though it was signed on 13 January 2009. On 15 January 2009 the plaintiff also filed an application to amend its claim. However, unbeknown to the plaintiff the consent to judgment that had been filed by the defendant on 14 January 2009 had been granted the same day by the trial judge in chambers. The plaintiff's legal practitioners, unaware that judgment had been entered in their client's favour in terms of the summons, had written to the defendant's legal practitioners on 15 January 2009 responding to the letter of 13 January 2009. The response was to the effect that it had always been the intention of the plaintiff to amend its claim, which position the defendant and its legal practitioners were aware of. In the event, the plaintiff would not accept the consent and the cheque tendered under cover of the letter of 13 January 2009 was returned to the defendant.

A judgment obtained by consent, may, in terms of the Rules of the High Court, be set aside if the applicant shows that there are good and sufficient grounds for it to be set aside. Order 8 Rule 56 provides -

“A judgment given by consent under these rules may be set aside by the court and leave given to the defendant to defend or to the plaintiff to prosecute his action, such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit.”

Over the years, courts have laid out general guidelines as to what would constitute good and sufficient cause, and three broad considerations have been accepted as the factors to be taken into account when determining what would constitute good and sufficient cause. These are -

(i) The explanation given by the applicant for his default;

(ii) The bona fides of the application to rescind the judgment;

(iii) The bona fides of the merits of the defence; See Du Plessis v Hughes N.O. 1957 R&N 706 (H) and Georgias & Anor v Standard Chartered Finance Zimbabwe 1998 (2) ZLR 488.

According to the plaintiff, the court herein has sufficient cause to set aside the judgment, because, as the plaintiff complains, the defendant snatched at a bargain resulting from the circumstances prevailing in the economy by consenting to judgment in the sum on the summons when it well knew that the plaintiff intended to amend its claim as the amount on the summons had no appreciable value and that the plaintiff had indicated, through its legal practitioners, that it intended to file an amendment of the claim. The refusal by the defendant to have the judgment set aside is described by the plaintiff as 'snatching at a judgment.'

The procedure whereby a judgment may be granted by consent is provided for in Order 8. The relevant Rules are Rule 54 and Rule 55 which provide as follows -

“54. Requisites to consent to judgment

 A consent to judgment shall be in writing and be signed by the defendant personally or by a legal practitioner who has entered appearance on his behalf. The defendant's signature shall be verified by an affidavit made by someone other than himself, or by the signature of a legal practitioner acting for him and not the opposite party.

55.    Judgment or Order

Upon filing a consent to judgment with the Registrar the plaintiff may make a chamber application for judgment and thereupon may be given an order made according to such consent.”

The plaintiff suggests that since this was a judgment it did not seek the court has good and sufficient cause to set the judgment aside. The plaintiff contends that the court could only have granted the judgment upon application by the plaintiff and that, in the absence of such application the court did not have grounds for entering the judgment in question. The plaintiff also contends that the judgment given did not discharge the defendant's liability. Although there are no cases in point on this issue counsel for the plaintiff has referred me to two case authorities, viz; Lambert v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) SA 178. In the former case, MEGAW LJ observed...,-

“...,.I would, however, say this also: that it is a jurisdiction which ought to be exercised with very great care, and it may well be that the cases in which it falls to be exercised should only be rare. It is desirable that litigation, once apparently finished, including litigation finished by means of payment into court which is either of the full amount claimed or an amount accepted deliberately by a plaintiff, ought not lightly to be allowed to be re-opened. But that there are such cases where the court has such jurisdiction is, I should have thought, apparent from the examples that were discussed during the argument before us. If, for example, the claim put forward in the county court by a plaintiff was one which contained a simple mistake as to the amount (as for example, LAWTON LJ suggested in the course of argument, by the omission of a '0' in the amount of the claim making it 150 pounds instead of 1,500= pounds) it would be absurd indeed if it were suggested that the defendant, having received the particulars of the claim, should be in a position to then promptly pay 150= pounds into court and then to say: “The result under the rule, is that this action is stayed and cannot be re-opened.” Another example, which I put forward during argument is: supposing a plaintiff discovers, when it is nearly time for trial, that the damage he has suffered is substantially increased by reason of some event over and above what he has included in his particulars of claim. As a matter of courtesy, he, or his solicitors, notify the opposing side that he will amend particulars accordingly. Is it possible that the law is that in those circumstances a defendant receiving information could promptly make a payment in of the sum at that moment included in the particulars of claim and then say; 'Well that is the end of it. This action is stayed. You, the plaintiff, may not amend your pleadings because the action is stayed and the court has no right to remove the stay'? It cannot be so. There must be, as was said by GREEN MR, cases in which the court has the power to set aside a stay.”

Both counsel are agreed that the Rules permit a plaintiff, where the defendant has filed a consent to judgment, to make a chamber application for the judgment to be granted in its favour, and that the court seized with the trial then entered judgment. The respondent concedes that the judgment, stricti sensu, was not entered in accordance with the procedure set out in Order 8 of our Rules of Court.

The question that then must be asked is whether this error is sufficient to constitute good and sufficient cause.

This court, can, however, set aside such judgment on the basis that good and sufficient cause having been established.

The respondent has sought reliance on Washaya v Washaya 1989 (2) ZLR 195 (H) in which case the court was concerned with an application to set aside a judgment granted by consent where the legal practitioner had apparently consented without instructions to do so from his client. The court therein found that even though the legal practitioner might not have been accorded instructions to consent, nevertheless, under the common law such consent was recognisable and would bind the affected party.

I agree with counsel for the applicant that the circumstances surrounding the judgment in the Washaya v Washaya 1989 (2) ZLR 195 (H) case are different and distinguishable from the present. In the Washaya v Washaya 1989 (2) ZLR 195 (H) case the court was dealing with a consent properly filed by a legal practitioner and on the basis of which the court duly entered judgment in favour of the applicant. The plaintiff therein actually prayed for judgment to be entered in the amount in respect of which the defendant had consented to the judgment. In the present case, the plaintiff did not apply for the default judgment, and, instead, it was the court which mero motu then granted judgment in favour of the plaintiff. This, presumably, is the error that the plaintiff is adverting to when it applies for the setting aside of the judgment on good and sufficient cause.

Can this court then conclude that the judgment was entered in error and thus find that such error constituted good and sufficient cause?

In terms of our Rules, when a defendant files a consent to judgment, the plaintiff may apply, through the Chamber Book, for judgment in terms of the consent filed by the defendant. In casu, the plaintiff did not file an application for the judgment to be entered. In effect, therefore, the judgment was not granted through consent by both parties to the dispute. It was in fact granted by the court mero motu. It is for this reason that the plaintiff wishes to have the judgment set aside because it never consented thereto. The plaintiff has referred to two passages in the Washaya v Washaya 1989 (2) ZLR 195 (H) judgment which I respectfully agree with. The first..., is stated in these terms -

“It is stating the obvious, but it does require stating, that for such a judgment to have any validity the essential ingredient of consent must be present. What is more, the court must be satisfied as to the presence of consent. It is for this reason that both in South Africa and Zimbabwe the governing rules prescribe, in clear and peremptory terms, the form a consent to judgment must take.”

And later at 201E-F -

“It is clear, in terms of these precedents, common sense, and justice that once a court is not satisfied that a party consented to judgment then that party is entitled to restitutio in intergrum. Put differently, had the court granting the judgment been aware that the party had not consented it would not have acceded to the request that it enter judgment. The judgment must, therefore, be set aside.”

In the premises, I find that there is good and sufficient cause to have the consent judgment entered into on 14 January 2009 to be set aside.

In the result it is ordered as follows -

1. The judgment of this court dated 14 January 2009 be and is hereby set aside.

On 7 February 2001, the first applicant and the respondent entered into a lease agreement in terms of which the respondent leased to the first applicant certain premises known as the Boka Tobacco Auction Floors.

On 24 December 2010, in HC9478/10, by the consent of all the parties herein, this court issued an order in terms of which the respondent herein was allowed reasonable access to the leased premises on the following conditions:

“1.1 The access shall be restricted to inspection of the premises and causing necessary repairs thereof.

1.2 The access shall be exercised upon reasonable written notice being given to the respondents, through their Chief Executive Officer or the Security Manager, at least 48 hours before the initial visit to allow proper co-ordination and facilitation of the exercise after which oral notice to the said company representatives shall suffice.

1.3 The applicant be and is hereby directed not to exceed the limits of clause 14 of the lease agreement executed by the parties on 7 of February 2001.”

The above order ought to be understood in the context that the applicants herein were the respondents in HC9478/10 and the respondent herein was the applicant.

In casu, the applicants contend that “the respondent has exceeded the limits of the order and is seeking to achieve an ejectment of the applicants without following due process.” They allege that the respondent broke into the premises and also made indications that there would be massive demolitions on part of the premises. They also allege that the respondent's representative also advised subtenants on the premises that they were to remove their property from the premises as the respondent would be undertaking extensive demolitions, alterations and additions to the premises. The respondent allegedly also caused the demolition of two pillars holding the main gate, removed asbestos roofing on the parking sheds and also removed the steel poles. The respondent allegedly also caused the erasure of the applicants' signage inscribed at the reception doors and on the premises and has proceeded to have its own name inscribed on the signage.

The applicants therefore seek, in casu, a provisional order in the following terms:

1. INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants be and is (sic) hereby granted the following relief:

(a) That the respondent be and is hereby interdicted from carrying out any ejectment of the applicants and all those claiming occupation through them from, and or interfere with the business of the applicants and the sub-tenants at the premises situate at 13km peg Simon Mazorodze Road, Harare without the authority of an order of a competent court.

(b) The respondent be and is hereby interdicted from conducting the business of Tobacco Auction Floors on the premises which form subject matter of the Lease Agreement executed between the parties on the 7^th of February 2001 until resolution of all disputes relating to, or arising from, the Lease Agreement which are currently pending in this court in cases number HC9478, HC7005/10, HC8312/10 and HC7324/10.

(c) The respondent be and is hereby directed to, restore, at its cost, the applicants' signage at the premises in issue within twenty four (24) hours of this order being made failing which the applicants shall restore same at the respondent's cost.

(d) The repairs to be effected pursuant to the order made on the 24^th of December 2010 be and are hereby suspended pending finalisation of the matters pending in this court in cases number HC7055/10, HC8312/10 and 7324/10.

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable court why a final order should not be made in the following terms:

(a) That the provisional orders issued in this matter be and are hereby confirmed.

(b) That the respondent shall pay the applicant's costs of suit on the applicable scale in terms of the Law Society Tariff for fees charged by legal practitioners, or, alternatively, costs on an attorney-client scale be and are hereby granted to the applicants”.

The respondent denies that it intends to unlawfully evict the applicants.

The respondent's legal practitioner submitted that it is rather the applicants who have, without the authority of a court order, barred the respondent from entering or accessing the premises in defiance of the consent order of 24 December 2010.

On 17 February 2011, a consent order was issued by this court in HC1151/11 in the following terms:

“IT IS ORDERED:

That first respondent be and is hereby ordered to reconsider applicant's husband application (sic) for an extension of his Provisional Restriction Notice for a further 90 days.

That in the event of the first respondent declining to extend the applicant's husband permit (sic), and applicant's husband appealing to the Second Respondent, First Respondent be and is hereby ordered to release the applicant's husband from Harare Remand Prison until the determination of  applicant's husband appeal (sic) by the Second Respondents.

That the Notice to Prohibited Person be suspended.

That each party pays its own costs.”

The applicant has now filed this urgent chamber application and contends that the first respondent has complied with the first part of the consent order and has since declined to extend her husband's permit. Her husband has appealed against the decision. Despite such appeal being made, she contends the first respondent has refused to release her husband. She contends that in terms of the consent order quoted above, and in view of the first respondent's refusal to release her husband, this court should now order the first respondent to so release her husband.

The applicant thus seeks a Provisional Order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause why a final order should not be made in the following terms:-

1. That First Respondent be committed to prison for ninety days for his contempt of this honourable Court particularly his defiance and contempt of this Honourable Court's Consent Order in Case No. HC1151/11 granted on 16 February 2011. (sic)

2. That the first respondent pays the costs of this application on an attorney/client scale. (sic)

INTERIM RELIEF GRANTED

Pending the final determination of this matter, the applicant is granted the following relief:-

(a) That within twelve hours of the service of this Order upon the First Respondent to show cause why a Final Order should not be made in terms of the Final Order sought herein.

(i) First Respondent is ordered to release the applicant's husband, Emmanuel Chimaobi Udoh, from Harare Remand Prison immediately. (sic)

(ii) That this order shall be effected on First Respondent by the applicant's legal practitioners by service on the Director of the Civil Division of the Attorney-General's Office or on the first respondent personally.” (sic)

Counsel for the applicant submitted that the consent order creates no confusion and that its terms were consciously agreed to by the parties who anticipated that in the event of the first respondent declining the applicant's husband's application, there may be filed an appeal against such a decision. He submitted that the parties agreed that in the event of such appeal being filed, the first respondent would release the applicant's husband from Harare Remand Prison pending the determination of the appeal. Furthermore, he submitted, it was agreed that the “Notice To Prohibited Person”, in terms of which the applicant's husband was arrested and incarcerated, was suspended. Counsel for the applicant further submitted that subsequent to the consent order being granted, on 16 February 2011, the applicant submitted an application to the first respondent on 17 February 2011. On 21 February 2011 the first respondent wrote the letter…., in which he referred to “your recent application for a residence permit…,” and advised that the application “has been refused.” He submitted that this application was made in terms of the consent order; that when it was declined and an appeal was made, it became incumbent upon the first respondent to release the applicant's husband as anticipated by the terms of the consent order. He also submitted that the first respondent had no justification at all for not releasing the applicant's husband in the circumstances and was therefore in contempt of court. The Provisional Order sought must therefore be granted.

