Grow Even Syndicate v Robson Sibanda & Anor & Anor

### Preamble
1
HB 58/21
HC 1746/20
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GROW EVEN SYNDICATE

Versus

ROBSON SIBANDA

And

THE PROVINCIAL MINING DIRECTOR, MATEBELELNAD NORTH

And

OFFICER IN CHARGE, ZRP INYATHI

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 30 MARCH 2021

Rescission in terms of rule 449 of the High Court Rules, 1971

S. Nkomo, for the applicant

V.J. Mpofu, for the respondent

DUBE-BANDA J: 	This matter was set down on 11 March 2021 in the unopposed motion court. When it was called, Mr Ngwenya, counsel for the applicant then, submitted that the papers were in order, and prayed that the provisional order be confirmed in terms of the draft order. I raised a query that the matter was opposed, and it could not be dealt with in the unopposed motion court. I noted from the file that this matter had previously been set-down in the unopposed motion court, and was removed from the roll. Counsel seemed to agree that indeed the matter was opposed, and as a result I removed the matter from the roll, and ordered that as long as there was still a notice of opposition, it should not be set-down in the unopposed motion court.

On the 16 March 2021, Mr Nkomo addressed a long letter to the Registrar of this court indicating that the confirmation was not opposed. A request was made that I mero motu rescind, in terms of Order 49 rule 449 of the High Court Rules, 1971, the order made on the 11 March 2021. I juxtaposed the letter and the file, and opined that Mr Nkomo is indeed correct that the confirmation is not opposed.  In terms of rule 449(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. To meet the requirements of rule 449(2) I invited Mr Nkomo and Mr Mpofu for the first respondent, to appear in chambers on the 26 March 2021. Mr Nkomo, demonstrated, only from the record, nothing outside the record that the confirmation was not opposed, and Mr Mpofu conceded, that indeed it was not opposed. After satisfying myself, ex facie the record that indeed the confirmation was not opposed, I made the following order:

That the order made on the 11 March 2021, that this application is opposed and should not be set down in the unopposed motion court as long as the notice of opposition is still in the record, is and hereby rescinded in terms of Order 49 rule 449 of the High Court Rules, 1971.

I indicated that the reasons for this order shall follow. These are the reasons. This matter was filed as an urgent application on 12 October 2020. First respondent filed a notice of opposition on 14 October 2020. A provisional order was granted, and it has two dates, 7 October 2020 (at the top), and 16 October 2020. When the application was placed before me in the unopposed motion court for confirmation, I only noticed the 7th October 2020 date, and that the notice of opposition was filed on 14 October, I then concluded that the notice of opposition was filed to oppose the confirmation. I did not notice the date of the16th day of October, 2020. On 26 March 2021, when both counsel appeared before me in chambers, they agreed that indeed the provisional order was granted on 16 October 2020, and 7 October 2020 was inserted in error. It is clear then that the notice of opposition in the file was directed at opposing the granting of the provisional order, not its confirmation. Again, Mr Mpofu, confirmed that indeed the confirmation was not opposed.

The general principle now 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 the court thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. The other equally important consideration is the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order. See:  Herbstein and Van Winsen The Civil practice of the High Courts and the Supreme Court of Appeal of South Africa (Juta) 5th ed. 926. Rule 449 of the High Court Rules, 1971, on correction, variation and rescission of judgments and orders provides an exception to the general rule and allows a court to revisit a decision it has previously made but only in a restricted sense. See: Austin Munyimi v Elizabeth Tauro SC 68/11.

Therefore, in terms of rule 449(c), this court has power, mero motu, to rescind a judgment that was granted as the result of a mistake common to the parties. See: Banda v Pitluk 1993 (2) ZLR 60 (HC).  In this case there is no application for rescission, I confined myself to the record of the proceedings and such error appears ex facie such record.  See: Austin Munyimi v Elizabeth Tauro (supra). In casu, I take the view that if I had noticed that the provisional order was granted on 16 October 2020, and that 7 October 2020, was in fact an error, I would not have issued the order made on the 11 March 2021. The order was made as a result of a mistake. The mistake is ex facie the record, and the letter dated 16 March 2021, did not introduce any facts or circumstances that do not arise from the record. My view is that such a realisation marks the end of the matter and I should rescind the order mero motu, as I did on 26 March 2021.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

V.J. Mpofu& Associates, 1strespondent’s legal practitioners