Rita Marque Mbatha v Vincent Ncube & Anor

### Preamble
Judgment No. SC 121/22
1
Civil Appeal No. SC 237/22
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REPORTABLE (107)

RITA     MARQUE     MBATHA

v

VINCENT      NCUBE

MESSENGER     OF     COURT     HARARE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & KUDYA JA

HARARE: 3 OCTOBER 2022 AND 12 OCTOBER 2022

The appellant in person

The first respondent in person

No appearance for the second respondent.

MATHONSI JA:	This is an application made in terms of r 73 of the Supreme Court Rules, 2018 as read with r 29(a) (sic) of the High Court Rules, 2021 for the rescission of a judgment of this Court that was handed down in an appeal filed by the applicant under case number SC 443/21.  After hearing the parties on 12 October 2022, we dismissed the application and indicated that full reasons for our decision would follow. What I provide hereunder are those reasons.

The applicant appealed against the judgment of the High Court which dismissed her urgent application to interdict the respondents from evicting her from residential premises she is renting from the first respondent in terms of an extant eviction order of the Magistrates’ Court. At the hearing of the appeal on 6 June 2022 the applicant was in default.

In the exercise of its discretion reposed by r 53(3) of the Court Rules, the Court proceeded to determine the appeal on the merits and dismissed it with costs.  The reasons for that course of action are given in a comprehensive judgment of the Court in SC 109/22.

Suffice it to say that this Court finds no merit in the application for rescission of judgment.  It is absolutely groundless given that the appeal was determined on the merits and full reasons given.  It is trite that this Court is the final Court of appeal in non-constitutional matters and the finality of its decisions means that the applicant cannot bring an application for the rescission of such decision made after consideration of the merits of the appeal.

This Court is constituted to determine cases and resolve disputes between litigants brought to it on appeal.  It is not a reservoir or depository for dumping cases by those who appear unwilling to have cases disposed of expeditiously but would rather continue baby-sitting cases while keeping the rights of others in suspense, or trampling on those rights.

Where indications of such abuse are apparent, the Court will not hesitate to invoke its powers in terms of r 53(3) to determine appeals on the merits in order to liberate the parties from the shackles of unending litigation.

THE FACTS

The detailed facts of this matter appear in the earlier judgment disposing of the appeal.  Briefly, in 2016, the first respondent filed an application in the Magistrates Court for the eviction of the applicant under case number MC 39520/16. He alleged that the applicant had neglected to pay rentals for a property leased to her and that she had fallen into arrears. The Magistrates’ Court granted the application for eviction in default.  Thereafter, the applicant filed an application for the rescission of that default judgment.  However, the Magistrates Court found that she was in wilful default as she had been properly served with the notice of hearing and it went on to dismiss the application.

The applicant was discontented with the finding of the Magistrates’ Court.  Consequently, she filed an application for review in the High Court and another application for a stay of execution pending the determination of the review proceedings and the latter was dismissed.

It is pertinent to note that pending the said applications, the first respondent had executed the eviction order granted by the Magistrates’ Court through the second respondent.  This, in turn, prompted the applicant to file an application seeking spoliatory relief in the High Court pending her application for review. Her contention was that the attachment of her property and eviction from the property were illegal for failure to follow due process.

The application for spoliatory relief was granted under HC 7310/18.  Surprisingly the applicant thereafter withdrew her application for review believing that the spoliatory relief that she had obtained finalised the dispute between the first respondent and herself. She was wrong because the eviction order of the Magistrates’ Court remained extant.

With the review application which had kept the applicant firmly in occupation out of the way, the first respondent again sought to have the applicant evicted in terms of the extant eviction order.

The applicant reacted by filing an urgent application for an interdict restraining the first respondent from evicting her from the leased premises through the second respondent.  On 18 November 2021, that application was dismissed.  Stung by that turn of events the applicant noted an appeal to this Court under case number SC 443/21.

