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:

"Where the chamber application procedure is adopted the respondent is not called upon to file any opposing papers. The respondent can make oral submissions at the hearing of the application."

I say "contradictory", because it would appear from the tenor of the arguments presented on behalf of the applicant that its case is that in terms of the Rules, the application to dismiss for want of prosecution should have been made on notice to it and in Form 29 as contained in the First Schedule to the Rules.

The respondent's opposing affidavit is sworn to by Colin Jeche, its Managing Director. The respondent denies the allegation that the order complained of was granted in error, arguing that the Rules empower the court to grant the order sought in chambers. The respondent further avers that in the absence of a plausible explanation as to why the applicant defaulted in pursuing the main matter, there is no basis upon which the court can entertain the present application.

The sequence of events in this matter may be summarised thus: The
respondent sued the applicant under case number HC 5312/13 claiming the sum of US$ 390 127.03 due to it in terms of agreements entered into by the parties. The applicant entered appearance to defend and filed its plea. At the closure of pleadings, the matter proceeded to pre-trial conference on 23 October 2013. The respondent was in default. The matter was postponed to 13 November 2013. The applicant was in default on that day. The respondent's legal practitioner prayed for the striking out of the applicant's defence.
The prayer was granted.

On 15 November 2013 and under case number HC 9739/13 the applicant filed an application for the reinstatement of its defence in the main matter. The respondent filed opposing papers on 29 November 2013. The applicant failed to file its answering affidavit or its heads of argument within a month from the date of receipt of the respondent's opposing papers. It was then that the respondent filed a chamber application for the dismissal of the applicant's application for the reinstatement of its defence. The chamber application was filed on 29 November 2013 in terms of O 32 r 236 (3)(b) of the Rules. It was served on the applicant on the same day. The application was filed using Form 29B as contained in the First Schedule to the Rules. No opposing papers were filed nor were any representations made on behalf of the applicant. The application was granted, unopposed, on 8 April 2014, more than three months after its service upon the applicant.

The present application seeks the setting aside of that order on the grounds that the order was granted in error. The application is made in terms of
O 49 r 449, which provides:

"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) in which there is an ambiguity or a 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.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed."

The relief that the applicant seeks is confined to the specific provisions of r 449 (1)(a), namely that the order was granted in error and should be rescinded on that basis. The question that falls for determination is whether the order of 8 April 2014, granted in chambers and in the absence of the applicant, was granted "in error". It is important to understand the nature of the "error" envisaged in terms of that rule and thereafter to pose the question whether the present application falls within the purview of matters contemplated to be corrected in terms of r 449 (1)(a). How should the provisions of this rule be interpreted? In revisiting its judgment or order the court must be wary to run foul of the principle that once an order or judgment is pronounced, the court becomes functus officio and cannot ordinarily revisit the case to correct any perceived errors. In the South African case of Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C) the point was made at 541B that 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."

The court then goes further to define a patent error or omission as "an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it." On the same page at E-H the court had this to say:

"in so far as the court's inherent power to rectify its own judgment is concerned this has been authoritatively dealt with in the case of Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) where TROLLIP JA stated, at 306F-307G:

'The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that it thereupon, becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased...

There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) the principal judgment or order may be supplemented 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) the court may clarify its 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) the court may 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.'"

In the instant case the terms of the order complained against are clear and unambiguous. There are no patent errors or omissions. Thus far the applicants do not dispute. What they contend in support of the application is a procedural irregularity, in that they were not afforded the opportunity to oppose the application that culminated in the order of 8 April 2014. Assuming that an irregularity occurred, does such irregularity qualify as an error within the meaning of the provisions of r 449 (1)(a) capable of correction by a court which is otherwise functus officio?

The applicant has referred me to Banda v Pitluk 1993 (2) ZLR 60 (H). In my view that case does not support the applicant's case. The court in that case dealt with an error that occurred as a result of administrative flaws on the part of the registrar or inadvertence on the part of the presiding judge. It was stated as follows at 64F:

"In my view, when considering the question of rescission of a default judgment under r 449 (1)(a) on the ground that it was erroneously granted in the absence of any party affected thereby, once the court finds, as it has found in this case, that the judgment was erroneously granted against defendant, either because of an error 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 file or, as is much more likely, because of the absence of the notice of appearance to defend in the court file through delay on the part of the Registry Staff in placing the notice in the court file, then that is the end of the matter and the court should rescind the judgment..."

Now in the present case no opposing papers had been filed at the time the order was granted. No indication as to the applicant's intentions in that regard had been communicated to the registrar or the presiding judge. The judge therefore could not have fallen into the kind of error contemplated in the Banda case (supra). The registry staff are similarly absolved.