In opposing this application, the first respondent contends, in one breath, that the Consent Order has been “religiously complied with”. He contends that the Consent Order compelled him to reconsider the applicant's husband's application for extension of his Provisional Restriction Notice. However, since there was an application of “spousal residence permit” that was already lodged and pending, it was only proper that that application be finalised. This was done, and on the basis of the evidence gathered by the first respondent's officials in Gweru, the application was declined as it had no merit. The applicant's husband was advised accordingly. It is stated, in the opposing affidavit, that it is denied that the first respondent failed to comply with the Consent Order as he, in fact, went a step further by concluding the application for spousal residence permit extension. This, it is stated, is an application that had been pending since 2007 and had not been finalised because the applicant and her husband failed to avail themselves for the process to be concluded. Efforts to locate the applicant's husband at the given address in Harare had proved futile. The applicant's husband was then only arrested in KweKwe in November 2010, and, by then, he had, by operation of law, become a prohibited person and he was notified of this status in terms of section 14(1)(i) of the Immigration Act. This notification was held in abeyance by the Consent Order but after the application for residence permit extension failed, it came into operation as the applicant's husband is a prohibited person by virtue of operation of law. It is for these reasons, it was contended, that he remains in detention….,.

At the hearing, counsel for the respondents submitted that as the first part of the Consent Order requires the first respondent to reconsider the applicant's husband's application for extension of the Provisional Restriction Notice, such reconsideration could only be done if an application had been made with the first respondent. He submitted that no such application was made. He submitted that the second part of the Order does not refer to any Provisional Restriction Notice but to a permit and that as the first respondent issues various types of permits, it is not clear as to what permit the second part of the Order is referring to. As no application was made for a Provisional Restriction Order, and, consequently, no such application was declined by the first respondent, the provisions of the Consent Order were thus not triggered into operation. It was submitted that the application which the first respondent considered and determined was an application for a residence permit and that such application was not made pursuant to the Consent Order. It (the application), had been made in 2007 and the first respondent's letter dated 21 February 2011 was in response to the 2007 application. It was submitted that in the circumstances, the Consent Order places the first respondent under no obligation to release the applicant for these stated reasons.

A perusal of the papers placed before the court shows the following sequence of events. On 17 February 2011 the Consent Order already quoted above was issued. On 21 February 2011 the Principal Director of Immigration wrote a letter to the applicant's husband. It reads:-

“I refer to your recent application for a Residence Permit to the Principal Director.

I regret to advise you that your application has been refused. In terms of s19(2)b of the Immigration Regulations 1998. (sic).

Please bring this notification letter together with your passport to the nearest Immigration Office to finalise on departure arrangements.”

On 22 February 2011, the applicant's legal practitioner wrote to the respondents legal practitioners in the following terms:-

“We refer to the above matter in which an order was granted by Consent on 16 February 2011.

We would have thought as clearly expressed by the Honourable Justice BHUNU, now that the file for Mr Emmanuel Udoh has been found he would by now have been released. The application was for him to be released immediately and not whenever your client wants.

It is a week since the order was granted, and, as expressed on the phone yesterday, there is no legal basis to continue detaining Emmanuel Udoh at all.

The basis upon which he was purportedly detained at Harare Central Remand Prison was the Notice to Prohibited Person which was suspended by consent.

The detainee should have been released immediately on his wife's application for a Permit on a Provisional Restriction Notice whilst the Department of Immigration was processing his permit and we understand this application was done on 17 February 2011.

It cannot surely take a week to process our client's Provisional Restriction Notice. Unless, therefore, our client is released on a Provisional Restriction Notice by close of business on 22 February 2011 we have been instructed to proceed with an Urgent Application for contempt of Court”. (sic)

On 23 February 2011, the respondents' legal practitioner responded to the applicant's legal practitioner as follows:-

“We regret to say your interpretation of the consent order is materially different from ours.

Our understanding of the order is that once the file was located (even though our client insists it never went missing as you allege or at all) it had to process your application. As it were, our client has processed yours application in terms of the Consent (Order) and found it devoid of ment (sic) (merit) and dismissed it. In the circumstances, our client is convinced that he has religiously complied with the Consent Order and is not in contempt as you allege or at all. We hope this clears things up.”

On 24 February 2011, the applicant's legal practitioner wrote a letter to the second respondents on behalf of the applicant's husband, appealing to them to exercise their discretion in the applicant's husbands' favour and order the Department of Immigration to grant him an extension of his permit on the grounds stated in the letter. They also wrote a letter to the respondent's legal practitioners on 1 March 2011 and stated the following:

“We refer to the above matter and advise that your client the first respondent declined to extend our client's permit.

Our client has since appealed to the second respondent. We enclose copy of our client's letter of appeal a copy of which was served on both first and second respondents. Since our client has appealed against first respondent's refusal to extend the permit kindly instruct your client to immediately release our client as ordered in para 2 of the Consent Order. (sic).

We thought your client would by now have complied with para 2 of the Order. Since it was served early on 28 February 2011. (sic) Unless your client immediately releases our client our instructions are to proceed with an application for contempt. (sic) There certainly can be no different interpretation of paragraphs 2 of the Order as that seems clear.” (sic).

The first respondent appears to be rather equivocal or ambiguous in his stance. In one breath it is claimed that the order, or the terms thereof, ought not to have been agreed to as it is not in tandem with how the first respondent's affairs are run. In another/the next breath it is contended that the first part or the first paragraph of the order was consciously and properly agreed to, as it is in accord with Immigration Laws. In yet the next breath it is claimed that the first respondent has religiously complied with the Consent Order. Against this ambiguousness is the fact that in his letter of 21 February 2011, the first respondent referred to the applicant's husband's “recent application.” He did not refer to an application made in 2007 - which he now seeks to portray as the application which he considered and determined. Furthermore, in that letter, the first respondent advised the applicant's husband to bring the letter together with his passport to the nearest Immigration Office “to finalise on departure arrangements.” This latter part of the letter would seem to indicate a number of possibilities. One would be that the first respondent did not anticipate an appeal by the applicant's husband. Such a stance, however, would be contrary to the (agreed) terms of the Consent Order in terms of which an appeal was in fact anticipated. Another possibility would be that, to the first respondent, it did not matter whether the applicant's husband appealed against the determination made by him. He had no interest in the second part of the Consent Order which anticipated an appeal. It is highly improbable, in my view that by referring to a recent application in his letter of 21 February 2011 the first respondent meant an application made four years earlier in 2007. In fact, the first respondent's legal practitioner's letter of 23 February 2011 clearly stated that the applicant's husband's application was processed in terms of the Consent Order, was found devoid of merit and was dismissed. The letter stated that the first respondent is convinced that he has religiously complied with the Consent Order and that he is not in contempt of court as alleged or at all. No mention is made of any appeal having been made by the applicant's husband.

When mention was made, in the letter of 1 March 2011, of the applicant's husband's appeal, the letter was not responded to. The aspect of the consequence of such appeal in terms of the Consent Order thus appears to have been deliberately avoided by the first respondent, or his legal practitioners, in any correspondence they exchanged with the applicant's husband's legal practitioners. The stances which the first respondent has now placed before the court, especially regarding the second part of the Consent Order in which reference is made, inter alia, to an appeal, was never expressed to the applicant's husband or his legal practitioner before this hearing. What is apparent from the correspondence is that the first respondent was keen to deport him immediately upon the determination of his application.

For the above reasons, I find persuasive counsel for the applicant's submission that the parties have always been clear as to what application the first respondent was to reconsider and determine. Furthermore, that they have always been clear that the appeal referred to, or anticipated, in the first part of the Consent Order is an appeal against the determination made in terms of the first part of the Consent Order.

In the next breath, the submission was made by counsel for the respondents that when the terms of the Consent Order were agreed upon, he, (counsel for the respondents) was under a misapprehension as to how the first respondent conducted its business or operations. It was only at a later stage that he was made to realise that the consent order, or the terms thereof, ought not to have been agreed to by or on behalf of the first respondent. He has since been given instructions to apply for the consent order to be set aside…..,.

Counsel for the respondents went to great lengths addressing the court on the reasons why or how the Consent Order in HC1151/11 was granted in the terms in which it is phrased. He also addressed the court at length about the undesirability of the terms of the Consent Order to the first respondent. Those issues are certainly not before this court. What is before this court is a consent order issued by this court more than a month ago in HC1151/11. The relief now sought before this court arises from the said Consent Order.

Whatever intentions the first respondent has about it, the Consent Order is extant.

It follows, therefore, in my view, that the first respondent, having complied with the first part of the Consent Order, as he confirms that he did, and the applicant's husband having appealed against the determination made in terms thereof, the first respondent must now, in compliance with the second part or paragraph of the Order, release the applicant's husband from Harare Remand Prison pending the determination of his appeal. Subparagraph (i) of paragraph (a) of the interim relief must therefore succeed….,.

For the above reasons, an Order was issued, on 29 March 2011, in which the relief granted was to order the immediate release of the applicant's husband from Harare Remand Prison by the first respondent with the first respondent being ordered to pay the applicant's costs.

The purpose of the loan that was granted to the applicants was to enable them to lease a plane from an American company known as Interject Leasing Corporation. However, the American company went into liquidation and the applicant(s)' project collapsed. The collapse came after the first respondent had already paid the proceeds of the loan directly to the American company as per arrangements.

It is common cause that the applicants defaulted in servicing the loan. The first respondent then resorted to litigation which resulted in the following consent order from this court.

“1. That judgment be entered for the plaintiff against the defendants jointly and severally the one paying the others to be absolved as follows:-

1.1 In the sum of United States Dollars 590,470=68;

1.2 Interest on the sum of US$506,200= at the rate of 14.5% per annum from the 1^st June 1988 to the date of payment;

1.3 In the sum of $54,917=68;

1.4 Interest on the sum of $49,688=99 at the rate of 14.5% per annum from 31^st March 1999;

1.5 Costs of suit including the wasted costs of two days;

1.6 Defendants' claims are dismissed with costs.”

It is important to note that the relief granted in the above order was in foreign currency (i.e. United States Dollars).

The relief prayed for in this application is, in actual fact, a stay of execution of the above court order. This is so because the first respondent has since proceeded to execute against the consent order.

In its opposing affidavit to this application the respondent states the following -

“The suggestion that the first respondent (sic) overpaid its liability to the first respondent is not accepted. It is interesting to note that in its papers in case number HC5054/04 it was claimed on its behalf that as early as April 2004 the first applicant had settled its liability to the first respondent in full. This was a false claim. The letter from the Sheriff of Zimbabwe in this connection annexure “E” is incorrect. In fact, I would point out that the Sheriff of Zimbabwe has been most unhelpful in dealing with this matter. Pursuant to a Writ of Execution against movable and immovable property issued in this matter, and based on the judgment of this court granted by consent, the Deputy Sheriff auctioned the immovable property of the second and third applicants. Because the prices offered at the time were unreasonably low and the immovable property was, in any event, mortgaged to the first respondent, the first respondent made what it considered a reasonable offer for the purchase of the property at the auction. This offer was accepted and all the requirements of both the auctioneer and the Sheriff were satisfied. This notwithstanding, the Sheriff refused to transfer the property to the first respondent. In this connection, I point out that the sale of the immovable property of the second and third applicants was, in fact, effected by public auction on 30 April 2004 and the first respondent's bid at the time was $110,000,000=, which was quite reasonable. The first respondent was required to pay the auctioneer's commission of $5,500,000=, and paid this but the Sheriff simply refused to confirm the sale and instruct, as is normal practice, the transfer of the property to the auction-purchaser, which, in this case, was the first respondent. Accordingly, therefore, annexure “E” does not come as a surprise to the first respondent because it is consistent with the very unhelpful attitude exhibited for a long time by the Sheriff.”

It is the execution referred to above that the applicant(s) seek to have set aside...,.

How do the applicants' founding affidavit justify the relief sought? The main founding affidavit deposed to by the second applicant gives a background of the loan facility. Among other things, the founding affidavit then makes the following conclusions on the dispute -

“9.1

Against the background of this unpleasant history and what would properly qualify as a case for judgment entered in error, the applicants took steps to settle in full the judgment debt of US$590,470=68 plus interest by paying the equivalent of the said amount to the first respondent. The payment of the equivalent amount in Zimbabwe dollars was purely on the basis of the trite position of our law as set out in the Makwindi Oil Procurement case supra. Further, the clear history of this matter shows that the Zimbabwe dollar equivalent is what was due to the first respondent in any event.

