Judgment record
Justice Chengeta N.O and Commissioner General of Police and Police Service Commission and Minister of Home Affairs v Tymon Tabana
HH 23-18HH 23-182018
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HH 23-18
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JUSTICE CHENGETA N.O
and
COMMISSIONER GENERAL OF POLICE
and
POLICE SERVICE COMMISSION
and
MINISTER OF HOME AFFAIRS
versus
TYMON TABANA
HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 17 January 2018
Opposed Application
S. M Hashiti, for the applicant
O. Marwa, for the respondent
CHIGUMBA J: “Vigilantibus non dormientibus jura subveniunt-the law will help the vigilant
not the sluggard”. See Ndebele v Ncube 1. This is an application for rescission of judgment in
which the relief sought is the setting aside of the judgment of 21 December 2016, handed down
by this court under case number HC11456-16. The application is brought in terms of both r 63
and r 449 of the rules of this court, as well as the common law according to the notice of
application filed of record on 26 January 2017. The order granted under HC11456-16, which is
the subject matter of this application, reads as follows:
1. It be and is hereby declared that the applicant has a constitutional right as set out in s 55
and 64 of the Constitution of Zimbabwe not to perform forced labour, and freedom of
profession, trade or occupation by being denied the right to retire upon reaching
pensionable service.
1
1992 (1) ZLR 288 (S)
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2. The respondents’ conduct of barring the applicant from retiring from the police service
on reaching pensionable age be and is hereby declared unlawful.
3. The radio signal dated 9 November 2016 directing the arrest of the applicant be and is
hereby declared unlawful, null and void, and of no effect.
4. The bonding agreement which the applicant and the 2 nd respondent signed in 2010 be and
is hereby declared unenforceable.
5. The respondents shall pay the costs of this application on the higher scale of attorney and
client, jointly and severally, the one paying the other to be absolved.
The founding affidavit was deposed to by Ms O. Zvedi, a deputy director in the Civil
Division of the Attorney General’s Office, who averred that she had firsthand knowledge of this
procedural application. She averred further, that this application was made in terms of r 63 as
read with r 449 of the rules of this court, as well as the common law, and that;-the default
judgment sought to be set aside came before this court via the urgent chamber book. The
declaratur which was granted affects the applicant’s operations and administrative programmes,
since more than half the police force is on study leave. The order granted was obtained
fraudulently and wrongfully because the interim relief ought not to have been confirmed on the
same papers as the final relief, therefore the procedure adopted was not correct. The applicant
was only obliged to oppose the confirmation of the interim relief granted upon being served with
a fresh application for a confirmation order.
It was denied that the applicant was in willful default since the parties had
communicated and agreed that there was no need to get the declaratur granted by the court. The
respondent’s discharge was subsequently approved as a direct result of out of court engagements.
Respondent manipulated his knowledge of the applicant’s administrative set up to give the
impression that papers had been served on the applicant when in fact they had not. The final
relief granted is unacceptable to the applicant because it implies that applicant’s policy
deliberately and intentionally violates two sections of the Constitution, when the applicant owes
its very existence to the same Constitution. A declaratur of unconstitutionality was not the best
way of resolving the dispute between the parties.
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The opposing affidavit was filed of record on 7 February 2017, and it was deposed to by
the respondent who made the following averments;- the third respondent, the Police Service
Commission was not opposed to his retirement and was in the process of expediting it, therefore
the application for the rescission of the judgment in which his constitutional rights were declared
to have been violated was ill conceived and doomed. Annexures A1-A3 were attached as proof
of this averment. He denied that the confirmation order set out herein was fraudulently or
wrongfully obtained. The interim order was served on the applicants on 23 November 2016.
Subsequently, a new draft order seeking a final order was filed and served on the applicants. The
interim relief granted on 23 November 2016 gave the applicants ten days within which to file
opposing papers. The applicants acted sluggardly and are now trying to pull wool over the
court’s eyes. He denied manipulating his knowledge of applicant’s administrative set up to make
it appear as if he had served papers correctly and reiterated that papers were indeed served
correctly on the applicant. The respondent averred that the applicants were not above the law of
the Constitution and that, they were correctly reminded of the need for their policies to comply
with the provisions of the Constitution.
The answering affidavit was filed of record on 1 March 2017. It averred that the contract
between the third applicant and the respondent was a standard one which applied across the
board to all beneficiaries of study arrangements in the police force. To that extent the judgment
which is sought to be rescinded is of national importance as it impacts seriously on the
applicant’s operations. The applicant insisted that it was not in willful default due to perceived
anomalies in the manner of service of the application for confirmation of the provisional order on
its premises by the respondent. The applicant averred that it was in the interests of justice that the
real dispute between the parties be ventilated on its merits. Mr Sylvester Hashiti, an advocate and
an officer of this court, filed an affidavit on 1 March 2017 in which he denied the averments
which appear in the opposing affidavit and which refer to him and the alleged role which he
played in the service of the application for a confirmation of the interim relief.
After reading both parties’ heads of argument, I was convinced that the issue which arises
for determination before this court is not one of whether the applicant was or was not in willful
default and therefore entitled to rescission of the judgment sought to be impugned. The issue that
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firstly arises for determination is that of whether the applicant is properly before the court. I will
proceed to set out an excerpt of views which I have expressed before in two previous judgments
of mine. This excerpt is from the case of Godknows Jonas v Rhona Shawlyn Mabwe2. In that
case, it was stated that:
“The rules of this court also provide for correction, variation or setting aside of judgments in
terms of Order 49 r 449, and in terms of the common law. In the case of Motor Cycle (Pvt) Ltd v
Old Mutual Property Investments Corporation Ltd3 HH 4/07 @ pp 5-6, this court stated that:
“… Mr Mushonga submitted that the applicant was seeking rescission in terms of r 449
as read together with Order 9 r 63. Firstly, applicant does not refer to r 63 in its pleadings.
