TRISTAR INSURANCE COMPANY (PVT) LTD
Versus
WILBERT CHIKANYA
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA J
BULAWAYO 8 NOVEMBER 2013 AND 16 JANUARY 2014
K. Gama for applicant
N. Mazibuko for respondent
Opposed Court Application
KAMOCHA J: The applicant in this matter is seeking for an order of this court in the following terms:-
“It is ordered that:-
(a) The orders granted by the court on 10 May 2012 and on 5 July 2012 in cases No. HC 955/2012 and No. HC 1859/12 respectively, be and are hereby rescinded;
(b) The respondent shall bear the costs of suit.”
The rescission of above court orders is being sought in terms of Order 49 Rule 449 (1) (a) of the rules of this court which deals with correction, variation and rescission of judgments and orders. The rule provides as follows:-
“(1) The court or 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) …”
The order granted by the court on 10 May 2012 was as follows:-
“It is ordered that:-
(a) Respondent must file and serve its discovery affidavit in case No. HC 3718/2011 within five (5) days of the service of this order upon it or its legal practitioners, failing which, it shall be automatically barred and applicant is granted leave to file a chamber application for the striking out of respondent’s defence under case No. HC 3718/2011 without notice to the respondent and for judgment to be entered.
(b) Respondent shall pay the costs of this application.
(c) The respondent’s legal practitioners, or an employee thereof, are hereby authorized to serve this order on the respondent at the address of service of the respondent as provided in case No. HC 3718/2011.”
The applicant averred that the respondent who was the applicant in that matter filed the application and was granted an order ex parte when pleadings had not been closed. Order 24 Rule 160 provides that a notice to discover shall not, save with the leave of a judge, be given before the close of pleadings. Doing so without the leave of a judge before the close of pleadings is expressly and directly prohibited by Rule 160.
No judge gave leave for the close of pleadings in this matter. The respondent argued that pleadings had closed since his replication did not raise any new matter. The submission is simply untenable. One has just have to look at paragraphs 3b, 3d paragraph 5, paragraphs 6b and 6c of plaintiff’s replication at pages 18 to 20 of bound papers which raised new issues. The defendant was expected to respond to the allegations in those paragraphs as they were hotly contested. Quite clearly pleadings had not been closed.
It is a fundamental principle of our law that anything done contrary to what the law expressly and directly prohibits is void and of no force or effect. A court order granted in such circumstances is granted erroneously. In casu the order was also granted in the absence of the affected party – the present applicant.
This is a proper case where Rule 449 (1) (a) applies.
The order granted on 5 July 2012 reads thus:-
“IT BE AND IS HEREBY ORDERED THAT:-
(1) The defendant’s defence in case No. HC 3718/2011 be, and is hereby, struck out
(2) The defendant shall cause the plaintiff’s motor vehicle, engine No. lZZU067080 and registration No. ACC 5540 to be repaired at its own cost using new motor vehicle spare parts as quoted by Bulawayo Toyota within seven days of the granting of this order, failing which the defendant shall pay the plaintiff the sum of $7 000,00 together with interest thereon at the prescribed rate calculated from the 24th October 2011 to date of full payment.
(3) The defendant shall pay the costs of suit on a legal practitioner and client scale.”
The order was sought and granted ex parte – in the absence of the affected party.
The affected party was not afforded an opportunity to be heard. The applicant had relied on the order granted to it on 10 May 2012 wherein it was granted leave to file a chamber application for the striking out of the respondent’s defence under case No. 3718/2011 without notice to the respondent. This court has held that that order was erroneously granted. It was granted contrary to the mandatory provisions of Rule 160 and was ipso factor of no force or effect. Nothing can be derived from such an order.
In the result, the order of 5 July 2012 was also erroneously granted. This is also a proper case where the provisions of Rule 449 (1) (a) apply.
Mr Mazibuko submitted that the applicant shall bear costs of this application irrespective of whether or not it is successful. I cannot accede to such a request as there is no reason why this court should depart from the well established rule that costs follow the result.
The order of this court is that this application succeeds and an order be granted in terms of the draft order at page one.
Gama & Partners applicant’s legal practitioners
Calderwood, Bryce Hendrie & Partners respondent’s legal practitioners