9.2

Attached marked “D” is a copy if the schedule showing the copy of the various amounts paid in Zimbabwe and how there were appropriated against the judgment debt in United States dollars at the official exchange rate.

9.3

In fact annexure “D” shows that the first respondent has been overpaid to the extent of US$2,431,219=62. Even clearer is annexure “E” a letter from the Sheriff of Zimbabwe advising the first respondent that the judgment debt had been fully settled according to the records available to the Sheriff.

9.4

The first respondent is, however, adamant and has not accepted the full payment as advised by the Sheriff. Consequently, it is important that an order be made upholding the position taken by the Sheriff and setting aside the writ of execution issued by the first respondent on the clear basis that the same has been satisfied.

It is clear that the first respondent has received more than what is due to it. What is also clear is this debt has since long been paid.

In the circumstances, the position taken by the Sheriff should be upheld and consequently the writ of execution issued pursuant to the judgment under case number 11569/98.”…,.

In order to decide whether or not the relief sought should be granted, all I need to do is to determine whether or not the debt was satisfied as reported by the Deputy Sheriff. The applicants' argument, in my view, is anchored on that report. The Deputy Sheriff's letter dated 13 February 2009 reads as follows -

“1. The judgment debtor paid the debt in full (see copy of confirmation to the Sheriff's Office dated 20^th January 2009 attached hereto).

Since payment was done in full I am not in a position to re-auction the property in execution by private treaty.

On the Sheriff's side it appears there is no cause of action now.

R. Matore

for:  MASTER/REGISTRAR/SHERIFF FOR ZIMBABWE”

On 18 February 2009, the first respondent, through its legal practitioners, reacted to the above in the following terms -

“Our records indicate that the judgment debt has not been paid at all. As you would have seen from the Sheriff's file the judgment was expressed in the currency of the United States and payable in that currency. We have no record of any payment, and, a matter of fact, as recently as October 2008 the judgment debtors were still attempting to effect payment, unfortunately this was in the incorrect currency. If the Sheriff for Zimbabwe is adamant that payment of the judgment debt has been effected in full we should be grateful if we could be furnished with details of such payment including:

1. The date or dates when payments were made;

2. The place and persons or entities to whom payment was effected including copies of the relevant receipts; and

3. The currency in which the payments were made.

Our file, and the correspondence in it, indicates quite clearly that the Sheriff's office has refused to co-operate in a proper disposal of this matter. In the event that we do not receive a response from your office within the next 14 days, and upon instructions from our client, we will apply for an appropriate court order. In the event, the Sheriff, and your office, will be cited as parties and orders for costs will be sought against yourselves.

M P Mahlangu

GILL GODLONTON & GERRANS”

The above sets out the respondents' position and that position remained unchanged up to the date of the hearing of this matter.

Counsel for the applicant(s) submitted that there were two issues for determination, namely -

1. Whether or not the applicants( )should settle the debt in foreign currency; and

2. Whether or not the applicant(s) had fully paid the loan.

As has already been indicated, I need not deal with the issue relating to the justification of settling the debt in foreign currency. That was fully and adequately covered in MAKARAU J's judgment quoted at length at pp7 and 8 of this judgment. I totally associate myself with the findings and ruling in that judgment.

On the issue of confirmation by the Deputy Sheriff that the debt was cleared; I make the following observation.

As an Officer of this court, and in executing the judgment, the Deputy Sheriff was primarily doing it for the benefit of the judgment creditor who happens to be the first respondent. It was, in my view, incumbent upon the Deputy Sheriff to verify payment figures with the first respondent before making a pronouncement as he/she did on 13 February 2009. Failure to seek verification resulted in the first respondent's negative, but, most probably, correct response of 18 February 2009.

The first respondent denied knowledge of any payments made after June 1998 when a balance of US$506,200= was reflected as outstanding. Furthermore, the first respondent stated that if payments had indeed been made the offer of US$1,000,000= placed before the first respondent on 8 October 2008 could not have been made.

I agree with that observation.

Given the foregoing, my view is that the first respondent has, on a balance of probabilities, proved that it is still owed money by the applicant(s). The first respondent has advanced a credible story that throws out any possible merit in the applicant's case.

I cannot help but agree with counsel for the first respondent when he says -

“It is not for this honourable court to entertain a debate as to what payments have been made by the applicants and exactly how much is still owed; this honourable court has been asked to stay execution and it is respectfully submitted that if it is found that money is still due by the applicants, no matter in what sum, then this application has to fail.”

All in all, the application for stay of execution has no merit and cannot succeed. (See also Lowveld Leather Products (Pvt) Ltd v IFC & Anor 2003 (1) ZLR 78).

I therefore order as follows -

1. The application be and is hereby dismissed.

Following the acquisition by the State of the applicant's farm, the parties filed a consent order with this Honourable Court under Case No.HC308/10 in the following terms -

“It is hereby ordered with the consent of the parties that:-

1. The tobacco on Masasa Plot Lot 2 Lions Head, Rusape, allocated to second respondent shall be harvested, cured, graded and removed from the said Plot in terms of an agreement to be concluded between second respondent and Chidziva Tobacco Processors (Private) Limited, which agreement shall cater for the involvement of applicant and/or his son, Kirk Voest, with regard to these activities only.

2. Applicant shall remove his carpentry equipment, as set out in the annexure to Case No. HC 308/10, within seven days on granting of this Consent order.

3. All other farming equipment and/or materials shall be removed from the said plot in accordance with the law.

4. Parties to bear their own costs in respect of these proceedings.”

The consent order was granted on 22 January 2010.  The matter should have ended there. However, the applicant and the second respondent are unable to agree on the import of paragraph 3 of that order….,.

I am inclined…, not to grant the order sought…,.

The applicant seeks, in the main, an order allowing him to remove from the farm the equipment and materials listed on Annexure “B” to this application. Counsel for the first respondent has indicated from the outset that it is the acquiring authority's intention to acquire the equipment and the materials so listed under Annexure “B”.

An order such as the one sought by the applicant would defeat the object of the intention of the first respondent, namely, to acquire the equipment in terms of the law and in accordance with paragraph 3 of the consent order granted on 22 January 2010 under Case No.HC308/10.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

1. …,.

2. That, by consent of the parties, the plaintiff shall pay the fourth defendant US$380= per month as holding over damages calculated from 1 February 2009 to the date of his vacating the premises.

WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED:

1. That the parties be and are hereby granted an order for divorce.

2. That the plaintiff be and is hereby awarded the custody of Lwazi Edward Sibanda (born on 20^th June 2003) with the defendant being afforded reasonable rights of access to the minor child.

3. That the defendant be ordered to pay monthly maintenance for the minor child until the child attains the age of 18 years or becomes self-sufficient whichever happens earlier.

4. That given the fact that the originally agreed figure for maintenance has been rendered obsolete because of dollarization, the parties need to agree on a new figure failing which a new figure be computed by a court of competent jurisdiction upon application by the plaintiff.

5. That the plaintiff be and is hereby declared to be the sole and absolute owner of the following movable assets;

(i) American fridge freezer;

(ii) Wide screen television set;

(iii) Washing machine; and

(iv) Three-seater, two-seater and one-seater black sofas.

6. That the defendant be and is hereby declared to be the sole and absolute owner of the following movable assets;

(i) Omega motor vehicle;

(ii) BMW motor vehicle;

(iii) Small television set;

(iv) Dining room table;

(v) All beds;

(vi) VCR and DVD player; and

(vii) All movable wardrobes and kitchen units.

7. That the plaintiff be and is hereby awarded 50% of the current market value of a DAF truck motor vehicle bearing engine number H-77549 and chassis number XLRTG46WSOE392966 with the defendant being given the first option to buy out the plaintiff within 30 days from the date of this order failing which the right is extended to the plaintiff.

8. That in the event of both parties failing to comply with clause 7 (supra) it is hereby ordered that the truck be valued by a mutually agreed car dealer for purposes of its disposal at best advantage to enable each party to get a share of his or her entitlement.

9. That the plaintiff be and is hereby awarded 50% of the current market value of a house commonly referred to as House Number 65 Sparrow Lark Way, Burnside, Bulawayo with the defendant being given the first option to buy out the plaintiff within 30 days from the date of this order failing which the right is extended to the plaintiff.

10. That in the event of both parties failing to exercise their options in terms of clause 9 (supra) then the house in question be valued by a mutually agreed estate agent for purposes of its disposal at best advantage to enable each party to get a share of their entitlement.

The applicant has had a change of mind. She wants the consent judgment set aside. She accused the presiding magistrate of not giving her a chance to state her case. It is difficult to understand what she means by that when the parties approached the court with a draft order which they wanted the court to record into an order of court.

Similarly, it is difficult to understand how her legal practitioner would have withdrawn her notice of appeal without her mandate. If he did not agree with her he would have just renounced agency instead of withdrawing her appeal without her authority.

This matter was initiated by way of an urgent chamber application wherein the plaintiff was granted a provisional order in the following terms:-

“(i) That 1^st and 2^nd respondents be and are hereby interdicted from reselling and transferring right, title and interest in Flat Number 42064/13 Makokoba to any person save for the applicant.

(ii) That the respondents be and are hereby interdicted from processing any transfer of the right, title and interest in Flat Number 42064/13 Makokoba to any person save for the applicant.”

The terms of the final order the plaintiff sought were these:-

“(1) That the respondents be and are hereby ordered to take all necessary steps to transfer right, title and interest of Flat Number 42064/13 Makokoba, Bulawayo to applicant within five (5) days of confirmation of order.

(2) Failing compliance with (1) above the Deputy Sheriff be and is hereby authorized to sign the relevant papers for the effecting of transfer to applicant.

(3) That the 1^st and 2^nd respondents, jointly and severally, pay costs of this suit one paying the other to be absolved at an attorney-client scale.”

The parties, however, later agreed that the whole application be referred to trial and obtained a court order by consent to that effect.

The parties in these two farming matters agreed to have them consolidated and argued at the same time as the facts of both matters are identical. Both were gazetted for compulsory acquisition in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10].

Thereafter, they reached an agreement with the Minister of State for National Security, Land, Land Reform and Resettlement in the President's Office whereby the respective farms surrendered part of their agricultural holdings and the Minister agreed to withdraw his application to the Administrative Court (which at that time had jurisdiction in such disputes) for confirmation of the acquisition. The agreement in each case was then taken to the Administrative Court for it to be made into a court order which was accordingly done. The effect of that was that the particular pieces of land were delisted and that ownership of the respective pieces of land reverted to the original owners i.e. the respective applicants.

After the respective agreements had been made into consent orders of the Administrative Court the farms were gazetted and both appear in the 7th Schedule of Constitutional Amendment Number 17 which came into effect on 14 September 2005. Constitutional Amendment Number 17 introduced section 16B in terms of which the two farms were acquired. The relevant provisions recite as follows -

“16B Agricultural land acquired for resettlement and other purposes

(2) Notwithstanding anything contained in this chapter –

(a)  All agricultural land –

(i) That was identified on or before the 8th July 2005 in the Gazette or Gazette Extraordinary under, section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) That is identified after the 8th July 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or

(iii) …,.

is acquired by and vested in the State with full title therein with effect from the appointed day or in the case of land referred to in (iii) with effect from the date it is identified in the manner specified in that paragraph.”

Both farms were itemized in Schedule 7 as pieces of land which constituted land referred to in section 16B(2)(a)(i) of the Constitution of Zimbabwe above. They were acquired through General Notice 144A of 2002 and were itemized as 44.

It accordingly admits of no doubt that the two farms were identified before 8 July, 2005, and itemized in Schedule 7 and were acquired by and vested in the State with full title therein with effect from 14 September, 2005 – the appointed day.

In casu, the orders by consent were issued by the Administrative Court in 2003. The one relating to Felton Farm, for instance, was issued on 5 August 2003. The orders therefore preceded the appointed day id est 14 September, 2005.

However, it was strenuously argued by the applicants that their case was completely different because their pieces of land had been returned to them by orders by consent which were made into court orders by the Administrative Court. It was then contended that the Constitutional Amendments set out in section 16B(2)(a)(i) and (ii) of the Constitution of Zimbabwe above did not vest their pieces of land to the acquiring authority. They reasoned that, since the court orders returned their pieces of land to them, they had acquired real rights in the properties. The Minister had, in fact, withdrawn the applications to confirm. The properties were restored to them in terms of the law. No legislation can act retrospectively to take away acquired rights that have vested in the right holders. They went on to submit that they had worked on and improved the farms on the understanding that the pieces of land were theirs to do as they wished.

It was their belief that contrary to popular belief the recent amendment to the Constitution did not make all farming land State land.

Their belief is indeed true.

Not all farming land was made State land. However, the applicants were ignoring the fact that the Constitutional Amendment, especially section 16B of the Constitution of Zimbabwe thereof, provides that agricultural land identified in the gazettes itemized in Schedule 7 of the Constitution had been acquired. Their pieces of land were identified in General Notice 144A of 2002 gazetted on 5 April, 2002 and appear as item 44 in Schedule 7 of the Constitution. It, therefore, admits of no doubt that the legislature took a deliberate effort to acquire the two farms and vested rights in them to the State. The provisions of section 16B(2)(a)(i) of the Constitution of Zimbabwe expressly stipulate that the particular farms were acquired and vested in the State with full title….,.

