Lodzi Hunters Zimbabwe and Nqobani Sithole v Tsholotsho Rural District Council and Matupula Hunters (Pvt) Ltd and Director General of Parks and Wildlife Management Authority and Parks and Wildlife Management Authority and The Minister of Environment, Tourism and Hospitality Industry

### Preamble
1
HH 219-21
HC 3269/20
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LODZI HUNTERS ZIMBABWE

and

NQOBANI SITHOLE

versus

TSHOLOTSHO RURAL DISTRICT COUNCIL

and

MATUPULA HUNTERS (PVT) LTD

and

DIRECTOR GENERAL OF PARKS AND WILDLIFE MANAGEMENT AUTHORITY

and

PARKS AND WILDLIFE MANAGEMENT AUTHORITY

and

THE MINISTER OF ENVIRONMENT, TOURISM AND HOSPITALITY INDUSTRY

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 15 March & 30 April 2021.

Opposed Application for Rescission of Judgment.

R. Mabwe, for the applicants

J. Sibanda, for the 1st respondent

D. Tivandor, for the 2nd respondent

MUZOFA J: This is an application for rescission of a default judgment in terms of r 63 and r 449 (1) of the High Court Rules, 1971.

The first applicant is a duly registered company in terms of the relevant laws of Zimbabwe in the business of providing hunting safaris. The second applicant is a legal practitioner practicing under Ncube Attorneys, a law firm situate in Bulawayo. He is the first applicant’s legal practitioner of record. The first respondent is a district council and a corporate body. It governs the affairs of Tsholotsho District. The second respondent is a body corporate that operates safari business in Zimbabwe. The third respondent is the head of the Parks and Wildlife Management Authority of Zimbabwe. The fourth respondent is a statutory body that manages the National Parks and Wildlife Resources of Zimbabwe.

The fifth respondent is the Minister responsible for the national environment, tourism and hospitality issues in Zimbabwe.

The first applicant, the first respondent and the second respondent are embroiled in a dispute that has led to court process issued out in the Bulawayo High Court and this court including an application before the Procurement Regulatory Authority of Zimbabwe (PRAZ). Still the parties are nowhere near resolution of the real dispute.

In March 2019 the first respondent flighted a tender for the Tsholotsho North Hunting Concession in the Chronicle Newspaper. Both the applicant and the second respondent responded to the advert. The applicant was advised of its unsuccessful bid. It filed a bidder’s challenge to the first respondent challenging the procurement proceedings. When the first respondent did not respond to the bidder’s challenge, the applicant approached PRAZ for a review of the procurement proceedings. The procurement proceedings were set aside on 19 June 2019.

While the administrative challenge was pending , the first respondent entered into contracts with the second respondent giving effect to the award. In HC 1144/19 the applicant filed an urgent chamber application to interdict the first respondent from giving effect to the contract awarded to the second respondent. The matter was struck off for non-urgency. In between, some 5 matters have been heard and one is still pending in the High Court sitting in Bulawayo stemming from this tender process. Eventually HC 9482/19 was issued out in Harare by the applicant on 20 November 2019. It is an application for a declaration that the PRAZ decision is binding on the respondents and that all the contracts between the first and second respondents entered on the basis that the second respondent won the tender be declared invalid and of no force and effect.

The first applicant did not file the heads of argument as required by the rules. The matter was set down for hearing before Mafusire J. The first applicant appeared, represented by Mr. Mafume a correspondent lawyer. The second respondent was not in attendance. Mr. Mafume applied for a postponement of the matter. The application was dismissed, consequently a default order was granted with costs de bonis propriis against the applicants. This is the application for the rescission of the said order.

The application was opposed by the first and second respondents. The third, fourth and fifth respondents did not file any opposing papers.

A number of preliminary points were taken for the respondents in the opposing affidavits. I address those specifically motivated in oral submissions.

The first point was abandoned after the court sought further particulars. The second point taken was to expunge the applicant’s answering affidavit and the heads of argument as they were filed out of time.

