The appellant in this case applied, before the High Court,
for an order declaring one January Tauro, Elizabeth Tauro (the current
respondent), and Fransisco Tauro, to be in contempt of court, and, as a
consequence, that they be committed to prison until such time as they would
have purged their contempt.
The court a quo was of the view that the default judgment
that formed the basis of the order for the ejectment of the respondents had
been made in error. Consequently, the court determined that this was a proper
case for the setting aside of the default judgment and the order of ejectment
issued consequent thereto.
It is against that order that the appellant has now
appealed to this Court.
In October 1999, the appellant entered into an Agreement of
Sale for the purchase of Stand Number 2198 Chinamano/Maseko, Epworth for a
specified sum of money. The Agreement of Sale read:
“I, Francisco Tauro, 63-649379 E63, have sold my Stand 2198
B Epworth Maseko to Austin Munyimi (68-012753 E68) for $17,000=.”
The Agreement was signed by both Fransico Tauro and the
appellant. January Tauro and two other persons signed as witnesses to the sale
transaction.
On 8 November 2004, the appellant issued summons against
January Tauro and the Epworth Local Board seeking an order compelling January
Tauro to cede his rights and interest in the Stand in question and for the
Local Board to approve the cession.
January Tauro did not defend the action. As a result, the
appellant applied for a default judgment which was then granted on 13 July
2005.
This is the default judgment that forms the subject of this
appeal.
In November 2006, the Stand was ceded to the appellant.
Following the grant of the default judgment, the appellant applied for the
eviction of January Tauro and all those claiming rights through him. On 30
October 2008, January Tauro and other persons residing on the Stand in question
were evicted and vacant possession given to the appellant. However, almost
immediately thereafter, the current respondent, and others, made their way back
into the house as a result of which the appellant filed an application for an
order declaring the respondents to be in contempt of court and for them to be
sent to prison until they purged their contempt.
At the hearing of the application, the court a quo noticed
what appeared to be anomalies between the pleadings and the Agreement of Sale
that formed the basis of the action. In particular, the court was concerned
that although the Seller was reflected in the Agreement as Fransisco Tauro and
that January Tauro had only signed as a witness, the declaration reflected the Seller
as January Tauro and no reference had been made at all to Franscisco Tauro who
is reflected as the Seller of the property in the Agreement of Sale. Consequently,
the court reached the conclusion that the default judgment granted by OMERJEE J
had been granted in error and for that reason set aside both that judgment and
the order of eviction in terms of Rule 449 of the High Court Rules.
The appellant has attacked the determination on the basis
that:-
“1. The Learned Judge a quo erred in making a finding that
the Judgment issued by the Honourable Justice Omarjee in Case No. HC11920/04
was granted in error and liable to be set aside, and on this basis consequently
setting aside the order granted by the Honourable Justice Guvava in Case No. HC2995/07
in that:
1.1 In both the Summons and Declaration and Application for
Default Judgment in Case No. HC11920/04 the full facts of the matter upon which
the relief sought was founded were disclosed; and
1.2 The Honourable Justice Omerjee granted the judgment in
Case No. HC.11920/04 with the full knowledge of such facts.
2. Further, and in the alternative, the Court a quo erred
in that the matter was not properly dealt with in terms of Rule 449 of the Rules
of the High Court in that:
2.1 No Application had been made by the Respondent in terms
of the provisions of the Rule; and
2.2 In any event, it was inappropriate for the court a quo to act in terms of Rule 449
simply because it came to a different conclusion on the papers from the same
Court in Case No. HC 11920/04.”
In his prayer, the appellant seeks an order setting aside
the order of the court a quo and substituting it with an order that the
respondent be held to have been in contempt of court and that she be committed
to prison.
It is apparent from the record that at the time Justice
OMERJEE granted the default judgment the Agreement of Sale in question was
attached to the request papers. Indeed, in his heads of argument, the appellant
accepts that the Agreement of Sale was part of the papers placed before the
judge.