Regarding the quantum of damages claimed by the applicant, the respondent pleaded as follows -

“The Defendant offers, as full and final settlement, the sum of $250,000,000= damages due to the Defendant (sic).”

The fact that the respondent makes an offer in respect of adultery damages due to the applicant means that the only issue between the parties, to the extent of the claim, is the quantum of adultery damages due to the applicant. The applicant did not accept the offer made, and in his replication, filed on 3^rd March 2008, he states categorically that the offer is inadequate.

Subsequent to the filing of the plea and replication inflation played havoc to the applicant's claim.

This was at the time of the economic meltdown which literally changed the value of money on a daily basis.  Obviously, taking advantage of that situation and realizing that the claim of $4 billion Zimbabwe dollars filed by the applicant had virtually been obliterated by inflation, the respondent filed a consent to judgment in that sum of money “as full and final payment.”

The respondent did not amend or withdraw his plea filed earlier.

The applicant did not accept the consent to judgment, and, by letter dated 12^th May 2008, his legal practitioners advised the respondent's legal practitioner as follows:-

“We refer to your Consent to Judgment filed on 30^th April 2008. Please note that the writer was on leave during the month of April. We regret to advise that it is our respectful opinion that the Consent to Judgment does not comply with the Rules and is therefore invalid. It is vague and embarrassing in that on the one hand it seems to Consent to Judgment as claimed in Summons, yet in the same vein tenders payment of $4 billion in full and final payment, meaning that the claim for interest and costs is not being consented to by yourselves even though contained in the Summons. Further, a tender in settlement must comply with Rule 144 of the Rules. Yours does not.”…,.

It remains for me to deal with the respondent's consent to judgment filed on 30^th April 2008.

The respondent did not consent to the entire claim of the applicant and that consent was a conditional one in the sense that it was in “full and final payment.” If the applicant had accepted it and submitted an application for judgment in terms of Rule 55 it would have meant that he would have had to abandon the rest of his claim relating to interest and costs of suit.

I must also state that the purported consent to judgment was not an honest one and was clearly made in order to gain an unfair advantage over the applicant. As pointed out earlier, when filing his plea, the respondent had admitted liability in the sum of ZW$250 million only which was a fraction of what the applicant claimed. When hyperinflation eroded the claim such that even the ZW$4 billion was meaningless three (3) months later, the respondent filed a limited consent to judgment. What he therefore sought to do was to replace a dishonest denial of liability with an admission of liability in an even less valuable amount which was hardly less dishonest. See DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S).

At the pre-trial conference, the parties agreed on a number of issues. They agreed on the sharing of the movable property and on the fact that their marriage had irretrievably broken down.

This matter involves a long standing dispute over ownership and development of Stands situated on a piece of land known as Newark of Hilton of Subdivision A of Waterfalls, Harare measuring 25,0532 hectares.

The matter has got a chequered history and numerous court processes have been filed by various parties claiming an interest in the property. Historically, the land in question is registered in the name of one Tecla Mvembe who holds title by Deed of Transfer number 4573/2000. On 6 November 2000, Tecla Mvembe penned an Agreement of Sale with Max Management (Pvt) Ltd in terms of which she sold 76 of the approximately 103 Stands making up the property on certain terms and conditions. Prior to that, Tecla Mvembe had obtained a permit from the Municipality of Harare authorising her to subdivide the property in terms of General Plan No. SD/670/98.

In due course, a Roads and Storm Water Drains Layout Plan was approved by the Municipality in terms of which the servicing of Stands on the property was commenced. Max Management (Pvt) Ltd sold some of the Stands on the land to certain individuals - including members of the first respondent. It is common cause that in pursuance thereof the holders of those units commenced construction of houses and some of those houses have been completed. Generally, they took occupation of the units. It is also common cause that in accordance with the approved plans, roads, water drains and water reticulation systems were constructed which enabled individual holders to construct houses. It also appears common cause that some of the Stands, not only have water supply but also have individual water meters installed by the second respondent following due compliance with its requirements.

Disputes emerged between the various players and interested parties which led to a lot of litigation aforesaid. One such court action led to an order being granted by consent in HC7312/2006, on 11 March 2008, a case involving the first respondent as the applicant, Max Management (Pvt) Ltd and Tecla Mvembe and 2 others as respondents.

The present applicant was not a party.

In terms of clause 3 of that consent order, the first respondent was to service and develop the 76 Stands that had been sold by Max Management (Pvt) Ltd in accordance with Subdivisional Permit SD670 I have referred to. That order was granted despite the fact that on 19 September 2007 (a date hotly contested by the first respondent), the same Tecla Mvembe had purported to sell the same property to the present applicant.

The applicant later sued Tecla Mvembe the Surveyor General and the Registrar of Deeds in HC7398/2011 seeking to enforce the Sale Agreement it had entered into with Tecla Mvembe. Unfortunately, the first respondent and the Municipality were not cited in that application, and, as it was unopposed, an order was granted in default on 14 September 2011 by MUTEMA J in the following:-

“IT IS ORDERED THAT:

1. The first respondent, Tecla Mvembe, be and is hereby ordered to sign all transfer papers and give effect to transfer of certain piece of land situate in the District of Salisbury called Newark of Hilton of subdivision A of Waterfalls held under Deed of Transfer No.4573/2000 to the applicant within ten (10) days of the date of service of this order on her.

2. Should the first respondent fail to sign the papers within the said period, then the Deputy Sheriff, Harare be and is hereby authorised to sign all papers on behalf of the first respondent to give effect to the transfer.

3. An order be and is hereby granted directing the second respondent (Surveyor General) to cancel any Subdivision Plan registered with him by the first respondent in respect of the property referred in paragraph 1 above of this order and recognise only the original boundaries of the property as provided for in Deed of Transfer No.4573/2000 to the registered subdivision.

4. The first respondent, to pay costs of suit.”

The applicant did not waste time promptly advising the Surveyor General, by letter of 19 October 2011, to cancel the General Plan in terms of the court order. The Surveyor General duly complied advising of such cancellation by letter of 20 October 2011. The first respondent then approached this court by urgent application in HC10716/2011 seeking to intervene against the order issued by MUTEMA J on 14 September 2011. In its founding affidavit, sworn to by Michael Chari on 28 October 2011, the first respondent stated in paragraph 15:-

“15. The applicant has been mobilising resources from its members and other individual Standholders alike to ensure that servicing of the property proceeds in earnest and as we speak, it is about to complete the installation of the water reticulation system. Attached hereto, as Annexure Q” and “R”, are various invoices, receipts and quotation highlighting the progress that the applicant is achieving. Sadly, on the 25^th October 2011, the applicant through one of its Committee members, Syril Mupanguri, during his routine visits to Waterfalls District Office, which is delegated by the fifth respondent with the administration of the affairs within the District of Waterfalls and surrounding areas, discovered that the General Plan CG2836 relating to the property had been cancelled and that a delegation had been assigned to carry out evaluation of the property in giving effect to the cancellation.”

The first respondent went on to attach the consent order I have referred to which authorised it to service the Stands in question. That application was served the present applicant who went on to oppose it. On 18 November 2011 MWAYERA J granted a provisional order in favour of the first respondent in HC10716/2011 the interim relief of which reads:

“Pending the determination of this case the following interim relief is made:

1. The second respondent (Mvembe) or the Deputy Sheriff or his lawful deputy, as the case might be, be and is hereby interdicted from signing such documents and/ or papers passing transfer to the first respondent (the applicant in casu) of certain immovable property namely Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25,0532 hectares.

2. Consequently, the fourth respondent be and is hereby interdicted from accepting, approving such documents and/or papers as may be presented to him to effect such transfer of the aforesaid property into the first respondent's name.

3. The third respondent (Surveyor General) is interdicted from implementing a new Plan in place of Plan CG2836.

4. The fifth respondent is interdicted from implementing any Plan brought into effect by the third respondents in place of Plan CG2836.”

The confirmation or discharge of that provisional order is still to come. Be that as it may, the applicant has approached this court on an urgent basis seeking a provisional order in the following terms:-

“TERMS OF THE FINAL ORDER SOUGHT

That you cause to this Honourable Court why a final order should not be made in the following terms:-

1. It is declared that the first respondent has no right to carry out any development works on the piece of land described as Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25,0532 hectares and which works are founded upon the existence of General Plan CG2838 unless and until the order granted by the Court under HC10716/2011 has been set aside.

2. The second to fifth respondents are ordered not to approve, supervise or authorise any development works being carried out by the first respondent on Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25,0532 hectares unless and until the order granted by the Court under HC10716/2011 has been set aside..

3. The first respondent to pay costs of suit.

INTERIM RELIEF SOUGHT (SIC)

Pending the determination of case no. HC10716/2011, the following interim relief is granted:

1. The first respondent is interdicted from servicing or developing Stands on certain immovable property, namely, Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25, 0532 hectares.

2. The first respondent is interdicted from selling or advertising for and accepting payments towards contributions for service charges for the Stands on the property Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25,0543.

3. The second and fourth respondents are interdicted from supplying water and other services to the first respondent until the issue of the cancelled permit and ownership of Newark of Hilton of Subdivision A situate in the District of Salisbury measuring 25,0532 (sic) hectares is finalised.

4. The second, third and fifth respondents are interdicted from authorising supervising or approving construction of roads and storm water drainages being constructed by the first respondent on the property Newark of Hilton of Subdivision A of Waterfalls situate in the District of Salisbury measuring 25,0532 hectares.”

Among other documents, the applicant annexed the provisional order of MWAYERA J in HC10716/2011; the consent order of MAVANGIRA J in HC7312/2006 and a press statement published by the first respondent in the Herald Newspaper of 27 November 2012 which reads in relevant part thus:-

“MILTON GARDENS ASSOCIATION PRESS STATEMENT

We wish to advise that Milton Gardens Association is the holder of a Deed of Cession entered into and signed by Max Management (Pvt) Ltd basically ceding its rights and obligations as the Developer of a certain piece of land known as Newark of Hilton of Subdivision A of Waterfalls, Harare.

To enable the Association to comply with the conditions of the Subdivision permit and to ensure substantial servicing of the development, individuals who have interest, right or title in the Stands listed hereunder are being called to confirm their interest, right and title and make payments towards contributions for service charges.”

On 15 December 2011, I issued a consent order under Case No. HC7992/2010 in the following terms:

“1. That it be and is hereby declared that the remaining extent of Lot 19 of the Umsungwe Block in the District of Gwelo, (Now Gweru) measuring 69.5113 hectares held under Deed of Transfer 9990/66 (“the property”) up until 26^th November, 2010 was owned by applicant.

2. That it be and is hereby declared that first respondent's summary entry, occupation and use of the property is unlawful having been occasioned without due process and amounts to spoliation.

3. The parties hereto hereby acknowledge and accept that first respondent established a maize crop on a portion of the property and notwithstanding the provisions of para 2, applicant shall allow first respondent and his employees/ representatives therepresent to at all reasonable times have reasonable access to the said crop for the purposes of maintenance which access shall continue up to the harvesting of such crop, subject further to the understanding and undertaking that there shall be no acts of intimidation and interference to applicant, employees and representatives and reciprocally by applicants, first respondent and his representatives/employees.

Further, in addition, the applicant and his representatives/employees and first respondent and his representatives/employees shall, during the currency of this order, do all that is reasonable, necessary and practicable to ensure that the first respondent's integrity to the crop shall be maintained.

4. That first respondent's employees/representatives who have de facto established temporary accommodation, being a wooden cabin/and toilet, on the property, shall, pursuant to the provisions of para 3, be entitled to continue to reside in such structures without interference until such time as the maize crop has been harvested and further subject to the provisions of law.

5. That there be no order as to costs.”

On 8 February 2007, the parties reached agreement as to custody, maintenance and access to the minor children and had that agreement recorded and to form part of the final order. That agreement reads:-

“1. That plaintiff and defendant are agreed that the marriage relationship between them has irretrievably broken down to such extent that there is no reasonable prospect of a restoration of a normal marriage relationship between them and that a decree of divorce be issued.

2. That custody of the minor child Shane Sydney Dicks (born 3 December 1993) be awarded to plaintiff.

3. That defendant be afforded reasonable rights of access to the minor child Shane Sydney Dicks.

4. That custody of the minor child Carlene Dicks (born 29 December 1991) be awarded to defendant.

5. That plaintiff be afforded reasonable rights of access to the minor child Carlene Dicks.

6. That plaintiff be and is hereby ordered to pay maintenance for the minor child Carlene Dicks in the amount claimed by defendant, as amended in defendant's Plea, the amount to be paid during holidays and whilst the minor child is resident with defendant and until such time as Carlene shall have completed her secondary schooling and reached the age of majority or becomes self- supporting.

7. That plaintiff shall pay all necessary school fees, levies and other incidental costs for purposes of the schooling of Carlene, the parties to this action being agreed that it is in the best interests of Carlene, that she be enrolled at a suitable boarding school such as Watershed College or such similar institution in Zimbabwe as soon as reasonably practicable. Pursuant thereto, plaintiff shall be responsible for the payment of all necessary school uniforms, sporting equipment, stationery and other school material for Carlene in respect of such school including reasonable pocket money and expenses required during term times.

