RUDO TIRIBOYI
versus
ALBERT NYONI JANI
and
SHALOM KUDZAI MKWAKWAMI
HIGH COURT OF ZIMBABWE
MAKARAU J
HARARE, 22 April and 26 May 2004
Opposed Application
Mr. G Mandizha, for the applicant
Mr T Hussein, for the respondents.
MAKARAU J: The “villain” in this double sale saga is one John Tasengera Sithole (“Sithole”). He, being the owner of certain immovable in Greendale Harare, commonly known as Number 89 Harare Drive, sold the property to the respondents in November 2001 for the sum of $5 000 000-00. Two months later he sold the same property to the applicant for the sum of $6 000 000-00. The respondents did not take occupation of the property after the sale. The applicant did. Although the agreement of sale between her and Sithole provided that occupation would be given to her in May 2002, she alleges in her application that she took occupation of the property in August 2002.
In April 2002, the respondents obtained a provisional order from this court, calling upon Sithole to show cause why he should not be ordered to transfer the property to the respondents. At the same time, the provisional order acted as interim protection to the respondents, restraining Sithole from transferring the property other than to them pending confirmation or discharge of the provisional order. A caveat was duly noted against the title to the property as a result of this provisional order. The applicant was not cited in these proceedings.
In default of appearance by Sithole, the provisional order was confirmed and the property was transferred to the respondents by virtue of the order confirming the provisional order. Sithole applied to have the default judgement against him set aside. He was unsuccessful and his application for rescission was dismissed on 2 March 2003.
In the meanwhile, the applicant remained in occupation of the property. She in turn had issued out of this court, an application, seeking an order compelling Sithole to transfer the property to her. Before this application could be set down for hearing, in February 2003, she became aware of the transfer of the property to the respondents when she intercepted mail meant for Sithole. She then filed this application in which she prays for an order rescinding the default judgment against Sithole and for an order setting aside the transfer in favour of the respondents. The application was opposed.
Mr Mandizha for the applicant argued that the application was brought in terms of rule 449 (1) of the High Court Rules1971. The rule provides in part:
“(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 judgement or order-
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that was erroneously sought or erroneously granted in the absence of any party affected thereby; or
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……………”
The issue that falls for my determination is whether the default judgement given against Sithole was erroneously sought or erroneously granted for the purposes of the rule.
Mr. Mandizha’s argument was to the effect that because the applicant was not joined as a party to the proceedings between the respondents and Sithole, the default judgement granted against Sithole was erroneously granted as another interested party was not before the court.
The purpose of r449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgements given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.
The rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment. (See Grantully P/L 2000 (1) ZLR 361 (SC).
R449 is a procedural step to correct an obviously wrong judgment or order.
The power given the court under the rule is discretional and like all such powers, must be exercised judiciously.
In this mater, the error that the applicant complains of is that she was not cited in the proceedings between Sithole and the respondents. Clearly, this was not an error of the court. It is not the duty of the court to go looking for all potential respondents in suits brought before it.
A review of the authorities would appear to suggest that the rule is designed to correct errors made by the court itself and is not an omnibus through which new issues and new parties are brought before the court for trial.
In Grantully 2000 (1) ZLR 361 (SC), the default judgment was granted at a time when the judge was unaware of a relevant fact. The amount claimed was not yet due and payable. To that extent the judgment was entered erroneously and the Supreme Court may have had the judgment set aside had the applicant bot delayed in bringing his application.
In Banda v Pitluk 1993 92) ZLR 60, default judgment was granted against an applicant who had filed a notice of appearance to defend that was not brought to the attention of the judge entering the default judgment. This was a procedural irregularity on the part of the court.
In the South African case of Mutebwa v Mutebwa 2001 (2) SA 193 (TkH), the ambit of the equivalent rule in South Africa was discussed and it was held that the three requisites that had to be satisfied for relief under the rule were:
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that the judgment was erroneously sought or granted,
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that the judgment was granted in the absence of the applicant and
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that the applicant’s rights or interests are affected by the judgment.
Once these three factors are satisfied, the applicant is entitled to succeed and the court should not inquire into the merits of the matter to find “good cause” upon which to set aside the order or judgement in issue.
The issue that falls for determination in this application is whether the order against Sithole was erroneously granted. In my view, it was not. It appears to me that misjoinder, where the court is unaware of the interested party who has not been cited is not an error on the part of the court granting the order and cannot be corrected in terms of r449. It could only be an error on the part of the court if the court, having been made aware of the interests of the non-cited party, proceeds notwithstanding the absence of that party to pass a judgment that will affect the rights of that party. There is no indication that the rights of the applicant were brought before the court that granted the order against Sithole. I would distinguish between the lack of knowledge on the part of the court in this instance from the lack of knowledge on the part of the court in the three authorities cited above. In theGrantully case, the court was unaware of the provisions of a document that had been placed before it as evidence. In the Banda case, the court was unaware of the appearance to defend that the defendant had filed with the court. In Mutebwa’s case, the situation was slightly different. The Deputy Sheriff, a court official, had filed a false return with the court upon which the divorce was granted. When the court became aware of the correct position, it set aside its judgement as it had granted it in error. The applicant herein has not shown the error committed by the court in this instance. The court could not have been aware of the correct
On the basis of the foregoing, the applicant cannot succeed. In the result I make the following order:
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The application is dismissed.
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The applicant shall pay the respondent’s costs.
Madzivanzira & Partners, applicant’s legal practitioners
Hussein Ranchod & Company, respondent’s legal practitioners
