Secondly,
counsel for the applicants took the point that as this court had pronounced
itself in the judgment of the 24th September 2009, this court was
functus officio.
The
first issue to resolve is whether this court is properly seized with this
matter.
As
I pointed out in my directive to the first respondent's legal practitioners,
the allegation of fraud was directed at the judgment obtained before me. It is
a serious matter for one party to make against another, especially where both
parties are represented by counsel. Can this court rescind its own judgment
without falling foul of the Rules of Court? In other words, when can a court
grant rescission of a judgment?
Counsel
for the applicants submitted that once this court pronounced itself on the
matters before it on 24 September 2009, it became functus officio. As such,
there is no basis, at law, upon which it could consider itself properly seized
with the matter. Counsel for the applicants needed no authority for this trite
position.
It
is well-established in our law that once a court has duly pronounced a final
judgment, it becomes functus officio; its jurisdiction in the case having been
fully and finally exercised its authority over the subject matter ceases. Firestone
SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298…,.; Chirambasukwa v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) ZLR 567 (SC).
On
the other hand, counsel for the first respondent urged the court to find that
there is ample basis, under common law, permitting the court to exercise its
inherent jurisdiction in addition to the Rules. Rule 449(1) of the High Court
Rules provides -
“449(1)
The court or a judge may, in addition to
any other power it or he may have, mero motu or upon the application of any
party affected, correct, rescind, or vary any judgment or order-
(a)
That was erroneously sought or erroneously granted in the absence of any party
affected thereby; or
(b)
In which there is an ambiguity or patent error or omission, but only to the
extent of such ambiguity, error or omission; or
(c)
That was granted as the result of a mistake common to the parties.”…,.
In
terms of the common law, the court has power to rescind a judgment obtained by
default of appearance provided that sufficient cause has been shown. In respect
of rescission of judgment in terms of the Rules, it has been held that this is
a matter for the discretion of the court, which discretion should be exercised
judicially. Where willful default was found it has been held that there was no
room for the exercise of this discretion but this approach has been questioned
and the better view seems to be that willful default or gross negligence on the
part of the applicant constitutes no absolute bar to the grant of the
indulgence of rescission but that it is a factor, although a weighty one, to be
considered in the broad conspectus of the application which is to be taken into
account together with the merits of the defence raised to the plaintiff's
claim, in the determination of whether good cause for rescission has been
shown. De Witts Auto Body Repairs
(Pty) Ltd v Fedgen Insurance Co Ltd 1994
(4) SA 705…,; HEBSTEIN & VAN WINSEN 4th Edition…,.
In
De Wet & Others v Western Bank Ltd 1977
(4) 770 (T) it was held…., inter alia, that -
“Before
a judgment would be set aside under the common law, an applicant would have to
establish a ground on which restitutio in integrum would be granted by our law
such as fraud or justus error in circumstances.; Childerley Estate Stores v
Standard Bank of SA Ltd 1924 OPD 163 at pp166-168; Semme v
Incorporated Law Society 1933 (1) TPD 213 at p215; Makins v Makins 1958 (1) SA
338 (AD) at p343 Athanassiou v Schultz 1956
(4) SA 357 (W). It would appear that the procedure to set aside a judgment
on grounds justifying restitutio in integrum is by way of action.”
The
position set out above recognizes the finality of a judgment once delivered or
issued (vide, Estate Garlick v The Commissioner of Inland Revenue 1934 AD 499…,.)
Under
the common law, a judgment can be altered or set aside only under limited
circumstances.
In
Stumbles & Rowe v Mattinson; Mattinson v Stephens & Others 1989 (1) ZLR 172 GREENLAND J had
occasion to consider whether this court can set aside its own interlocutory
orders. He held that while the court normally does not have jurisdiction to
temper or interfere with its own judgments, because in relation thereto, it is functus
officio, it does have jurisdiction over orders made in interlocutory and
procedural matters. He held further that in terms of this jurisdiction, the
court has powers to set aside such orders on good and sufficient reasons,
including the fact that the basis of the order has been destroyed or shown to
be non-existent. At page 178 he stated -
“This
is particularly so when the matter is interlocutory, (per SQUIRES J in Sayprint
Textiles v Girdlestone 1983 (2) ZLR
322). It is also so where the matter is procedural; (per STRATFORD JA in Ex parte Barclays Bank 1936 AD 431). I support the
propositions that the court is entitled to regulate its own Rules. It is trite
that the Rules are intended to expedite procedure and relief. To insist that
the court is bound by a procedural order which it knows to be fatally defective
is to insist on the court conducting a sham trial. It is illogical, senseless
unjust and unreasonable to say to a litigant, “We will proceed with this
expensive and protracted exercise, which is a trial and you can start all over
again when the Supreme Court rightly sets aside the proceedings because of this
fatal procedural defect.”