8. That plaintiff shall continue to retain Carlene on his Medical Aid Scheme and shall forthwith pay any shortfall that might arise in respect of any necessary medical attention to Carlene.

9. That defendant shall be responsible for the costs of maintenance for Shane on the occasions when Shane might reside with defendant in Zimbabwe, it being recorded that plaintiff has been, and shall continue to be, solely responsible for the maintenance and education of Shane who, it is recorded, is enrolled at school in the Republic of South Africa.

10. Plaintiff shall contribute the sum of $60,000= maintenance per month to the defendant until such time as defendant dies or remarries, whichever is sooner, and, further, subject to a variation of maintenance on good cause shown in accordance with the Maintenance Act.

11. The parties shall forthwith make available to one another, copies of any school reports concerning the minor children of the marriage and shall do all that is reasonable to facilitate and ensure meaningful and reasonable access for the minor children to contact their parents through telephone and e-mail and the like.”

The above was signed for by the parties' respective legal practitioners on 12 February 2007.

Thereafter, the parties continued negotiating over the outstanding issues.

The genesis of this matter is that the first respondent sued the applicant and the second respondent, his driver, in HC10768/11 for damages arising from bodily injuries, pain and suffering and medical expenses as a result of a road accident which occurred on 4 April 2011. The first respondent had been cycling when he was knocked down by a commuter omnibus belonging to the applicant and driven by the second respondent.

In that action, the first respondent alleged that the accident was caused by the negligence of the applicant's driver who was acting within the scope and course of his employment and sought damages of US30,000= for pain and suffering, US$31= transport costs and US$2,599= for medical expenses. Both the applicant and the second respondent contested the action alleging that the accident was, instead, caused solely by the negligence of the first respondent.

They were represented by legal practitioners of their choice, Messrs C Mpame & Associates.

When the matter came up for the pre-trial conference of the parties before a judge, on 27 July 2012, it was postponed “for further engagement by consent of both parties.” It was again postponed on 19 October 2012 “for further discussion.” Clearly, the parties were engaged in negotiations to settle the dispute.

The negotiations led to the filing of a consent order by the parties on 26 November 2013. V.C. Maramba of Thondlanga & Associates signed the consent on behalf of the first respondent while B M Machanzi of C Mpame & Associates signed on behalf of the applicant. An order was then granted by consent by DUBE J in the following:

“IT IS ORDERED BY CONSENT THAT:

1. The first defendant (Alfred Mamvura) shall pay to the plaintiff an amount of US$2,000= in special and general damages arising out of a road accident on or before the 30^th of June 2013.

2. The second defendant (applicant in casu) shall pay to the plaintiff an amount of US$8,000= being special and general damages and future medical expenses on or before the 31^st of January 2013.

3. Each party to meet its costs of suit.”

It now turns out that the applicant did not satisfy the judgment resulting in the first respondent issuing a writ against his property and the attachment of such property on 26 February 2013. It is remarkable that Mpame & Associates have not renounced agency on behalf of the applicant. This prompted the applicant to make this application through a different firm of lawyers seeking the relief aforesaid.

In his amazingly brief founding affidavit, the merits of the application are dealt with in essentially five short paragraphs which read:

“6. I was not aware of the judgment in the matter yet I filed all proceedings and even filed summary of evidence in case number 10768/11.

7. A perusal of the record, through my legal practitioners of record, depicts that all pleadings were done and matter was set down for pre-trial conference before Justice DUBE.

8. Instead of proceeding to trial, I am advised my then legal practitioners filed a consent order and same was not shown or explained to me. I did not authorise them to consent to the judgment as I have a defence to the claim. I have attached hereto a copy of my plea to the case marked annexure “D”.

9. I will suffer irreparable harm if the Deputy Sheriff is not barred from removing my property as I may not be in a position to recover the said property from the first respondent who is of very little means.

10. I need to file an application for recession (sic) of the purported judgment in case number 10768/11 after my legal practitioners of record have (sic) allowed enough time to complete compiling grounds for rescission of judgment.”

It is unbelievable that this is all the applicant has to say in support of an application which seeks to overhaul a court order which was granted by consent. He insinuates that his chosen legal practitioner is guilty of improper conduct of consenting to an order without his authority, yet he does not find it necessary to explain how this came about. More importantly, no affidavit has been elicited from that legal practitioner explaining his involvement and how and why he acted without his client's mandate.

Significantly, the same legal practitioner still represents the applicant in that matter because he has not renounced agency. The applicant does not even suggest that he has taken the issue up with that legal practitioner to seek redress or that he has reported the matter to the Law Society of Zimbabwe; that body charged with superintending and overseeing the activities of legal practitioners in this country. In fact, the applicant's deposition is deliberately silent on all those monumental issues….,.

In casu, it is clear that the applicant reached a compromise with the first respondent which led to the reduction of the latter's claim from more than US$30,000= to US$8,000=. An order to that effect was then granted by consent. He cannot come back now seeking to upset the apple cart using half-truths, falsehood and outright dishonesty.

He must just honour the court order…,.

It is now in vogue for litigants who find themselves with court orders against them which they would have consented to or who have compromised their cases to simply change legal practitioners and then bring applications to overturn such court orders or processes without even abiding by the Rules of court dealing with change of legal representation.

In my view, this is not only mala fide and dishonest in the extreme, it is also a shameless abuse of court process which should be discouraged.

I therefore come to the inescapable conclusion that this application is devoid of merit and as it is also an abuse of process, which is frowned upon by the courts, it must also come heavy on the pocket. The applicant must therefore bear the costs of his misadventure on a punitive scale.

The parties appeared before a pre-trial conference judge where they, according to their joint pre-trial conference minute, agreed on the following:

1. Custody of the two minor children, namely X born on DATE, and Y born on DATE 2 be awarded to the Defendant.

2. The plaintiff shall pay maintenance of US$100= per month per child and pay for their school fees and other school related requirements.

3. The plaintiff shall pay spousal maintenance to the defendant at the rate of US$100= per month until she dies, remarries, or the order is varied by a competent court.

4. The plaintiff shall have access to the minor children on every alternative school holiday and every alternative weekend.

5. The movable property is awarded to the defendant as her sole and exclusive property.

6. The defendant shall be awarded the matrimonial home known as Stand Number 9427 Stoneridge Phase 2 Stone Ridge Park as her sole and exclusive property….,.

The defendant led evidence and sought to change agreement number 6 in their joint pre-trial conference minute. She alleged that the plaintiff's lawyer forced her to make that concession.

When asked how she could be forced by the other party's legal practitioner when she was legally represented she ended up saying she had agreed. Counsel for the defendant, in her address to the court, conceded that it was inconceivable that the defendant could be forced by the plaintiff's lawyer in the presence of her lawyer who signed the joint pre-trial conference minute. She sought to explain the defendant's statement as a failure to express herself when she said she was forced.

This means there is no substance in the defendant's belated attempt to claim more maintenance than she had previously agreed to. It is also apparent that the plaintiff has been very generous in agreeing that she take all the movables and the immovable they acquired during the marriage. He is still paying for the matrimonial home which he fully relinquished to the defendant. This seems to indicate a desire by the plaintiff to free himself from the defendant at any cost….,.

1. …,.

2. Custody of the two minor children, namely X born on DATE, and Y born on DATE 2, be awarded to the defendant.

3. The plaintiff shall pay maintenance of US$100= per month per child and pay for their school fees and other school related requirements until each child attains the age of majority.

4. The plaintiff shall pay spousal maintenance to the defendant at the rate of US$100= per month until she dies, remarries, or the order is varied by a competent court.

5. The plaintiff shall have access to the minor children on every alternative school holiday and every alternative weekend.

6. The movable property is awarded to the defendant as her sole and exclusive property.

7. The defendant shall be awarded the matrimonial home known as Stand Number 9427 Stoneridge Phase 2 Stone Ridge Park as her sole and exclusive property.

Counsel for the third respondent submitted that the third respondent would have no problem in the order sought by the applicants being granted after the lapse of two months from the date of the hearing. 

The two months has lapsed so I have no option but to grant the order….,.

I, accordingly, make an order in the following terms:

It is ordered that:

1. The 3^rd respondent be and is hereby directed to gazette a date for elections within fourteen days of service of this order on him in the following House of Assembly constituencies, Nkayi South, Lupane East and Bulilima East.

It is common cause that the parties, in paragraph 4 of their consent paper, provided for variation of the consent paper as follows;

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

The decision as to the date applicable in relation to the conversion of the local currency into foreign currency was established by the judgment of this Court in the earlier proceedings and was part of the order in terms of which the matter was remitted to the Labour Court for a proper assessment of back pay due to the respondent. It was not an issue for debate before the Labour Court.

In addition, given the concession made in the earlier appeal it is unacceptable, in my view that the appellant would still seek to present argument on the date of conversion of the local amount into foreign currency for purposes of payment.

The order of 15 March 2011 binds this Court. 

It is not the appellant's prayer that the judgment be revisited. Nor can it be, as the judgment was issued with the consent of both parties following upon a concession by the appellant that the total sum due to the respondent as damages was Z$692,118= in local currency.

In furtherance of his bid to avoid paying arrear maintenance for his child, the appellant argued, with some force, that the agreement, without reference to court, amounted to an unlawful variation of a court order rendering it unlawful and unenforceable.

A maintenance court order is designed to provide the minor child with the basic necessities of life according to its parents' means and status in life. It is by no means a bar to parties agreeing to vary the award in the best interest of the child as happened in this case.

While in Godza v Sibanda HH254-13, the High Court expressed the need for parties to apply to court before departing from a lawful binding court order it was not laying down a hard and fast rule but a general rule subject to alteration or modification depending on the exigencies of each case.

A survey of the authorities shows that it is permissible for parties to agree to vary such court orders without reference to court. This prompted BEADLE AJ…, to remark, in Exparte Boshi & Anor 1978 RLR 382 (H)…, that:

“In matters such as this where the amendment can be of interest only to the parties themselves, I do not think the court would require formal amendment of the original order or consider it discourteous to the court if no formal amendment was applied for.”

In this case, it is clear that the parties tacitly agreed to amend the original consent court order in the best interest of their minor child and the subsequent claim for arrears arising from that agreement could only affect none other than the parties themselves. That being the case, the parties were within their rights to amend the consent order regulating their divorce without reference to court. The agreement was therefore, lawful and enforceable at law like any other contractual agreement. In the words of BEADLE AJ…, in Exparte Boshi & Anor 1978 RLR 382 (H):

“The parties having entered into an agreement, it may be enforced as an ordinary contract and to apply to court for the amendment seemed a waste of costs.”

Our legal system pays great honour to the doctrine of sanctity of contract to the effect that lawful agreements are binding and enforceable by the courts. In Book v Davidson 1988 (1) ZLR…, the court held that, it is in the public interest that agreements freely entered into must be honoured.

The appellant, having agreed to pay the medical aid subscriptions and maintenance in all the amounts claimed and in the absence of any error in calculation or fraud, he is firmly bound in contract and in terms of section 11 of the Matrimonial Causes Act [Chapter 5:09]. Thus, the court a quo did not err at all when it ordered the appellant to discharge his maintenance obligations arising from a lawful court order subsequently modified by mutual agreement in the best interest of the minor child of the parties according to law….,.

1….,.

2….,.

3.1…,.

3.2…,.

4….,.

5. Other matters as between the parties shall be governed in terms of this court's order granted on the 17^th September 2014 with the consent of the parties, which order is hereby incorporated as part of this order.

6. Each party shall bear their own cost of suit.

WHETHER THERE WAS NEED TO VARY THE CONSENT PAPER

The respondent argued that since the parties had voluntarily agreed to the issues of maintenance by way of a consent paper, the court could not re-write the agreement for the parties by allowing the appellant an upward variation of the maintenance amount stated therein. It was argued that, in these circumstances, the appellant should have sought rescission or withdrawal of the consent paper and that good cause for such rescission had to be shown. In short, it was argued that, in the absence of a rescission, the parties could not revisit what was agreed upon in terms of the consent paper.

The respondent, in my view, is wrong in making the above submission.

Firstly, the consent document itself provides, in paragraph 4.3, for the occasional review of maintenance. This was an express term of the Consent Order which the parties agreed upon. An application for a variation of maintenance was therefore contemplated by the parties.

Further, section 7(1)(b) of the Matrimonial Causes Act [Chapter 5:13] provides for the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or child of the marriage. Section 7(5) of the Act allows a court, in granting a decree of divorce in accordance with a written agreement between the parties to, inter alia, make an order for the payment of maintenance.

This is what happened in this case.

The consent paper was, by consent of the parties, incorporated as part of the order of the High Court. Section 9 of the Matrimonial Causes Act [Chapter 5:13], in turn, allows a court, on good cause shown, to vary any order made in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The consent paper signed by the two parties was incorporated as part of the order of the court a quo. In terms of section 9 of the Matrimonial Causes Act [Chapter 5:13] the maintenance awarded can be varied without the need to first revoke the consent given in that paper. Whilst it is clear that the consent paper records a compromise reached by and between the parties, the agreement is however regulated by statute once incorporated as an order of court.

