[Court Application HH 129-17]

January 16, 2017 and March 2, 2017


Practice and procedure – Rescission of judgment – Application for – Whether can be brought where order to be rescinded is before Supreme Court on appeal.

A judgment had been granted in proceedings in which applicant was not a party and had been appealed. Applicant took the position that a paragraph in the judgment affected it and had for that reason been granted in error in its absence. Before the appeal could be resolved, applicant brought an application for rescission of judgment in terms of r 449 (1)(a) of the High Court Rules, 1971 (RGN 1047 of 1971).

Held, that, the High Court will not permit an applicant to vary or set aside a judgment which is subject of an appeal in the Supreme Court as that would amount to an impermissible usurpation of the function of that court and would torpedo its processes.

Cases cited:

Derdale Investments (Pvt) Ltd v Econet Wireless (Pvt) Ltd & Ors 2014 (2) ZLR 662 (H), referred to

Mabwe Minerals Zimbabwe (Pvt) Ltd v Chiroswa Minerals (Pvt) Ltd & Ors HH 56-14 (unreported), referred to

Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 1 r 4C, O 49 r 449

T Mpofu, for the applicant

P Charasikwa, for the first respondent


A preliminary point of law is one that if properly taken in an application or action, is capable of disposing of a matter without the need for the court to delve into the merits of the matter. The party raising the preliminary point must be properly before the court and so should the matter. A respondent who fails to file a proper notice of opposition to an application which is not properly before the court cannot be deemed barred. Such an application cannot have consequences. An application made to uplift a bar operating against a respondent in an application that is improperly before the court is of no consequence and need not be determined by the court. A litigant who is improperly before the court and raises a preliminary point with intend to bar a respondent in circumstances where he clearly has no cause of action or is not properly before the court, only has himself to blame if the court declines to entertain his preliminary point or application to uplift the bar by the other side.

The rules of our court do not make provision for what happens where a litigant wishes to apply to rescind a default judgment in a case where an appeal is subsequently filed in the Supreme Court and the appeal is pending against an order or judgment granted in default. Further, the rules do not provide for rescission of judgment followed by joinder of a party where an order has been granted and in circumstances where the order or judgment is subject of an appeal in a superior court. A practice has developed where courts will not permit an applicant to vary or set aside a judgment which is subject of an appeal in the Supreme Court. The consideration behind this approach is to avoid restricting and torpedoing the functions of the Supreme Court. To allow such a state of affairs would amount to a lower court usurping the functions of a superior court and result in a procedural quagmire. A litigant who is aggrieved by the decision to grant default judgment is required to await the outcome of the appeal, to decide on the way forward.

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