Rule 234 provides for filing of an answering affidavit. An answering affidavit maybe filed only after the respondent has filed a notice of opposition and an opposing affidavit. There is no reference to time frames except that an answering affidavit may not be filed less than 10 days before the hearing of the application. I agree with the reasoning in Turner and Sons Pvt Ltd v Master of the High Court and Others HH 498/19 that on a proper application of Order 32 of the Rules, the sequence of affidavits in motion proceedings is first the founding affidavit, notice of opposition and opposing affidavits, answering affidavit, heads of argument and the set down of matter. The answering affidavit must be filed before the heads of argument to give the respondent an opportunity to address the legal issues raised in the answering affidavit. Rule 236 provides for the set down of the matter where the applicant fails to file an answering affidavit within a month. It must follow then, that where an answering affidavit is not filed within the one month the respondents can file their heads of argument. Where the answering affidavit is not filed, and the respondent files the heads of argument, leave of the court should be sought for filing of the answering affidavit. Where condonation is not sought and granted the answering affidavit should be expunged. Motion proceedings are meant to dispose of matters within a short period of time. Therefore, where an applicant waits forever before filing the answering affidavit, the rules have provided recourse for the respondent for the disposal of the matter.

In this case the first respondent and second respondents filed the notices opposition and opposing affidavits. The applicant filed its answering affidavit after a month of the notices of opposition were filed and after both respondents had filed their heads of argument. No condonation was sought. The applicant’s answering affidavit and the heads of argument are not properly before the court they are accordingly expunged.

The third point taken is that the application was filed out of time. Since this is a double-barreled application made in terms of r 63 and r 449 of the Rules, I must consider the rules individually. Rule 63 is clear, an application in terms of that rule should be made within a month of the order sought to be set aside. There is no dispute that this application was filed outside the time limits. A concession was made and rightly so. The application in terms of r 63 suffers a still birth. It is surprising that the second applicant, an officer of this court sought to mislead the court in his founding affidavit by alleging that the application was filed within the set time frame.

Rule 449 provides no time frame. Our courts have settled for the approach that the time within which the application should be made must be reasonable considering the circumstances of the matter. The preliminary point therefore fails in this regard. It was not shown that the period taken before the application was filed was unreasonable.

The fourth point taken fell away naturally when the applicant abandoned the application under r 63. It was that where an applicant files an application in terms of r 63 and r 449 it should satisfy the requirements of both rules. Since the application under r63 was abandoned, this application stands to be determined in terms of r449 (1) only which renders the point taken inconsequential. 	. 
	On the merits, it was submitted for the applicants that r238 does not provide for a bar as against an applicant who fails to file heads of argument. In other words, the court granting the default order fell into error by barring the first applicant for non-filing of heads of argument. The point was not alluded to in the founding affidavit, it was made in the oral submission.  In respect of the second applicant, it was submitted that the court granted an order affecting the second applicant without giving him an opportunity to be heard.

The thrust of the respondents’ submissions was that the first applicant’s founding affidavit did not set out the error by the court. The second respondent was given notice that costs would be requested de bonis propriis he opted to not be heard. At the end of his submission Mr Tivandor made veiled concession that the application maybe granted in respect of the second applicant on the basis of principle that such costs should be granted after the legal practitioner has been heard. Further it was submitted that the first applicant was barred before MAFUSIRE J and remains barred to make this application. The applicant can only be heard for the purposes of uplifting the bar only.

In an application under r 449 (1) the applicant has to establish the following,

that the judgment was erroneously sought or erroneously granted.

that the judgment was granted in the absence of the party.

that the applicant’s rights or interests were affected by the judgment.

see Mutebwa v Mutebwa & Anor 2001 (2) SA 193.

The learned authors Herbstein & Van Winsen   opine that   an error exists where at the time the order was granted there existed facts of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if aware of it not to grant the judgment. Where a court revisits its decision, it is not confined to the record only. It is not sitting as an appeal court. It may consider new factors placed before it by a litigant showing that, had the judge been aware of those facts, the order may not have been granted. See Grantually (Pvt) Ltd and Another v UDC 2000 (1) ZLR 361 (S), 364H- 365 A-B.

The court’s inherent power to vary or correct its judgment in terms of r 449, r 63 or the common law should not be used as an avenue to review a court order. These provisions are an inroad to the general principle that once a court pronounces its judgment or order it becomes functus officio. It is therefore incumbent for an applicant to set out clearly in the founding affidavit the factors that it believes had the court granting the order in its absence been aware of, it may not have granted the order.