The submission by the respondent that there was need for a formal withdrawal of the consent therefore has no substance, viewed both from the terms of the consent paper itself and at law.

The applicant approached the court under a broad umbrella for variation of a consent paper incorporated into an order of this court in HC7216/07. In another breath, the applicant sought to amend the consent paper on the basis that she believed, at the time that she entered into the consent paper, that she did not get a good bargain. In other words, she feels she was short-changed because she did not know all the assets the respondent had.

The brief background of the matter is that the applicant and respondent were married in terms of civil rites and the marriage was blessed with two daughters. On 17 December 2009, the parties, after entering into a consent paper, were granted divorce and the terms of the consent paper governing ancillary issues were incorporated into the divorce order by consent. The applicant was, among other things, awarded custody of the minor children while the respondent, among other things, was ordered to pay maintenance for the two minor children. A reading of the applicant's founding and replying affidavit goes at length to show a desire by the applicant to revisit the consent paper and amend the same on the basis that she feels the respondent has a lot of assets. The parties freely and voluntarily entered into a contract governing the terms of dissolution of their marriage and ancillary issues. To then seek to amend the consent paper, which, in fact, is incorporated as a court order, on basis of not having bargained fairly has no sound legal basis, moreso in the nature of proceedings before the court.

One can only sympathise with Ms Dube, who appeared for the four defendants instructed by Joel Pincus Konson and Wolhuter Legal Practitioners of Bulawayo, who appeared at the scene rather late with a brief which may not have disclosed that the case for the defendants had been so messed up not only through the tardiness of those tasked with the responsibility of representing the defendants but also through their arrogance as they concentrated on preventing the commencement of the trial at all costs as opposed to pleading the case for the defendants to the best of their ability - itself an arguable case indeed….,.

The plaintiff is a purveyor of explosives whose daily business is to buy and sell explosives and its clientele is the generality of companies and individuals engaged in mining operations. In the course of its business, it supplied the four defendants, separately, with an assortment of explosive products for varying sums of money. When payment was not forthcoming the plaintiff sued.

In HC1575/14, the plaintiff sued Falcon Gold Zimbabwe Limited t/a Golden Quarry for payment of the sum of $18,140= together with interest and costs of suit in respect of goods sold and delivered to that defendant on 5 and 13 December 2013. In HC1576/14, the plaintiff sued Falcon Gold Zimbabwe Limited t/a Dalny Mine for payment of $18,600=. In HC1577/14, the plaintiff claimed $40,450= against Casmyn Mining Zimbabwe (Pvt) Ltd which apparently trades as Turk Mine, while in HC1578/14 the plaintiff claimed $25,056=82 from Olympus Gold Zimbabwe Limited trading as Old Nic Mine.

It so happens that the four defendants are sister companies although nothing of the sort is pleaded and they are all represented by the law firm of Joel Pincus Konson & Wolhuter who entered appearance on their behalf in respect of all the matters. They also filed a standard plea in all the matters at some stage complete with a standard error of citing the defendant as “Falcon Gold Zimbabwe Limited t/a Golden Quarry Mine” even in those matters where the defendant was something else. They later filed amendments to correct that.

The standard plea filed in respect of all the four matters reads:

“1. Defendant admits purchasing explosives and associated accessories from plaintiff for the amount stated.

2. Defendant however denies any liability to pay the amount claimed or any part thereof on the basis that during the period extending between 30^th of January 2012 to the 10^th of April 2013 plaintiff unlawfully received from defendants' employee, one Richman Zvabvirepi, 133 boxes of explosives stolen by the latter from defendant's stores, with a total value of between US$95,000= knowing such goods to have been stolen from defendant by Mr Zvabvirepi, which stolen goods plaintiff converted to its own use as a dealer in explosives. Defendant reported the matter to the police who have since arrested and preferred charges against Jackson Saungweme, director of plaintiff.

3. In the circumstances, defendant has separately filed a counterclaim in these proceedings for the full value of the explosives unlawfully received by plaintiff and converted by the latter to its own use.

4. Wherefore, praying for consolidation of the respective claims filed by plaintiff under case numbers HC1575/14, HC1576/14, HC1577/14 and HC1578/14 referring to its counterclaim filed of record under case number HC1575/14, which defendant incorporates herein by reference and tendering the sum of US$7,506=82 being the difference due to plaintiff's aggregate of US$102,506=82 under case numbers HC1575/14, HC1576/14, HC1577/14 and HC1578/14. Defendant prays that plaintiff's aggregate claims under HC1575/14, HC1576/14, HC1577/14 and HC1578/14 may be dismissed with costs on the legal practitioners and client scale.”

Other than the reference to the counter claim in paragraph 4 of all the pleas filed, no counter-claim was filed in three of the matters. It was only filed in HC1575/14, the case against Falcon Gold Zimbabwe Limited t/a Golden Quarry.

In the counterclaim, the defendant in HC1575/14 averred that 133 boxes of explosives and associated accessories valued at $95,000= were stolen from it by its employee, Richman Zvabvirepi, acting in criminal connivance with the plaintiff. It further averred that the plaintiff purchased and took delivery of the goods knowing them to have been stolen from its stores.

It therefore pleaded set-off….,.

The plaintiff…, led evidence from Jackson Saungweme, its Managing Director merely confirming the four claims which were admitted by the defendants. He was cross-examined by counsel for the defendants who was only putting forward the basis of the counterclaim.

Thereafter, the plaintiff closed its case.

It was after the plaintiff had closed its case that Ms Dube, for the defendants, moved an application for an amendment of their pleadings.

She submitted that they proposed to lead evidence to the effect that the defendants are subsidiaries of a holding company known as New Dawn Mining (Pvt) Ltd - itself not cited in any of the proceedings. Their approach was that whatever was owed to one was owed to all of them. There was therefore a mistake in pleading their case which they wished to correct by effecting an amendment. The mistake was in submitting a counterclaim in HC1575/14, a case involving the plaintiff and Falcon Gold Zimbabwe Limited t/a Golden Quarry. The latter company did not employ Richman Zvabvirepi, who, at all times, was employed by Casmyn Mining (Pvt) Ltd t/a Turk Mine. The alleged theft by that individual is the source of the counter-claim, but, through in-attention, the counterclaim is sitting in a matter which does not involve Casmyn Mining (Pvt) Ltd t/a Turk Mine. The effect of the amendment would be to uplift the counterclaim from where it is and plant it in HC1577/14.

Counsel for the defendants urged me to exercise my discretion in favour of the defendants and grant the amendment. What the court has regards to in deciding whether to allow an amendment or not was succinctly set out in UDC v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H)…, as:

1. Whether to grant or refuse an amendment is discretionary upon the court;

2. An amendment cannot be granted for the mere asking but some explanation must be offered therefore;

3. The applicant must show that, prima facie, the amendment has something deserving of consideration - a triable issue;

4. The modern tendency is that the court will generally grant an amendment if it facilitates the proper ventilation of the dispute between the parties;

5. The party seeking it must not be mala fide;

6. It must not cause an injustice to the other party which cannot be compensated by costs;

7. The amendment should not be refused simply as punishment to the applicant for neglect;

8. A mere loss of time is no reason in itself to refuse the application; and

9. If the amendment is not sought timeously some reason should be given.

See also Commercial Union Assurance Co. Ltd v Waymark N.O. 1995 (2) SA 73…,; Whittaker v Roos and Another 1911 TPD 1092…,; Kingdom Merchant Bank Ltd v Shah and Another HH159-13; Nuvert Trading (Pvt) Ltd t/a Triple Tee Footwear v Hwange Colliery Company HH791-15.

In exercising my discretion whether or not to grant the amendment I considered the above guidelines. I was mindful of the fact that although there is a discretion reposed upon me, such must be exercised judiciously. In my view, although the court will ordinarily lean in favour of granting an amendment an amendment should not result in prejudice to the other party which cannot be rectified by an order of costs.

It occurs to me that when an amendment is sought after the closure of the plaintiff's case and the plaintiff does not have an opportunity to address the amendment in evidence, no doubt, the plaintiff will suffer prejudice. It would be remembered that the purpose of pleading is to inform the parties of the case they have to meet at the trial and also to identify the branch of law under which the claim has been brought: Chifamba v Mutasa & Others HH16-08.

Where a party has already met the opposing case in evidence and an amendment is then sought after that; such amendment is clearly an ambush designed to deprive the opponent an opportunity to properly meet the case and ventilate. It has the effect of completely incapacitating the other party. The application for such an amendment cannot possibly pass the test. This is particularly so when the applicant for an amendment has always known the case that is being relied upon and it should have been apparent much much earlier that something was amiss with the pleading.

I am unwilling to exercise my discretion in a way that will prejudice the other party. For those reasons, I refused the belated application for an amendment.

After that ruling, Ms Dube made a further application.

This time, she sought that the matters be stood down to the following day to enable her to take further instructions and to prepare for the presentation of the defendant's evidence from two witnesses which had been lined up. Surprising, though such request was given that the defendants were, even at that late stage, unprepared to present their case, I granted them the indulgence.

Further surprises surfaced when the trial resumed the following day.

Instead of presenting the case for the defendant, counsel demanded that I rule on the status of the counter claim given that their application for an amendment had been refused.

Not a shred of authority for that novel application was cited and it was not disclosed how the court could be in a position to rule on a pleading standing on its own and not supported by evidence in the middle of a trial. Clearly, I was unable to determine whether the counterclaim was meritable without the benefit of evidence and I was unwilling to take the bait.

In my view, and I ruled accordingly, whether the counter-claim was sustainable or not was dependent upon the evidence that the defendants were going to lead. I advised the parties that I was unwilling to nail my colours on the mast before assessing all the evidence. I concluded that the counterclaim would remain as pleaded and that it was up to the defendants to lead evidence to sustain it.

Ms Dube promptly withdrew the counterclaim and indicated that all the defendants were consenting to judgment in the main claims. So ended the sordid affair which is regrettable indeed….,.

In the result, it is ordered that;

1. In HC1575/14 the defendant shall pay to the plaintiff the sum of $18,140= together with interest at the prescribed rate from 9 July 2014 to date of payment in full.

2. In HC1576/14 the defendant shall pay to the plaintiff the sum of $18,600= together with interest at the prescribed rate from 9 July 2014 to date of payment in full.

3. In HC1577/14 the defendant shall pay to the plaintiff the sum of $40,450= together with interest at the prescribed rate from 9 July 2014 to date of payment in full.

4. In HC1578/14 the defendant shall pay to the plaintiff the sum of $250,566=82 together with interest at the prescribed rate from 9 July 2014 to date of payment in full.

GUBBAY CJ, in the case of Tyser v Tyser 2001 (1) ZLR 134 (SC)…, said;

“Mr de Bourbon submitted that the learned judge was wrong in stating that a party who has signed a consent paper may resile therefrom at his or her volition at any time before the court embodies it in an order. I agree that to be relieved of the consequences of having entered into a consent paper, albeit not yet sanctioned by the court, is not dependant simply on change of mind. Sound grounds for seeking to withdraw must be established.”

A consent paper signed by the parties after they will have made admissions at the pre-trial conference, as happened in this case, is a compromise agreement which embodies admissions which cannot be withdrawn without complying with Order 27 Rule 189 of the High Court Rules 1971, which provides as follows;

“The court may, at any time, allow any party to amend or withdraw any admission so made on such terms as may be just.”

Rule 189 therefore requires admissions to be formerly withdrawn. In terms of Order 27 Rule 185, admissions can be made through “pleadings or otherwise in writing”. Admissions can therefore be made in writing through a consent paper.

There is no court order granting the defendant a right to withdraw the admissions she made in the consent paper….,.

1. The consent paper is still in force and must be properly withdrawn before the trial of this case can proceed.

An abuse of court process is the use of the process of the court for purposes for which it is not meant.

It is unfortunate in the extreme and should be supressed by all means possible as resort to it by litigants has always tended to bring the administration of justice to disrepute. The moment a litigant thinks he or she can come to court to seek shelter against imminent execution, not because the litigant has a cause of action but because they think they can mumble something in an application and hope that while the court struggles to decipher what it is they are saying, they can enjoy to shelter under the court's wings delaying the inevitable as much as possible, that is an abuse of court process. It is even more repugnant when it appears to be instigated by the involvement of a legal practitioner, who, as an officer of the court, should know better.

The two (2) applicants have come to court on an urgent basis seeking the following relief:

“TERMS OF THE FINAL RELIEF SOUGHT (sic)

That you show cause to this Honourable Court why a final order should not be granted in the following terms:

(a) Stay of execution be and is hereby granted.

(b) Cost of suit should not be awarded against 1^st respondent.

INTERIM RELIEF GRANTED

Pending the finalisation of this matter:- (sic)

(c) The execution of the first respondent's writ of execution in HC2594/13 be and is hereby stayed pending the finalisation of 1^st and 2^nd applicant's application for rescission of judgement in HC6560/14.

(d) Costs of suit are granted in favour of applicant on an ordinary scale.”

Never mind the procedural challenges posed by the wording of the provisional order, the grammatical frailties and the disregard of Form 29C given in the rules of court, but this is an application in which the applicants seek to renege from a judgement granted at a pre-trial conference by consent following a Deed of Settlement by the parties.

