RAINBOW TOURISM GROUP LTD v CLOVEGATE ELEVATORS

HIGH COURT, HARARE

[Opposed Application HH 616-16]

October 19, 2016

CHIWESHE JP

Practice and procedure – Judgment – Rescission – Judgment granted “in error” in absence of party affected – What error will justify rescission – “Patent” error – What is.

Held, that once an order or judgment is pronounced, the court becomes functus officio and cannot ordinarily revisit the case to correct any perceived errors. Where the terms of the judgment are clear and unambiguous and there is no patent error or omission to be found therein, there can be no basis for a court revisiting its judgment. A “patent” error or omission is an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it.

Held, further, that provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement the judgment or order in one or more of the following situations:

(i) in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the court overlooked or inadvertently omitted to grant;

(ii) to clarify the judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order;

(iii) to correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense of substance;

(iv) where counsel has argued the merits and not the costs of a case, but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.

Held, further, that for the purposes of an application made under
O 49 r 449 (1)(a) of the High Court Rules, 1971, it is irrelevant whether the reasoning of the court in arriving at the judgment or order is sound or unsound. What is important is that the order was made and that it reflects the intention of the judge giving it.

Cases cited:

Banda v Pitluk 1993 (2) ZLR 60 (H), not followed

First Consolidated Leasing Corporation Ltd v Theron and Others 1974 (4) SA 244 (T), referred to

Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C), applied

Theron NO v United Democratic Front (Western Cape Region) and Others 1984 (2) SA 532 (C), not followed

Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 1 r 4C, O 9 r 63,
O 32 rr 236 (3), (3)(b), 241, 241 (1), 242 (1), O 49 r 449, 449 (1)(a), First Schedule Forms 29, 29B

D Tivadar, for the applicant

S Hashiti, for the respondent

CHIWESHE JP:

The applicant seeks an order setting aside the judgment of my sister Chigumba J, granted in favour of the respondent on 8 April 2014 under case number HC 2626/14 on the grounds that it was granted in error. The judge’s order in that case reads:

“IT IS ORDERED THAT:

1. The respondent’s application filed under case number 9739/13 be and is hereby dismissed.

2. The costs of this application shall be paid by the respondent.”

The present applicant was the respondent in that case and the present respondent, the applicant. For the purposes of this judgment the parties will be referred to as presently cited.

The applicant’s founding affidavit is sworn to by Tapiwa Mari, its legal assistant. It is to the following effect:

On 2 June 2014, the applicant’s legal practitioners received from the respondent’s legal practitioners copy of an order of this Court issued on 8 April 2014. Attached to the order was a letter from the respondent’s legal practitioners dated 30 May 2014. The letter which is filed of record as annexure A reads as follows:

“We refer to the above matter and to previous correspondence.

In view of the amount of time that it has taken our respective clients before convening a round table conference as previously suggested, our client now takes the view that instead of prolonging the resolution of this matter any further, your clients may forward to us their proposals on how they suggest to have this matter amicably resolved.

Accordingly, we hereby request that you furnish us with your client’s proposals for consideration by ours within the next 48 hours. Our clients will then furnish you with their position in relation to your proposals immediately thereafter. We therefore await hearing from you in that regard without any delay.

Meanwhile, it has been brought to our attention that the High Court of Zimbabwe has dismissed your client’s application for the reinstatement of their defence. We attach hereto a self-explanatory court order in that regard. We therefore advised accordingly.”

The background facts, according to the applicant, are these: The applicant filed an application for the reinstatement of its defence in case number HC 5312/13, the main matter. It did so on 15 November 2013 under case number HC 9739/13. The respondent filed its opposing papers on 29 November 2013. In terms of the High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”) the applicant should have filed its answering affidavit or set down the matter for hearing within 30 days from the date that the respondent filed its opposing papers. The applicant did not comply with that requirement. As a result, the respondent filed a chamber application for the dismissal of the application for want of prosecution. It did so on 28 March 2014 under case number HC 2626/14.

The applicant filed opposing papers to the chamber application for dismissal on 11 April 2014. It also filed on the same date heads of argument in case number HC 9739/13 and applied for a set down date of that matter. The applicant did so unaware that the respondent’s application for dismissal under case number HC 2626/14 had been granted by Chigumba J on 8 April 2014. It only became aware of this fact on receipt of the respondent’s letter filed of record as annexure A.

The applicant avers that the application for dismissal was granted in error as it had not been afforded the opportunity to make representations before the order was granted. For that reason, the applicant contends that, where an order is granted in error in the absence of the other party, an application for rescission of that order can be made in terms of O 49 r 449 of the Rules. In any event, argues the applicant, it was not in wilful default and it has an arguable case on the merits. Moreover, the parties had been engaged in discussions in an attempt to settle out of court. In a rather contradictory assertion the applicant further states as follows:

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