I agree with Mr. Tivandor’s submissions. The order against the first applicant was not granted in its absence. It was represented by Mr. Mafume. The second applicant confirmed this position in his founding affidavit that, for the first applicant not to default he instructed Mr. Mafume to appear representing the first applicant. The undisputable fact is that, before the court the first applicant was barred for its failure to file heads of argument. An application for postponement was dismissed. The natural consequence of the dismissal was to proceed with the matter. The court was entitled procedurally to then deal with the matter. Before it, was a bar operating against the first applicant.  I was not pointed to any fact or issue that, had the court been aware of , it could not have granted the order.

The default order was not granted because the first applicant was not in attendance but for its failure to file its heads of argument. The wording in r 449 envisages an application where the order was granted in the absence of the party which is not the case herein. The first applicant fails on this point. On this point alone the application can be dismissed because the applicant must satisfy all the requirements under r 449 (1). For the sake of completeness, I address all the issues raised in this matter.

It is trite that an application stands or falls on its founding affidavit. The first applicant’s founding affidavit sets out the facts and associates itself with the averments set out in the second applicant’s affidavit. The better part of the affidavit established a good and sufficient cause. This is a requirement in an application made in terms of r 63. For the purposes of r r449 (1) the applicant need not establish good and sufficient cause. The second applicant’s founding affidavit did not draw this court to the error made in granting the default judgment against the first applicant. All that is explained is how he tried to secure the services of counsel which efforts failed. In my view that explanation does not amount to facts that, had the court known it would not have granted the order. What is envisaged as an error are facts that do not require a further exercise of discretion or interpretation of the law. For instance, where the court grants a default order believing the party was served. Where the defaulting party subsequently establishes that it was not served it becomes obvious that had the court been aware of those facts it would not have granted the order. In casu the explanation given would require a court to exercise its discretion first. It can suffice for the purposes of r63 and not for r449 (1) of the rules. The first applicant failed to establish that the order was erroneously granted.

The fact of the bar was real. The first applicant did not seek to uplift the bar at all or to be condoned. The bar in operation against the first applicant precluded it from being heard save for the purposes of upliftment of the bar in terms of Order 12 r 83(b) see also Muranda v Todzaniso 1998 (2) ZLR 325 (H). As properly submitted this court could have declined to hear the first applicant in terms of the said rule. The first applicant has failed to set out the necessary facts to qualify for rescission under r 449 (1).

The second applicant is the first applicant’s legal practitioner. He was not in attendance on the day the order was granted neither was he a party to the proceedings save for costs claimed against him.  It was argued that the second respondent’s opposing affidavit expressly sought costs de bonis propriis against the second applicant. The second applicant did not file any opposition to the claim as such he cannot seek rescission on the basis that he was not heard. He was given the opportunity but did not utilize it. The procedure suggested that the second applicant could have filed opposing papers is alien. I was not referred to any authority for that suggestion. It is the practice of the courts that where costs are claimed de bonis propriis, the legal practitioner does not file any opposition papers. He is not a litigant. Instead, the issue is traversed in the heads of argument. Even oral submissions suffice.

Similarly, in his affidavit the second applicant does not set out the basis of the alleged erroneous judgment. In other words, nothing was traversed in the pleadings to point to the court facts that would have swayed the court otherwise. Once the court dismissed the application for postponement which applicants have not taken issue with, the court was entitled to deal with the matter. That is the procedure, there was no error. The door had been shut for the first applicant. The first applicant was barred and therefore a default judgment was the only course. There is no error. The question of costs dovetails with the main matter. It may be that another court would probably have dealt with the issue of costs as against the second applicant differently. In this case the court in its discretion decided to grant the costs as prayed. The question is whether this was an erroneous order granted in the absence of the second applicant? I do not believe so.

The second applicant did not respond to the request for costs as prayed for, because the first applicant did not file heads of argument. I revert to the issue of the postponement. It’s time to remind legal practitioners who appear in courts seeking a postponement that a postponement is not given on the asking. It involves the court’s discretion. A legal practitioner should therefore approach the court with a view that the application may or may not be granted. That legal practitioner and instructing legal practitioner should be alive and be ready to embrace the consequences of a non-postponement.

The order of costs was connected to the first applicant’s case. Once the postponement was dismissed, the court granted the default order as prayed for. Even if the order was granted in the absence of the second applicant, the error by the court has not been shown. The second applicant has also failed to establish its case for rescission of judgment under r 449 (1).

Accordingly, the following order is made.

The application is dismissed with costs.

Mafume Law Chambers, applicant’s legal practitioners

Job Sibanda and Associates, 1st respondent’s legal practitioners

Kevin Arnott, 2nd respondent’s legal practitioners