He
goes on to make a very clear distinction between interlocutory matters and
those in which final orders are made and observed that the distinguishing
feature is that in final orders and judgments, the matter takes on the
character of res judicata, the
essence of which is that the issue, having been fairly contested by the parties, is finally resolved. It seems to
me that, by extension, it cannot be said that a matter was fairly contested
when the party resorted to concealing relevant information from the court in
what may amount to fraud. Where, therefore, a party could show such fraudulent
concealment of information relevant to the determination of the issue to be
decided then the court should, under its common law discretion, exercise its
powers and grant rescission.
In
Harare Sports Club & Another v United Bottlers Ltd 2000 (1) ZLR 264…, GILLESPIE J took up the discussion on
the discretionary powers of the court in respect of rescission at common law
thus -
“The
perceived strictures of this common law were seen as abated by Rules of Court.
These permit the rescission of default judgment 'on good and sufficient cause';
the rescission, variation or correction of judgments or orders for error and
the rescission of judgments entered in terms of a written consent for 'good and
sufficient cause'. The Rules (especially Rule 56 and Rule 63) were seen as
relaxing the common law. Our law, however, is not aptly a casuistic set of
rules and exceptions but rather a just and logical application of principle. It
is therefore not surprising, and most to be welcomed, that this rigid and
brittle view of this area of the law has been reconsidered. It is now
recognised that the complicated Rules may be explained in principle and that
the principle is by no means as intractable as was defined earlier in the last
century.
Thus,
where the judgment sought to be rescinded was given in default, no question of
a final judgment having been given on the merits can arise. Hence, no
considerations of functus officio or res judicata apply to thwart an
application for rescission. In such a case, even at common law, it is
recognised that the court has a very broad discretion to rescind (on sufficient
cause shown) a judgment given by default.
Even
where judgment is given in the presence of the parties, and where the merits of
the cause are considered, the court still retains a power to rescind that
judgment. The power in this case would be more sparingly exercised since final
judgment would be res judicata as between the parties and would appear to be a
complete discharge of the court's office. On
principle, however, justice demands that a final discharge tainted by fraud
should not be permitted to stand. The other traditionally recognised exceptions are also explained on the
basis that policy prefers to regard a judgment procured in some circumstances
of ignorance of relevant documents to the contrary (for example) as not
constituting a final discharge of the court's function. Further instances where
the court is not held to be functus officio are those specified in Rule 449. As
has been said in connection with the counterpart in South Africa of this Rule,
this Rule -
'Sets
out exceptions to the general principle that a final order, correctly
expressing the true decision of the court cannot be altered by the court…,; the
court has a general discretion whether or not to grant an application for
rescission under Rule 42(1).'
The
apparently ill-assorted, eclectic instances gathered under that Rule do share
the common thread that in each case there are sound policy reasons,
counteracting any suggestion of functus officio, for recognising a court's
discretion to revisit its order. The Rule does not provide statutory exceptions
to, but has been said to codify (or perhaps better consolidate) the common
law.”
I
respectfully associate myself with these sentiments.
Whilst
the common law rule regarding rescission of orders in interlocutory matters is
settled as having been trammeled by the Rules, the position regarding
rescission of final judgments is that it can only be permissible in
circumstances where a party could establish a ground for restitutio in integrum such as fraud or justus error.
I
am satisfied that, in casu, the first respondent has discharged the onus in
that regard. Consequently, I find that this matter is properly before me.
The line of authorities which caution against
revisiting one's judgment proceed on the basis that the final judgment has been
fairly obtained. I doubt whether in cases where there is strong evidence that
judgment was not properly procured theses authorities would maintain the same
position. I express no views on this but leave the question open as to what
constitutes a fairly procured judgment. One that was obtained by fraud or some
such malfeasance cannot qualify to be treated as having been fairly obtained.