That the Agreement was attached to the papers placed before
the judge is pertinent for reasons that follow shortly.
In his submissions before the court, the appellant has
argued that no error was made at the time the default judgment was granted. The
court a quo did not make a finding that before the default judgment was granted
Justice OMERJEE had been made aware of the interests of Franscisco Tauro but
had nevertheless proceeded regardless of her interests in the matter. He
further argued that the purpose of Rule 449 is not to introduce a vehicle
through which new issues and new parties are included in existing proceedings
before a court.
Rule 449 of the High Court Rules provides, in relevant
part:-
“449. Correction, variation and rescission of judgments and orders
(1) The court or a judge may, in addition to any other
power it or he may have, mero motu or upon the application of any party
affected, correct, rescind, or vary any judgment or order –
(a) That was erroneously sought or erroneously granted in
the absence of any party affected thereby; or
(b)…,.
(c)…,.”
It is a general principle of our law that once a final
order is made, correctly reflecting the true intention of the court, that order
cannot be altered by that court. Rule 449 is an exception to that principle and
allows a court to revisit a decision it has previously made - but only in a
restricted sense.
Where a court is empowered to revisit its previous
decision, it is not, generally speaking, confined to the record of the proceedings
in deciding whether a judgment was erroneously granted. The specific reference
in Rule 449 to a judgment or order granted “in the absence of any party
affected thereby” envisages a situation where such a party may be able to place
facts before the latter court, which facts would not have been before the court
that granted the order in the first place – see Grantually (Pvt) Ltd & Anor
v UDC Ltd 2000 (1) ZLR 361 (S)….,.
Further, it is also established that once a court holds
that a judgment or order was erroneously granted in the absence of a party
affected, it may correct, rescind or vary such without further inquiry. There
is no requirement that an applicant seeking relief under Rule 449 must show
“good cause” – Grantually (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S)….,;
Banda v Pitluk 1993 (2) ZLR 60 (H)…,; Mutebwa v Mutebwa & Anor 2001 (2) SA
193, 199 I-J and 200 A-B.
The position may now be accepted as correct that a
distinction should be drawn between a case where a court mero motu decides to
rescind or vary an order and one where such an order is sought on the basis of
an application. In this connection, I would agree with the remarks of JAFTA J
in Mutebwa v Mutebwa & Anor 2001 (2) SA…, that:
“…, the error should appear on the record but only in cases
where the Court acts mero motu or on the basis of an oral application made from
the Bar for rescission or variation of the order. For obvious reasons, in such
cases the Court would have before it the record of the proceedings only. The
same interpretation cannot, in my respectful view, apply to cases where the
Court is called upon to act on the basis of a written application by a party
whose rights are affected by an order granted in its absence. In the latter
instance the Court would have before it not only the record of the proceedings
but also facts set out in the affidavits filed of record. Such facts cannot
simply be ignored and it is not irregular to adopt such a procedure in seeking
rescission. In fact, it might be necessary to do so in cases such as the
present, where no error could be picked up ex facie the record itself. In my
view, the failure to show that the error appears on the record of the
proceedings before KRUGER AJ cannot constitute a bar to the applicant being
successful under Rule 42(1)(a). It is
not a requirement of the Rule that the error appear on the record before
rescission can be granted. Therefore, I do not, with respect, agree with ERASMUS
J's conclusion that the Rule requires the applicant to prove the existence of
an error appearing on the record and that the Court considering rescission is,
like an appeal Court, confined to the record of the proceedings.
The Rule reads as follows:
'42(1) The Court may, in addition to any other powers it
may have, mero motu or upon the application of any party affected, rescind or
vary –
(a) An order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby…,.'