The appeal under SC 443/21 was set down for hearing on 6 June 2022.  As it turns out, the applicant did not attend Court to motivate the appeal.  Apparently a day before the hearing, she notified the Assistant Registrar of the Court that she could not attend the hearing for medical reasons.  Although she  was advised to upload her letter and doctor’s note on the Integrated Electronic Management System – “the I.E.C.M.S.” – to enable this Court to have sight of the doctor’s note, the Court having by then gone digital, she did not do so.

At the commencement of the hearing of the appeal under SC 443/21, the applicant was not in attendance.  Crucially, there was proof of service of the notice of hearing on the electronic record.  On his part, the first respondent appeared in person while the second respondent was represented.  The first respondent entreated the Court to bring finality to the dispute which, he submitted had raged on for ten years to his prejudice.  He further submitted that he was entitled to execute the eviction order as it was extant and not subjected to any challenge.

As I have said, the court proceeded in terms of r 53(3) of the Supreme Court Rules, 2018 – “the Rules” – to determine the appeal on the merits whereupon it was dismissed with costs. The Court announced that the reasons for doing so would follow in due course.  I note that those reasons have been availed by this Court in the judgment of Rita Marque Mbatha v Vincent Ncube & Anor S–109-22.

THE APPLICATION

Alleging that this Court had issued a “seminal and unprecedented order”, on 7 June 2022 the applicant filed an application for the rescission of the order issued in SC 433/21 in terms of r 73 of the Rules as read with r 29(a) (sic) of the High Court Rules, 2021.  The thrust of the application is contained in the sixth to the eighth paragraphs of the founding affidavit which reads;

“6.	It will not be futile to make one last attempt to invite the Supreme Court to relook its decision and to merely reassess whether it has acted within the Constitution or, erroneously, beyond the powers vested in the court by the Constitution.

7.	The peculiarity and uniqueness of these unprecedented matter (sic) where I was not served and a court order issued without me being heard. The order sought to be rescinded was granted in my absence and was fraudulently sought and erroneously granted. The implication thereof on my rights to fair trial should all combine to militate in favour of serious entertainment of this matter.

8. 	I believe that I am entitled to a court that will examine – with dispassionate interest but keen sense of judicial duty and independence – whether this judgment represents the law wherein the Respondent filed a defective certificate of service with this Honourable Court having not served the Applicant in this matter.” (The underlining is for emphasis)

The applicant, thus, prayed that the order issued in SC 443/21 be rescinded and a corresponding order that the Registrar of this Court set down the appeal under SC 443/21.

SUBMISSIONS BY THE PARTIES

At the commencement of the hearing of the application, the Court drew the applicant’s attention to the fact that the reasons for judgment in SC 443/21 had since been availed.  To this, the applicant stated that she was not aware that the reasons for the judgment were available.  The Court also engaged the applicant on the import of the powers that were exercised in SC 443/21 under r 53(3).  In response, the applicant submitted that the first respondent was aware that she could not attend the appeal hearing as she was hospitalised, thus contradicting herself since in para 7 of her founding affidavit she alleged that she had not been served.

The first respondent did not make any submissions as he was barred for failing to file any opposition to the application.

The preeminent issue arising for determination is whether or not it was competent for the applicant to apply for the rescission of a judgment of this Court that was rendered on the merits.

THE LAW

In determining the issue the point of departure is consideration of the provisions of the Rules governing the procedure to be followed where there is non-appearance by an appellant. Rule 53(3) provides:

“(3) Where, at the time of the hearing of an appeal, there is no appearance for the appellant or no heads of argument have been filed by him, the court may, at its discretion, determine or dismiss the appeal and make such order as to costs as it may think fit.” (The underlining for emphasis)

There is no ambiguity in the above subrule. Its import is readily discernible from a simple grammatical reading of it. The first notable feature of the rule is that it bestows discretion on the Supreme Court to decide what to do.  Invariably, discretion involves the judicial power to make a just decision or reach a judgment, which power is exercised within the bounds of the principles of the law.  The nature of judicial discretion was aptly set out by Lord Coke in Black’s Law Dictionary, 4 ed (1968), thus:

“judicial discretion ……‘discernere per legem quid sit justum,’ [is] to see what would be just according to the laws in the premises. It does not mean a wild self-willfulness, which may prompt to any and every act; but this judicial discretion is guided by the law, (see what the law declares upon a certain statement of facts, and then decide in accordance with the law,) so as to do substantial equity and justice.”