On 19 June 2012, the two (2) applicants concluded a sale agreement with the first respondent in terms of which they sold to him a 25 acre piece of land in Chegutu for $26,500=. When they failed to transfer the land to the purchaser, in breach of the agreement, he cancelled it and sued for the return of the purchase price. Although the applicants initially resisted the suit, they relented at the pre-trial conference. Self–acting, they signed a Deed of Settlement which was then reduced to a consent order granted on 3 June 2014, per BHUNU J, in terms of which they are required to pay the sum of $26,500= to the respondent. It would appear that when the Deed of Settlement was concluded the applicants had committed to paying the debt by 31 May 2014 but the ink on the Deed had hardly dried when they returned, down on their knees, they filed a document which they christened: “Request for further extension on Deed of Settlement” to wit:

“The 1^st and 2^nd defendants (the applicants herein) having reached settlement with the plaintiff on all issues in dispute on or before the 31st May 2014 hereby kindly request for the extension on stay of execution due to the following reasons:

1. That the defendants had entered into an agreement with a third party who had agreed to advance them with the proceeds from the sale of tobacco harvest.

2. The above was to be done before the 31^st of April 2014 (sic).

3. That the liquidity challenges currently being faced in the country's economy has had a serious negative bearings (sic) on issues such as this one which require liquidity settlement.

4….,.

5. Be and it is hereby kindly requested a further extension to time and further PTC before Honourable Justice BHUNU to consider and probably agree on a new payment plan being proposed by the defendants as follows:

(a) That a down payment of $1,000= (one thousand dollars) on or before 31 May 2014 from the soya bean harvest from a buyer who has already been identified.

(b) That a monthly instalment of $500= (five hundred dollars) from horticulture proceeds until the whole amount is settled.

(c) Consider amortisation figures to cover interest on the monthly outstanding balance.

6….,.”…,.

The buyer of soya beans must have disappointed because on 10 June 2014 the applicants, this time acting through their legal practitioners, Ngarava, Moyo & Chikono, dispatched another proposal in the following:

“Our client advised us that the matter had gone to pre-trial conference level and a Deed of Settlement was signed by the parties to the litigation. Considering the economic environment prevailing it has turned out that it is very difficult for the other party to fulfil their part of the bargain. We note that the land in question is still available. We are in the process of getting instructions from our client with a view of settling the matter amicably. We are aware that efforts have always been made to achieve the same result.”

Enter a new set of legal practitioners following the attachment of property on 31 July 2014 and the commendable spirit of amicably settling the matter is sacrificed at the alter of expediency and the applicants start singing a different tune.

In the founding affidavit of the first applicant, he states that they “did not fully appreciate the consequences of our concession” and go on to mumble something to the effect that they thought they were only admitting to having received the purchase price and that they have now been advised by their legal practitioners that they have a bona fide defence in that the first respondent was unjustly enriched by occupying the piece of land for two (2) years.

They have now filed an application for rescission of the consent judgment and would want execution to be stayed pending a determination of that application.

Now, to me this is trifling with the court in the extreme and a lamentable abuse of process. It would appear that the applicants underwent their damascene experience the moment they sought and obtained legal counsel from a new set of legal practitioners. The same people who admitted receiving the purchase price and failing to transfer the land to the buyer; who have been pleading for months for more time to sell their produce in order to pay what they know to be rightly due; and filed a document in this same court asking it “to consider and probably agree on a new payment plan” have thrown all that out through the window and would want the court to reverse the whole process.

If that is not an abuse of process of gigantic proportions, then nothing is.

As to why this court should always stand ready to cushion the applicants in their vacillations we are not told. What is however clear is that after the applicants could not raise the money they undertook to refund they thought of coming to court for shelter and not to pursue any recognisable remedy. They have none and this application is thoroughly without merit.

While it is true that in terms of Rule 56 of the High Court Rules, a judgment given by consent may be set aside by the court and leave given to the defendant to defend, such leave can only be given on “good and sufficient cause”. I am aware that I am not sitting to determine the merits of the application for rescission of judgment, I having been asked only to stay execution. However, a stay of execution is discretionary upon the court and this court is not in the habit of exercising its discretion in favour of those unashamedly abusing its process, for an abuse of monumental proportions this application is.

In determining what constitutes “good and sufficient cause” the same principles used to determine that in an application to set aside a judgment given in default apply. In addition, a party will not normally be permitted to fight over again a battle which has already been fought unless there has been a significant change in circumstances or a party has become aware of facts which he could not reasonably have known or found out in the first encounter: Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Nyemba v CBZ Bank & Ors HH255-14.

To my mind, the inability to raise the money due in terms of a consent order is not one such circumstance and certainly not a fact the discovery of which would entitle a party to a second bite at the cherry as it were.

Counsel for the applicants has submitted that there are material disputes of fact which can only be determined at the trial - as if this is an application for summary judgment.

He further argues that the applicants suffered court fright at the pre-trial conference which caused them to capitulate when in fact they had a defence. The defence is in the form of a counterclaim for use of the land which the respondent enjoyed before the agreement was cancelled. It is significant that there was no counter-claim for that filed in the main action. It is difficult to understand how the existence of such counterclaim has only been discovered now. There is nothing new that the applicants were not aware of at the time that they consented to judgment.

Something has also been said about the applicants not being aware that they could have offered alternative land to the respondent. What this means is that the applicants would want to negotiate a new contract with the respondent.

While I am not dealing with the rescission of judgment application, in determining whether to exercise my discretion to grant the applicants the indulgence of a stay of execution, I must have regard to whether they at least begin to present good and sufficient cause to reverse the consent order. I am not persuaded any such cause is presented.

Counsel for the respondent has asked for costs on a higher scale to be granted.

I have no doubt in my mind that the applicants' misguided effort must be rewarded, not with the order that they seek for they do not deserve it, but with an award of punitive costs which they richly deserve for daring to think that this court should be drawn to the sphere of kindergarten.

In the result, this application is hereby dismissed with costs on the legal practitioner and client scale.

The applicant must either be a very unlucky person or an extremely unwise one prone to making poor business decisions. According to him, the unfolding events in this matter have just unwittingly conspired against him without his involvement resulting in him facing an aminous judgment of US$150,608=74 entered by consent and the prospect of his house in Mutare being auctioned over a debt which has nothing to do with him.

He now seeks a rescission of that consent judgment.

He says that several years ago, in the 1990s, he found himself as joint owner of a house in Cranborne, being Stand 9522 Salisbury Township, Harare which he did not purchase and had nothing to do with. Much later, he unwittingly signed a Deed of Guarantee at CBZ Bank, the first respondent, without knowing it thinking that he was only committing to the Cranborne house being mortgaged by his brother, Farai William Nyemba, the fifth respondent. His misfortunes did not end there because when the Bank sued him, his brother, and others, in HC4912/10, on the basis of the instrument of debt he had signed, the summons was served on his brother's gardener, Clever Chibanda, who did not bring it to his attention. Although appearance to defend was duly entered on his behalf and a plea filed by Gunje & Chasakara, this was fortuitous as, not only was he not aware of that eventuality, he also had not instructed the erstwhile law firm to do so on his behalf.

That is not all.

Throughout the process of filing of pleadings he was still unaware that there was litigation involving himself which was taking place in Harare. He lives in Chiredzi and owns another property in Mutare. When the matter was set down for pre-trial conference and negotiations for settlement ensued with him being represented by a legal practitioner, this was unknown to him, so was the consent to judgment signed by Mr Chasakara of Gunje & Chasakara Law Firm on 27 July 2011 on his behalf which resulted in a consent judgment granted by CHATUKUTA J on 28 July 2011.

He would therefore like that judgment to be rescinded on the basis that he never consented to it.

Now this is an unlucky man indeed. It is significant that the applicant states that he was aware that he was a joint owner of the Cranborne house used as security for a debt owed to the first respondent. He also “recalls” that the second to fifth respondents obtained a loan from the first respondent. He confirms that he indeed went to the Bank to sign documents believing that he was only signing a consent for the use of the Cranborne house as security for the loan. In his founding affidavit he vehemently denied being a debtor and specifically stated at paragraph 28 thereof:

“To the best of my knowledge I am not a debtor to the 1^st respondent, nor did I ever sign any document as surety or a co-principal debtor.”

We know of course that he did sign a guarantee on 4 September 2008 along with his brother, the fifth respondent, in terms of which they stood as sureties and co-principal debtors for the loan advanced to Praise Petroleum (Pvt) Ltd, the second respondent. The applicant was therefore not being candid with the court in his founding affidavit.

Subsequent to the signing of the guarantee, the applicant must have also signed a mortgage bond in favour of the Bank because it is common cause that the Cranborne house was mortgaged. When the loan was not repaid summons was issued against the applicant and the second to fifth respondents in July 2010 and it was served at 70 The Chase, Mount Pleasant, Harare, upon “Clever Chibanda, the said defendant's gardener who accepted service on behalf of” all the defendants in that matter. This was on 4 August 2010. On 16 August 2010 Messrs Gunje & Chasakara Law Firm entered appearance on behalf of all the defendants. On 15 September 2010 they filed a plea on behalf of all the defendants. Much later, on 28 July 2011, the parties attended a pre-trial conference before a judge where they signed a consent order which was then granted by the court.

The applicant has made an application in terms of Rule 56 of the High Court of Zimbabwe Rules, 1971 for the rescission of that consent judgment on the basis that he never consented to it.

He says he was not aware of the summons as it was not brought to his attention. He therefore did not instruct Gunje & Chasakara to represent him. He only learnt of the litigation on 17 September 2013 when he was notified of the writ of execution by the fourth respondent. He then obtained copies of the relevant documents from his nephew, the third respondent.

The application is opposed only by the first respondent. The second and third respondents only sneaked in an affidavit, albeit out of time, which is neither an opposing affidavit nor a supporting affidavit. So did Tererai Hilary Gunje, a senior partner at Gunje & Chasakara, who was not even the legal practitioner dealing with the matter; it having been handled by Martin Chasakara who also signed the consent order before CHATUKUTA J.

The first respondent has contested the filing of those affidavits on the basis that their inclusion is irregular. The first respondent insists that no reasonable explanation has been given for the turn of events which led to the consent order. Apart from the applicant being bound by the Deed of Guarantee that he signed, he was aware that the Cranborne house he jointly owned was auctioned and that it did not realize the value of the judgment. As the principal debtor has not contested the judgment, the applicant is bound as surety and co-principal debtor.

In terms of Rule 56:

“A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems just.”

Both counsel have referred to a number of authorities explaining what the court has regards to in determining good and sufficient cause which I have found quite useful. In Roland & Anor v McDonnell 1986 (2) ZLR 216 (S) the headnote reads:

“A judgment given by consent may be set aside on good and sufficient cause; 'good and sufficient cause', in this context, is to be determined according to the same principles by which it is to be determined in an application to set aside a judgment given by default. Moreover, a party will not normally be permitted to fight over again a battle which has been already fought unless there has been a significant change in circumstances or the party has become aware of facts which he could not reasonably have known or found out in the first encounter.”

The same principles applied in determining good and sufficient cause within the meaning of Rule 63 therefore apply to an application for the rescission of judgement made in terms of Rule 56. At p226 the court stated these as:

“In coming to a final decision one has to ask whether the defendant has shown 'good and sufficient cause' within the meaning of Rule 63 of the High Court Rules. Did the court a quo take into account;

(a) The defendant's explanation of his default;

(b) The bona fides of the application to rescind the judgment; and

(c) The bona fides of the applicant's defence on the merits of the case; and, did the court normally consider these matters in conjuction with each other and cumulatively.”

See also Stockill v Griffiths 1992 (1) ZLR 172 (S)…, where the point is strongly underscored that:

“These factors must be considered not only individually but in conjuction with one another and with the application as a whole.”

After making reference to a number of authorities on the subject including what HEFER J…, said in Moshal Gevisser (Trademarket) Ltd v Midlands Paraffin Co. 1977 (1) SA 64 (N), GREENLAND J concluded in Washaya v Washaya 1989 (2) ZLR 195 (H)…,:

“It seems to me that where the court is satisfied that a legal practitioner has the authority of his client to consent to judgment, the client will be bound by such consent and the court will visit on the client a heavy onus before rescinding the judgment.

See Mashal (supra) and Roland & Anor v McDonnell 1986 (2) ZLR 216 (SC).”

I fully associate myself with that pronouncement and will visit the applicant with a very heavy onus in deciding whether to rescind the judgment or not.

That brings me to the affidavits of Tererai Hilary Gunje and Crosby Mashiri which were smuggled into the record under unclear circumstances.

The first respondent filed an opposing affidavit questioning why the applicant had not elicited a supporting affidavit from Martin Chasakara who consented to judgment explaining how he came to do that. This was after the applicant had failed to see the need to do so even as it was pretty obvious that the law firm of Gunje & Chasakara owed the court an explanation.

The applicant still filed an answering affidavit on 14 October 2013, without any affidavit from Martin Chasakara. In fact, that legal practitioner has not, to this date, explained the circumstances under which he acted. That on its own, raises the question of why he has shied away from these proceedings.