There is nothing in the language used in the Rule which
indicates that the error must appear on the record of the proceedings before
the power conferred could be exercised. The contention that the Rule is
confined to cases where the error appears on the record cannot, in my opinion,
be correct. Such an interpretation places an unwarranted limitation on the
scope of the Rule. Decided cases show that relief may be granted under this
Rule if:
(i) The Court which made the order lacked competence to do
so;
(ii) At the time the order was made the Court was unaware
of facts which, if then known to it, would have precluded the granting of the
order; or
(iii) There was an irregularity in the proceedings.
See Promedia Drukkers & Uitgewers (Edms) Bpk v
Kaimowitz and Others 1996 (4) SA 411 (C) at 417G-I and the authorities referred
to therein.”
In summary, therefore, the position would seem to be
settled that where a court or judge acts mero motu and decides to correct,
rescind or vary any judgment or order, such court or judge is confined to the
record of the proceedings and such error should appear ex facie such record.
The court or judge cannot take into account other facts or circumstances that
do not arise from the record itself or facts which become known later but which
would not have been placed before the court whose order is sought to be varied
or rescinded.
What amounts to an error has also been the subject of a
number of decisions.
In Banda v Pitluk 1993 (2) ZLR 60 (H), a default judgment
granted against an applicant who had filed an appearance to defend court but
which appearance had not been brought to the attention of the judge entering
the default judgment was held to be an error on the part of the court. In Mutebwa
v Mutebwa & Anor 2001 (2) SA, a false return of service was filed by the
Deputy Sheriff indicating that service had been effected personally when in
fact no such service had been effected resulting in an order being made. The
court had no difficulty in coming to the conclusion that the order had been
erroneously granted in the sense that had the judge been aware that the summons
had not been served on the applicant he would not have granted it. In Banda v
Pitluk 1993 (2) ZLR 60 (H), the possible failure on the part of the judge
before whom the application for default judgment was placed “in failing to
observe the notice of appearance to defend contained in the court rule” was
held to constitute an error.
In the present matter, the papers placed before OMERJEE J
clearly pointed to a discrepancy. The cause of action in the declaration was
the Agreement of Sale between the appellant and one January Tauro. The Agreement attached in support of that
claim was an Agreement signed between the appellant and Franscisco Tauro with
January Tauro signing as a witness. Nowhere in the declaration is an attempt
made to explain how this discrepancy had come about or why Franscisco Tauro,
who had signed as a Seller had not been cited or why January Tauro, who had
been cited as the Seller in the papers had signed as a witness. Had JUDGE
OMERJEE been aware of these obvious discrepancies in the papers before him, he
would not, in all probability, have granted a default judgment against January
Tauro when the sale of agreement clearly indicated the Seller to have been
Fransisco Tauro. Had JUDGE OMERJEE been aware of these facts it is highly unlikely
that he would have found it permissible or competent to make an order against a
party that had signed the agreement simply as a witness. Indeed, the court a
quo correctly captured the difficulty when it remarked at page 4 of the
cyclostyled judgment:
“Turning to the first issue, it is my view that the cause
of action in the main matter was a purported agreement between the applicant
and the 1st respondent. This agreement was supported by a written
agreement between the applicant and the 3rd respondent. The
agreement furnished does not disclose that the 1st respondent had
any rights and interest in the property. Nowhere in the pleadings, either in
the main action or in the application for default judgment did the applicant
allude to any other legal basis why it contended that the 1st
respondent had any interest or right in the property. The 1st
respondent's interest that appears on the sale agreement between the applicant
and the 3rd respondent is that of a person merely witnessing the
conclusion of the agreement. I am of the view that reliance on the agreement
between the applicant and the 3rd respondent in support of a
purported agreement between the applicant and the 1st respondent, in
fact, amounts to deceit not only by the applicant but also by his legal
practitioners.”
I agree with these remarks. The court a quo was correct in
coming to the conclusion that the default judgment had been granted in error
and that it had to be set aside….,.
The appeal must therefore fail.
The appeal is accordingly dismissed with costs.