I have had to relate to the nature of judicial discretion as it determines how this Court applies r 53(3) at any given moment.  It is trite that discretion must always be exercised judiciously.

That leads me to the second feature of r 53(3), namely that it gives the Court discretion to either determine an appeal or to dismiss it if the appellant does not appear or, where required, provide heads of argument.  The Court therefore has power and authority, reposed in it by that subrule, in its unfettered discretion, to determine an appeal or dismiss it where there is no appearance for the appellant. At any given moment in which the circumstances in r 53(3) are satisfied, this Court would have two courses open to it.  Inevitably, it is restricted to only one of those courses.  Whatever course the Court settles for, there are legal consequences that will flow therefrom.

This application engages only one of the two courses that the Court may follow, that is, the determination of the appeal. Such a determination involves the consideration of the merits of an appeal.  Consequently, where a civil appeal is determined on the merits, several legal consequences flow from such a determination.

While it is true that in terms of r 53(3) the Court may grant default judgment, which is what “dismiss the appeal” in that provision stands for, it is not what the Court did in this matter.  It “determined” the appeal.  In light of the fact that the entering of a default judgment is in the main, an administrative process, it does not involve any real determination of the case.  It is for that reason that a default judgment is susceptible to rescission at the instance of the defaulting party.

The principle underlying the jurisdiction for setting aside a default judgment, which obviously does not apply to the present case, was pronounced succinctly in Evans v Bartlam [1937] AC 473 cited with approval by this Court in Daniel Chintengo v Tredcor Zimbabwe (Pvt) Ltd t/a Trentyre Zimbabwe SC 67/19 at p 9 of the cyclostyled judgment where at p 480 LORD ATKIN said;

“The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its cohesive power where that has been obtained only by a failure to follow any of the rules of procedure.”

The first legal consequence is that, in terms of s 24 of the Supreme Court Act [Chapter 7:13] the judgment ensuing from such a determination is recorded in the court or tribunal of first instance and such judgment may be enforced in all respects as if it had been given by that court or tribunal. Second, the Court becomes functus officio, having effectively discharged its appellate mandate.  It would not ordinarily have the authority to alter, correct or supplement its decision.  As stated in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-G:

“The general principle, now well 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 it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased. See West Rand Estates Ltd. v New Zealand Insurance Co. Ltd., 1926 AD 173 at pp. 176, 178, 186 - 7 and 192; Estate Garlick v Commissioner of Inland Revenue, 1934 AD 499 at p 502.”

The above principle has been underscored by the courts in this jurisdiction with unwavering reverence in numerous cases.  See  Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S)at 364B; Harare Sports Club & Anor v United Bottlers Ltd 2000 (1) ZLR 264 (H) at 267D; Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S) at 489 and Unitrack (Pvt) Ltd v Telone (Pvt) Ltd S–10–18 at 4.

That brings me to the third, and most important consequence, namely that a decision of the Supreme Court that has been rendered on the merits in a non-constitutional matter is final.  I need not do more than refer to the leading case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CCZ–11–18:

“The principles that emerge from s 169(1) of the Constitution, as read with s 26 of the Act, are clear. A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.”

See also Denhere v Denhere CCZ–9–19 at 23; The President of the Senate & Ors v Gonese & Ors CCZ–1–21 at 11 and Mbatha v National Foods (Pvt) Ltd CCZ–6–21 at 11.

