CHATUKUTA J: The applicant seeks an
order for the ejectment of the respondent and any other person in occupation through
him, from Stand 1741 Unit A, Seke, Chitungwiza (the property) and costs on a
higher scale.
The background to the application is
that on 6 November 2001 the respondent purchased the property from one Gloria
Madzorera. The respondent instituted
proceedings in case No. HC 2793/02 for an order to compel Gloria to cede her
interests and rights in the property into his name. The application was granted
in default on 19 June 2002. The rights
and interests of the late Tafirenyika Madzorera in the property were duly ceded
into his name.
On 9 August 2002 and in case No. HC 6518/02,
Gloria Madzorera filed an application for the rescission of the order granted
under case No HC 2793/02. The
application was opposed. Although Gloria
Madzorera filed an answering affidavit and heads of argument, the matter was
never set down for hearing at the instance of either party.
However, the property belonged to
and was registered in the name of Tafirenyika Madzorera. Tafirenyika had died on 13 August 2000 before
the sale of the property to the respondent.
Tafirenyika's estate was registered with the Master of the High Court
and on 31 July 2003. The applicant was
appointed executrix dative of Tafirenyika's estate.
On 6 January 2005, the applicant filed an application in case No. HC
59/05 seeking an order for the rescission of the judgment in case No. HC
6518/02 in terms of r449 of the High
Court Rules, 1971. The basis of the
application was that the property belonged to the estate of the Late
Tafirenyika and that Gloria did not have the authority of the Master to dispose
of that property. It was contended that
the court had erroneously granted the order for cession because it was not
aware at the time that the property belonged to a deceased estate. The application was granted on 9 March 2005
in default of the respondent.
On 4 May 2005, the respondent filed
an urgent chamber application and was on 10 May 2005 granted an interim interdict
restraining the applicant from registering the property back into the name of the
estate or into the name of any third party or advertising the sale of rights
and interests in the property. The
respondent was ordered to file an application for rescission within seven days
of the interim order.
The respondent filed the application
for rescission on 15 August 2005 in case No. HC 3953/05. The basis for the application was that the
order granted in case No. HC 59/05 did not set aside the order granted in his
favour in case No. HC 2793/02. The
applicant could not therefore reverse the cession because the order was
extant. The respondent further contended
that the applicant did not have the locus
standi to have sought the rescission of case No. HC 2793/02 because she had
not been a party to that case.
It appears the application was argued
by both parties and was dismissed. Following the dismissal of the application,
the respondent refused to vacate the property.
He insisted in a letter from his legal practitioners of instant and dated
30 November 2007, that case No. HC 2793/02 which granted him the right to have
the property ceded into his name had not been set aside by the order in case
No. HC 59/05. He stated that there were
two conflicting orders and that the order in case No. 2793/02 took
precedent. The applicant then filed the
present application because of the respondent's resistance to vacate the
property.
The order in case No. HC 59/05 reads
as follows:
“IT
IS ORDERED THAT:
1.
That application succeeds with costs.
2.
That the court order under case No.
6518/02 be and is hereby set aside.
3.
That third Respondent is directed to
set aside the said cession and re-register the rights and interests in Stand
1741 Unit “A”, Seke, Chitungwiza to the Estate Late Charles Tafirenyika
Madzorera.
Arising from the above background,
it is the applicant's contention that the order clearly reversed any gains that
the respondent had obtained in case No. HC 2793/02. It was also clear that there was an error in case
No. HC 59/05. It was contended that the
error does not detract from the fact the court ordered the reversal of the
cession of rights and interests in the property back into the name of the
estate of the Late Tafirenyika Madzorera.
The respondent's application for rescission of judgment (case No. HC 3953/05)
was dismissed and therefore the applicant had the right, on behalf of the
estate to seek for the respondent's ejectment from the property.
The applicant further submitted that
reference referred to a non existent order of court was an apparent error. She applied for an order in terms of r 449 correcting the order so that it
reflected the correct case number for the order that was set aside.
The respondent raised the same
arguments it raised in the application for rescission in case No. HC 3953/05
which was dismissed. He contended that
the order in HC 2793/02 was not rescinded and therefore was extant. He further argued that the court had
erroneously granted an order to the applicant who had not been a party to case
No. HC 2793/02. The respondent opposed the application to
correct the order in case No. HC 59/05 arguing that the court could not correct
the order in the absence of the reasons for the dismissal of the application in
case No HC 3953/05.
It appears to me to that there are basically
two issues. The first issue is the
effect of the dismissal of the respondent's application for rescission in case
No. HC 3953/05. The second issue is
whether or not I should grant the application to correct the order granted in
case No HC 59/05.
The effect of the dismissal of the
application in case No. HC 3953/05 is in my view, that the order in case No. HC
59/05 reversing the cession into the respondent's name remained extant. I am of the view that the reasons for
judgment are necessary only in so far as a court is required to determine the
correctness of an order arrived at. I am
not being asked to consider the correctness of the order in case No HC
3953/05. It is not competent for me to
even consider that case given that it is an order of this court. Such consideration would amount to a review
of this court's own decision. I
therefore do not believe it is competent for me to consider the submissions
raised by the respondent which were raised in his application for rescission in
case no HC 3935/05.