Instead, on 31 October 2013, an affidavit by Tererai Hilary Gunje was sneaked into the record, and, later, on 12 December 2013, an affidavit by Crosby Mashiri was filed. He is cited in this application as the third respondent but did not oppose the application. Neither did he file a supporting affidavit at the time the application was filed even though he is said to have supplied the applicant with documents earlier. In terms of Rule 235 of the High Court of Zimbabwe Rules;

“After an answering affidavit has been filed, no further affidavits may be filed without the leave of the court or a judge.”

The affidavits of Tererai Hilary Gunje and Crosby Mashiri were filed after the answering affidavit had been filed. No leave was sought and none was granted. They are therefore improperly before the court and should generally be expunged from the record.

I accept that the legal practitioner responsible for the alleged fault owed it to the court to explain what transpired and could only do so by way of an affidavit. Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa 2010 (1) ZLR 267 (S)…,.; BGM Traffic Control Systems v Minister of Transport & Ors 2009 (1) ZLR 106 (H)…,.

Tererai Hilary Gunje may have been driven by such considerations in submitting his affidavit. Sight should, however, not be lost of the fact that generally affidavits must be confined to facts which the deponent is able of his own knowledge to prove except, of course, in interlocutory motions.

As I have said, Tererai Hilary Gunje did not deal with the matter and did not sign the consent to judgment. His partner, Martin Chasakara, did.

I agree with counsel for the first respondent that Tererai Hilary Gunje's affidavit is not helpful. His affidavit is what MAKARAU JP…, referred to as “an affidavit of belief and information” in Hiltunen v Hiltunen 2008 (2) ZLR 296 (H)…, where she eminently pronounced;

“All in all, I have not been able to isolate any facts that the deponent, as a general agent of the applicant, would have personal knowledge of. I therefore find that the entire founding affidavit is hearsay and is an affidavit of belief and information. She either believes what she is saying to be correct or she has been informed and verily believes it to be correct.”

Considering all the factors that have to be taken into account, individually as well as in conjuction with one another and with the application as a whole, I am not persuaded that the applicant has discharged the onus of proving “good and sufficient cause” as required by Rule 56 for the rescission of the consent order.

It has not been satisfactorily explained why Mr Chasakara purported to represent the applicant all the way and signed a consent order on his behalf when he did not have instructions to do so. In that regard, Mr Chasakara's disappearance from the scene, without tendering an explanation to the court, cannot be ignored.

It however does not assist the applicant.

Looking at the bona fides of the application, I cannot ignore the fact that this application comes well after the applicant's jointly-owned Cranborne house was sold in execution. He only sprung into action when his princely home in Mutare was attached. Not that the applicant has any sustainable defence on the merits either. Even though he claimed, in his founding affidavit, that he never signed any surety deed, it turns out that he did and there is no conceivable reason why he should not be bound by it. His signature on the surety deed brings into operation the caveat subscriptor rule.

I had occasion, in Nyika v Moyo & Anor HB145-10..., to cite with approval the following passage in R H CHRISTIE, Business Law in Zimbabwe...,;

“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature - whether or not he has read or understood the contract…,. And this will be so even if he signed in blank…, or it is obvious to the other party that he did not read the document.”

I still stand by that proposition and should also add that the business of the courts would be extremely difficult, if not rendered nugatory, if parties were to be allowed to easily reverse battle results that would have been attained by capitulation or consent on cloudy and flimsy grounds.

In the result, the application is hereby dismissed with costs.

Sometime in February 2012 the appellant entered into an agreement of sale of a motor vehicle with the respondent. The purchase price was agreed at USD6,500=. The appellant paid USD4,800= and took delivery of the motor vehicle. The appellant defaulted in the payment of the balance of the purchase price as a result of which the respondent issued summons out of the Magistrates Court in the same year.

In response to the summons, the appellant gave consent to judgment as claimed in the summons on 10 August 2012. The appellant undertook to liquidate the debt at a rate of $400= per month. As fate would have it, the appellant failed to meet the payment terms. As a consequence, the respondent issued a writ of execution in respect of the judgment debt on 23 October 2012.

On 26 October 2012, the appellant made an ex parte application for stay of execution of the judgment. He, at the same time, filed an ex parte application for rescission of judgment. The rule nisi in respect of the two ex parte applications were apparently granted with a return date of 7 November 2012.

The record of proceedings shows that the appellant made another ex parte application for rescission of judgment and stay of execution on 3 May 2013 with a return date of 20 May 2013.

It is common cause that upon obtaining a rule nisi on 3 May 2013, the appellant did not serve it on the respondent until 17 May 2013 when he effected service. Upon such service, the respondent promptly responded on the same date raising some points in limine and opposing the confirmation of the rule nisi.

Upon hearing the parties on the return date, the presiding magistrate concluded that the application was not well founded and thus discharged the rule nisi with costs on a higher scale.

The appellant, being dissatisfied with the magistrate's decision, appealed to this court. The grounds of appeal were couched as follows:-

1. The honourable court erred in fact and at law by dismissing the appellant's application for rescission of judgment and stay of execution without even analyzing the merits of the matter, and denying the appellant the opportunity of filing an answering affidavit as this would have assisted the court a quo in arriving at a guided decision.

2. By not affording the appellant opportunity to tender his answering affidavit, the court a quo erred and the learned magistrate misdirected himself and all avenues of impartiality were closed to the appellant, rendering the whole judgment un-meritable and void.

3. The learned magistrate erred in dismissing appellant's application for rescission and allowing a judgment with an order of US$2,700= to stand despite appellant tendering evidence that the amount was US$1,700= and from that a total of US$1,400= had been paid leaving a balance of US$300= meaning that if the judgment is allowed to be executed, appellant will suffer unwarranted prejudice for a debt which has long since been settled.

4. The learned magistrate erred in failing to take into account the fact that the appellant had vowed never to have entered a consent order of the said email and such order was a fraudulent one, and even if such consent had existed, it was never registered as an order of the court.

The respondent attacked the grounds of appeal as not proper.

Counsel for the respondent contended that the supposed grounds of appeal pertained to procedural matters and such should have been brought as a review if the appellant felt the presiding magistrate had not conducted himself properly.

In the first two grounds, the appellant alleges that he was denied the opportunity to file an answering affidavit and so he was denied the right to reply. In the third ground it is really a question of disputing the sum owed, and, lastly ground 4 pertains to his denial of ever entering into a consent order referred to in an email.

In considering the above points in limine raised by respondent on the validity of the grounds of appeal, this court is of the view that whilst there is merit in the submissions, the circumstances of this case dictated that we hear the parties. The appellant, being a self actor, seemed not to understand the import of the points in limine raised. We thus decided to indulge the appellant and deal with the grounds of appeal raised.

Grounds 1 and 2

In these grounds, the appellant alleged that the presiding magistrate erred by not allowing him to file an answering affidavit.

A careful perusal of the record of proceedings shows that the appellant was given the requisite hearing. He is the one who had brought the application on an urgent basis and was duly given a return date. He then did not serve the papers on the other party till the 17^th of May 2013 for a matter to be heard on 20 May 2013.

The points that decided the fate of the case were points in limine of which he was given the opportunity to respond to. The circumstances of the points in limine were such that there was no need to analyze the merits of the case. There had to be a proper application before the magistrate for him to consider the merits.

Ground 3

Under this ground, the appellant is virtually disputing the balance of the debt and not the indebtness itself. This, on its own, would not be a ground to rescind a judgment by consent. The appellant ought to provide a good explanation of the circumstances that led to him consenting to judgment in the sum as per summons when he did not owe that much.

The application the appellant brought before the magistrate had to be in terms of the Magistrates' Court Act and the relevant Rules. In this regard, section 39 of the Magistrates' Court Act [Chapter 7:10] makes provisions for applications for rescission of judgment.

Section 39(1)(a) to (c) of the Magistrates Court Act [Chapter 7:10] states that:-

“(1) In civil cases the court may -

(a) Rescind or vary any judgment granted by it in the absence of the party against whom it was granted;

(b) Rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud of by mistake common to the parties;

(c) Correct patent errors in any judgment in respect of which no appeal is pending.”

Subsection (2) thereof states that:

“(2) The powers given in subsection (1) may only be exercised after notice by the applicant to the other party and any exercise of such power shall be subject to appeal.”

A perusal of the ex parte application for rescission made before the Magistrates Court shows that it fell foul of the above provisions. Not only was it made without notice to the other party but it was also made without averring to any of the grounds stated in subsection (a) to (c) above.

In the founding affidavit, the appellant clearly acknowledged that he had consented to the judgment and so the judgment was not in default. In this regard, paragraph 2 of the founding affidavit, wherein he stated that he entered consent to judgment, is very clear.

In paragraph 5 of the same affidavit, the appellant leaves no doubt that as at the time of the application for rescission the issue between the respondent and the owner of the motor vehicle had been resolved and the appellant was to pay to the respondent when he states that:

“The 1^st respondent filed a Notice of Set down and before the matter went for pre-trial an agreement was reached between the parties to solve the matter out of court as the respondent had solved his issues with actual owner of the vehicle and it was agreed that the applicant will pay the respondent and get the registration book of the vehicle, which was to be handed over to the respondent's legal practitioners and that the applicant will liquidate the debt in monthly instalments of USD400= until cleared inclusive of agreed legal costs.”

The applicant does not state that the judgment was void ab origine or was obtained by fraud or by mistake common to the parties and so subrule (b) above in not the one relied upon.

In Georgias & Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S), the court held that:-

“When considering an application for rescission of a judgment entered by consent, the court should have regard to:

(1) The reasonableness of the explanation proffered by the applicant of the circumstances in which the consent judgement was entered;

(2) The bona fides of the application;

(3) The bona fides of the defence on the merits of the case which prima facie carries some prospect of success. A balance of probability need not be established.

Too much emphasis should not be placed on any of these factors. They must be viewed in conjunction with each other and with the application as a whole. An unsatisfactory explanation may be strengthened by a very strong defence on the merits. In general terms, what an applicant must show is something which entitles him to ask for the indulgence of the court.”

In casu, in one breath, the appellant admits giving consent to judgment and in another breath denies consenting to judgment. The appellant could not explain away the consent to judgment he signed and his own admission as contained in paragraphs 2 and 5 of his founding affidavit.

Clearly, the appellant is not being truthful.

The lack of a cogent explanation as to why the consent judgment should be rescinded show a lack of bona fides in the application.

The appellant could also not proffer a plausible defence.

It is apparent that the real issue is a dispute on the outstanding balance. It may also be noted that Consent to Judgment signed by both parties and filed at Marondera Magistrates Court on 6 March 2013 shows the total debt of USD2,700=. That debt comprised $1,700= as capital debt and $1,000= for legal costs as at that date. That consent to judgement states that:

“1 The defendant is liable to plaintiff in the capital amount of US$1,700=.

2. The defendant is liable for plaintiff's costs of suit to date amounting to US$1,000=.

3. The parties agree that judgment be entered accordingly.

4. The defendant hereby undertakes to settle the capital amount and legal costs amounting to US$2,700= by monthly instalments of US$500= with effect from the 5^th April 2013 and thereafter on the 5^th day of each and every subsequent month until the debt is paid in full.”

On 6 March 2013 the above was granted by the court.

In fulfilment of his obligation, as outlined above, on 23 April 2013, the appellant deposited a sum of US$400= into the respondent's bank account. On 24 April he filed with court a notice stating that:

“Be pleased to take notice that the defendant hereby files attached receipt as proof of April 2013 payment of US$400= made into plaintiff's account as per consent order entered between the parties.”

The above scenario puts paid to the above ground of appeal. I am thus of the view that the appeal has no merit at all….,.

Accordingly, the appeal is hereby dismissed with costs on the general scale.

At a pre-trial conference held on 19 October 2012 the parties agreed that:-

1….,.

2. Subject to provisions of paragraph 2.1 below, the plaintiff shall be solely responsible for the payment of school fees in respect of all the minor children, namely:-

(a) E, born on the 4^th June 1996;

(b) F, born on the 22^nd September, 1998;

(c) G, born on the 25^th September 2002; and

(d) H, born on the 7^th February, 2005.

2.1 The school fees payable by the plaintiff shall be pegged to fees charged at the Dominican Convent, Harare, at any given time.

2.2. In the event that the children are enrolled at a school whose fees exceed those of Dominican Convent, Harare, the defendant shall be responsible for such excess.

3…..,.

4….,.

Unfortunately, as at the time of trial, the plaintiff had not been complying with some of the agreed terms.

Under cross-examination, the plaintiff conceded that he was bound by the rate of payment for the children's education as agreed at the pre- trial conference which was pegged at the fees charged by Dominican Convent in Harare. He thus should comply with this by reimbursing the defendant all the amounts she paid which were for his account from the date of the pretrial conference as per their agreement….,.

1….,.

2….,.

3….,.

3.1….,.

3.2….,.

3.3 The plaintiff is hereby ordered to comply with the above order on payment of school fees by reimbursing defendant all the amounts she paid which were for his account as from the date of the pretrial conference when such agreement was reached. Such reimbursement shall be at the rate of 1,000 United States dollars per month with effect from 31^st March 2015 if such has not already commenced.