I have alluded to the position that where an appellant does not appear to prosecute his or her appeal, this Court may decide to determine the appeal or dismiss it.  I also stated that this decision is bounded by a judicious exercise of discretion.  The Court takes into account the interests of justice by looking at a number of indicia such as the complexity of the appeal; the detailedness of the heads of arguments, if any; the merits of the appeal and the need for finality to litigation.  In respect of the last factor public policy demands that litigation should, generally, be preserved rather than eroded. See the Firestone case (supra) at 309A.

Taken together the above considerations coalesce into one principle.  A decision of the Supreme Court determined in terms of r 53(3) of the Rules in a non-constitutional matter is a final decision that is not ordinarily susceptible to a rescission.  Such a decision emanates from the court’s exercise of its final jurisdiction.  Since the Court would have pronounced itself on the merits of the appeal, the remedy of rescission cannot be relied on to undo the court’s proper exercise of its discretion under r 53(3) and appellate jurisdiction. Thus, in Bonde v National Foods Limited S–53–22 at 8, Uchena JA aptly summed up the principle as follows:

“It should therefore be noted that unprocedural applications for the rescission or setting aside of this Court’s final judgments should not be entertained as this offends against the principles of finality and functus officio.

In terms of s 25 of the Supreme Court Act the Supreme Court’s review powers are limited to reviewing proceedings of inferior courts, tribunals and administrative authorities. ....

It is therefore trite that the Supreme Court’s decisions are final and cannot be reviewed. The Supreme Court itself has no power to review its own decisions. After determining a matter it becomes functus officio.”

SYNTHESIS

It is common cause that this Court issued judgment in SC 443/21 after electing to exercise its discretion to determine the appeal on the merits.  From a reading of the judgment in Rita Marque Mbatha v Vincent Ncube & Anor S–109–22, that election was based on the fact that the applicant was in willful default despite having knowledge of the setdown of the appeal hearing. That discretion was made on strength of the Rules.  As already discussed, the determination of the appeal on the merits had juridical consequences.  Upon rendering the judgment, this Court became functus officio and its judgment brought to finality the dispute between the applicant and the respondents.  Accordingly, that judgment could not be rescinded as the applicant sought to do.

The applicant’s case was compounded by the fact that this Court indicated that the reasons for its judgment on the merits would be provided in due course.  The applicant ought to have waited for the reasons for the judgment before filing this application for rescission of the judgment.  See MM Pretorius (Pvt) Ltd & Anor v Mutyambizi S–39–12.  A reading of the reasons for judgment would have made it self-evident to the applicant that the appeal in SC 443/21 was definitively determined on the merits in accordance with the rules of this Court.  The Court’s judgment, thus, attained the status of immutable finality. Therefore, for the reason that the applicant did not attach the judgment of the court under SC 443/21 nor relate to its reasoning, her application was procedurally afflicted.

I am aware that the applicant, relying on the authority of Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S), contended that the judgment of the Court was a default judgment, which is not final in effect and may be rescinded.  In that case this Court expressed the view that even where the merits have been determined with the applicant being in default, the decision of the court remains a default judgment which is not final and can be rescinded.  The Zvinavashe case is distinguishable.  This is because this Court is empowered by r 53(3) to determine an appeal in the absence of an appellant.  Hence, a determination on the merits by this Court in a non-constitutional matter, which determination is made in terms of r 53(3), is final in effect and cannot be rescinded.

DISPOSITION

By this application the applicant embarked on the process of taking the Court on a merry-go-round over issues the Court had already engaged and pronounced itself on.  This is a Court whose decision on the substantive issue is final and definitive.  There was no substantive law in terms of which she was entitled to seek the rescission of a final judgment.  It is trite that any proceedings that are wrong and bad in law are susceptible to dismissal.  See Ahmed v Docking Station Safaris (Pvt) Ltd S–70–18. The application, though it was compliant with the Rules, did not make a case for the relief sought, was demonstrably without merit, wrong and bad in law and  stood to be dismissed.

It is for the foregoing reasons that we dismissed the application as stated at the outset of this judgment.

GWAUNZA DCJ	:  	I agree

KUDYA JA		:	I agree