It is not in issue that the order set
aside a non-existent order. However, it further provides for the reversal of
the cession from the respondent's name back into that of the estate of the late
Tafirenyika Madzorera. It is the effect
of this latter part of the order that the respondent unsuccessfully sought to
reverse in his application for rescission.
It appears to me that the application for rescission was itself an
acknowledgment of the fact that the order in case No. HC 59/05 deprived the respondent
of his rights granted in the order in case No. HC 2793/02. Had
there been no such realisation and acknowledgment of the effect of the order,
the respondent would not have deemed it necessary to apply for the rescission
of the order. It is my view that the
order in case no HC 59/05 for the reversal of the cession from the respondent's
name into the name of the estate therefore still stands and the applicant is
entitled to the order that she seeks.
I now turn to the application to
correct the order in case No. HC 59/05. I
am of the view that it is competent for me to consider the correction of the
order in terms of r 449. R
449 (1)(b) allows the court to mero motu or upon the application of
any party affected to correct any judgment or order in which there is an
ambiguity or a patent error or omission, “but only to the extent of such
ambiguity, error or omission”. The
exercise of this discretion is only permitted to the extent that after the
correction, the order should reflect the intention of the judge. Such an intention is derived from the
pleadings before the court which made the decision. (See First
National Bank of Southern Africa Ltd v van Rensburg No and Others: in re First
National Bank of Southern Africa Ltd v Jurgens and Ors 1994 (1) SA 677
(T) 681 A-C, First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA
606 (T) at 608E - F; Seatle v Protea
Assurance Co Ltd 1984 (2) SA 537 (C) at 541C; Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C) at 179H - 180D;
First National Bank of South Africa Ltd v
Jurgens and Others 1993 (1) SA 245 (W) at 246E - G; Laduma Financial Services v De la Bat NO en Andere 1999 (4) SA 1283
(O) at 1286F - 1287E and Adonis v
Additional Magistrate, Bellville, and Ors 2007 (2) SA 147 (C) 153 paragraph
17.)
The fact that the reasons for the
dismissal of the application in case No HC 3953/05 for the rescission of case
No. HC 59/05 are not available is in my view, for the reasons stated above,
irrelevant. The respondent was given
the opportunity to address the court and failed to advance any meaningful
submission.
As rightly submitted by Mr. Musimbe, the reference to case no HC
6518/02 seems to have been an error. In
paragraph 7 of the applicant's founding affidavit in case No. HC 59/05, the
applicant stated as follows:
“First
Respondent obtained an order compelling Second and Third Respondent's (sic) to have cession of the
above-mentioned property effected to him, which order was granted under Case
No. 6518/02 (sic) in default.”
As already indicated, it is
common cause that case No. HC 6518/02 was not prosecuted to its conclusion and
no order was issued by the court in that case.
It is also common cause that the
applicant however, intended to have the order that had empowered the respondent
to cede the property into his name rescinded.
The respondent obtained that order in case No. HC 2793/02. The fact that the court was setting aside a
non existent order was therefore clearly a patent error. I do not believe that was the intention of
the court. The error arose from the
applicant's pleadings, but was none the less an error that the court would not
have intended to perpetuate. In the
result, the applicant must succeed in having the order corrected to reflect the
intention of the court.
The applicant claimed costs on
a legal practitioner and client scale on the basis that the respondent sought
to delay the finality of litigation. I am in agreement with the applicant. The respondent was aware of the dismissal of his
application for rescission in case no HC 3953/05. The applicant had the courtesy of giving him
notice to vacate the property. The
respondent chose not to vacate the property but responded by letter dated 30 November
2007. The respondent could not wish away
the judgment in case No HC 3953/05 with a letter restating the same position he
had advanced in the case that he lost. The
conduct of the respondent was a clear disregard of the order dismissing the
application for the rescission of case No. HC 59/05. That order remained extant with its defect
and the only course of action for the respondent would have been to further
challenge the order of dismissal. It did
not. By resisting eviction, the
respondent caused the applicant to incur unnecessary expenses in initiating and
prosecuting the present application. The
court must therefore express its displeasure at the respondent's conduct by
making an appropriate order of costs on a higher scale.
In the result, it is ordered that:
1. The order in case No HC. 59/05 be and
is hereby corrected by the deletion of “case No. 6518/02” and substitution with
“case No. HC 2793/02” such that paragraph 2 of the order reads as follows:
“2. The
Court Order under case No. HC 2793/02 be and is hereby set aside.”
2.
The
respondent, and any person claiming occupation through him, be and is hereby
ordered to vacate Stand 1741 Unit A, Seke, Chitungwiza within 14 days of the
date of service of this order, failing which the Deputy Sheriff be and is
hereby authorised to eject him and any person claiming occupation through him
from the property.
3.
The
respondent be and is hereby ordered to pay costs of this application on a legal
practitioner and client scale.
IEG Musimbe, applicant's legal practitioners
Messrs Uriri, respondent's legal practitioners
