Gondwanaland (Private) Limited v Hoptech Enterprises (Private) Limited

### Preamble
Judgment No. SC 08/20
1
Civil Appeal No. SC 966/18
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NOT REPORTABLE/DISTRIBUTABLE

GONDWANALAND     (PRIVATE)     LIMITED

v

HOPTECH     ENTERPRISES     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, HLATSHWAYO JA & UCHENA JA

BULAWAYO:	25 MARCH 2020

N. Mangena, for the appellant

E. Mubaiwa, for the respondent

UCHENA JA:	This is an appeal against the whole judgment of the High Court which dismissed the application by the appellant for variation of a consent order.

The consent order among other things consolidated several applications which were pending before the court.

The consent order comprehensively set out what steps the parties were to take before the matter went to trial.

Subsequent to the granting of the consent order the appellant applied for its variation.  In its founding papers the appellant did not specify the legal basis on which the application was being made.

The basis was only revealed in its notice and grounds of appeal before this Court.  The court a quo commented on this as follows:

“This application is unprecedented.  While it seeks a variation of a court order it is not clear how it is being brought.  Is it under Rule 449, NO.   Is it under the common law?  We are not told.  The founding affidavit is silent on the platform the applicant uses, to bring such application.  In other words it is not clear what aspect of our procedural law was used to bring such an application”.

The court a quo accordingly held that from the papers on record no case had been made for the case before it.

We find no fault with the reasoning and decision of the court a quo.

Before this Court the applicant in ground number 1 claims that the court a quo erred in failing to find that it had capacity to relate to an application for variation of a consent order, whether in terms of r 449 or under the Common Law.  The court a quo considered that issue and found that it was not raised before it as quoted above.

Grounds number 2 to 4 in our view are an improper attempt by the appellant to reharsh on appeal arguments raised in the court a quo without disclosing the procedural basis on which the application was brought before it.

At any rate the application a quo effectively implored the court to vary its own order in circumstances where in our view the court was clearly functus officio.

The appeal has no merit and ought to be dismissed.

Accordingly it is ordered as follows:

The appeal be and is hereby dismissed with costs.

GWAUNZA DCJ 					I agree

HLATSHWAYO JA					I agree

Coghlan & Welsh, applicant’s legal practitioners

Richard Manwick Dhaka, respondent’s legal practitioners