The applicant's reliance on the South African case of Theron NO v United Democratic Front (Western Cape Region) and Others 1984 (2) SA 532 (C) is also misplaced. In that case an order was made in terms of a statute whose provisions required that notice of a pending hearing be first communicated to the respondent. The presiding judge proceeded to hear the matter before him in the absence of the respondent. He did so because he was under the erroneous belief that the respondent had been served with the notice of hearing but had decided not to act on it. The resultant order was set aside for that reason. The facts in that case are clearly different and distinguishable from the facts in the present matter. In the instant case there is no indication that the judge acted under any erroneous belief as to the service or otherwise of the application. It must be assumed that the order reflects the intention of the judge who made it. If the applicants had within a reasonable time approached the judge with their concerns it might well be that the judge could have ruled in their favour. That was not done.

Was the applicant entitled to be given notice of set down of the pending application? The answer must be in the affirmative, for O 32 r 236 (3) of the Rules requires that chamber applications to dismiss for want of prosecution must be made on notice. This implies that the chamber application must be served. Order 32 r 241 of the Rules deals with chamber applications in general. Chamber applications shall be accompanied by Form 29B supported by one or more affidavits setting out the facts upon which the applicant relies. Save for in instances defined under O 32 r 242 (1), chamber applications shall be served on all interested parties. Of particular relevance to this case is the proviso to r 241 (1) which reads:

"Provided that, where a chamber application is to be served on an interested party, it shall be in Form No 29 with appropriate modifications."

From the above it is evident that the chamber application in the instant case which was to be made on notice to an interested party should have been in Form 29 rather than Form 29B. A useful discussion on the different implications of using either form can be found in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H). Suffice it to say that Form 29 specifies the period within which opposing papers should be filed and gives warning of the consequences of failure to oppose timeously. The form thus serves as an indication to the court as to when the matter may be treated as unopposed. On the other hand, Form 29B does not stipulate these conditions.

It is common cause that Form 29 was not used in the instant case. It should have been used in compliance with the Rules. The respondent concedes this point, but argues that such omission was not fatal to the application as the judge was perfectly entitled to dispense with that requirement in terms of O 1 r 4C of the Rules. It is further argued that in doing so the judge exercised her discretion judiciously, properly and equitably in the interest of justice.

There are, however, no written reasons given for that departure from the Rules. That, however, should not deter a robust consideration of the present application. For purposes of O 49 r 449 (1)(a), 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 - see First Consolidated Leasing Corporation Ltd v Theron and Others 1974 (4) SA 244 (T). In other words, a mere misdirection on the part of the presiding officer does not constitute an "error" in the sense contemplated under r 449 (1)(a).

What then is expected of a litigant who is served with a chamber application that does not comply with the Rules? In my view, a litigant in that position cannot and should not sit back and hope that the application will not be granted merely because it does not appear to comply with the Rules.

He should be wary that the application shall be placed before a judge in chambers and that it may at any time be granted, erroneously or otherwise. In my view, the applicant should have, as soon as possible, nay, expeditiously, made its position known. It could have written to the registrar indicating that it intended to oppose the application and pointing out the irregularity of the application. It could have filed opposing papers notwithstanding perceived defects in the application. Indeed, the applicant concedes as much when it states at para 44 of its founding affidavit as follows:

"The applicant filed opposing papers to the chamber application for dismissal on 11 April 2014."

As at that date the applicant had not been aware that the application it sought to oppose had been granted on 8 April 2014. The filing of the opposing papers could not therefore have been triggered by the events of 8 April 2014. The applicant filed those papers not in response to a fresh application now filed in Form 29 but in response to the defective application.

These opposing papers were filed on 11 April 2014. The chamber application had been served on 28 March 2014. This way the applicant believed he was not out of time, in view of the usual 10 days period within which to file opposing papers! I thought the complaint was that the chamber application had not indicated when the dies induciae would expire!

Much as the applicant may wish to blame the respondent for the predicament in which it finds itself, it cannot hide behind the provisions of
O 49 r 449 (1)(a) of the Rules in an attempt to conceal the dilatory manner in which it pursued its remedies from the start. It defaulted at pre-trial conference. Its defence was struck out. It instituted an application for the reinstatement of its defence. It failed to prosecute its application prompting the respondent to apply for dismissal for want of prosecution. It gives no reason as to why it had not pursued its case timeously. Further, no plausible reason has been given for not filing its opposing papers to the chamber application timeously. I am inclined to dismiss the present application. The respondent has sought costs on the higher scale. Whilst the applicant has had its shortcomings, the truth of the matter is that the applicant filed a defective application. The application should have been in Form 29. If that had been done, the present application would not have arisen. The respondent is to blame to that extent. For that reason, the application for costs on the higher scale is declined.

The applicant should have proceeded in terms of O 9 r 63 of the Rules. It cannot succeed under O 49 r 449 (1)(a) of the Rules.

It is ordered as follows:

The application be and is hereby dismissed with costs.

Wintertons, applicant's legal practitioners

Gill, Godlonton & Gerrans, respondent's legal practitioners