Rule 63 was first mentioned in the oral submissions and therefore was not pleaded.
Secondly, I am not sure whether the two rules can be read together. It is my view that
there are three separate ways in which a judgment in default of one party may be set
aside. This can be done in terms of r 63, or r 449 (1) (a) or in terms of the common law’”.
It is my view that, in order to qualify for relief under r 449 (1) (a) a litigant must show
that:
1. the judgment was erroneously sought or erroneously granted.
2. the judgment was granted in the absence of the applicant or one of the parties;
3. the applicant's rights or interests were affected by the judgment. See Mutebwa v Mutebwa
and Anor 4.
4. there has been no inordinate delay in applying for rescission of the judgment.
It is my view that, in order to qualify for relief under r 63, a litigant must show that:
1. Judgment was given in the absence of the applicant under these rules or any other law.
2. The application was filed of record within one calendar month of the date when applicant
acquired knowledge of the judgment.
3. Condonation of late filing has been sought and obtained where applicant fails to apply for
rescission within one month of the date of knowledge of the judgment.
2
HH72-16
3
HH 4/07 @ pp 5-6,
4
2001 (2) SA 193
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4. There is “good and sufficient cause” for the granting of the order. See Viking Woodwork
v Blue Bella Enterprises 1988(2) ZLR 249 (S) @ 251 B-D, Highline Motor Spares 1933
(Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S) @ 516 C-E, 518A-B,
Sibanda v Ntini 2002 (1) ZLR 264 (S), Pastor Jameson Moyo & 3 Ors v Reverend
Richard John Sibanda & The Apostolic Faith Mission SC 6/10.
5. The phrase ‘good and sufficient cause’ has been construed to mean that the applicant
must:
(a) give a reasonable and acceptable explanation for his/her default;
(b) prove that the application for rescission is bona fide and not made with the
intention of merely delaying plaintiff's claim; and
(c) show that he/she has a bona fide defense to plaintiff's claim. See Songore v Olivine
Industries (Pvt) Ltd 1988 (2) ZLR 210)
It is also my view that, in order to qualify for relief in terms of this court’s common law
power to rescind its own judgments a litigant must show that:
1. The court’ discretion that it is being asked to exercise is broader than the requirements of
both rr 449 and 63.
2. Whether, having regard to all the circumstances of the case, including applicant’s
explanation for the default, this is a proper case for the grant of the indulgence. See
Gondo & Anor v Stfrets Merchant Bank Ltd 1997 (1) ZLR 201, and de Wet & Ors v
Western Bank Ltd 1979 (2) SA 1031 @ 1043 ( I have expressed these views before in one
of my previous judgments Jonas Mushosho v Lloyd Mudimu & Anor5)
The applicant purports to bring this application in terms of r 449 as read with r 63 of the
rules of this court as read with the common law. In para 5 of the founding affidavit we find the
curious averment that, in addition to these two rules of this court, the application for rescission of
default judgment is made in terms of the common law “ex abundante cautella” and to avoid
multiplicity of causes. Herein lies the fatal defect that is bedeviling this application, in my
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respectful review. The applicant is not at liberty to throw the whole kitchen sink at the court and
ask the court to guess which dishes need washing and which ones need drying. Quite obviously,
the ingredients and equipment used in the washing process differs significantly from those used
in the drying process. One cannot wash dishes if there is no washing powder provided for
instance. Kitchen analogies aside, the first thing to note is that, none of the averments necessary
to bring the applicant properly before the court in terms of the common law, r 63, and or r 449
were set out in the founding affidavit.
To illustrate this point let us begin with r 449. There is no averment in the founding
affidavit that the judgment which is sought to be impugned was erroneously sought or
erroneously granted, or that, the judgment was granted in the absence of the applicant or one of
the parties; or that, there has been no inordinate delay in applying for rescission of judgment.
These are all essential averments which must be made in order for an applicant to qualify for the
relief granted under r 449. The only thing which the applicant tells us in the founding affidavit is
that its rights were affected by the judgment. We conclude that applicant has not set out the
necessary averment to qualify to use r 449 as a sword.
Does the applicant meet the criteria to be entitled to use r 63 as a sword? The applicant
averred correctly in its founding papers that judgment was given in its absence under these rules
or any other law. There is no averment that the application was filed of record and set down for
hearing within one calendar month of the date when applicant acquired knowledge of the
judgment. This renders an application in terms of r 63 fatally defective. There is no averment that
condonation of late filing has been sought and obtained where applicant fails to apply for
rescission within one month of the date of knowledge of the judgment. (Viking Woodwork
supra) There is no averment that there is “good and sufficient cause” for the granting of the
order. (Highline Motor Spares supra). Although an explanation was proffered for the default I
did not find it reasonable or acceptable. No evidence was adduced, other than a bald assertion,
that the respondent somehow obtained papers to make it look like it had served the application
for confirmation of the provisional order when he had not done so.
Even Mr Hashiti dissociated himself from certain averments made which mentioned his
alleged role in this saga. There was no averment that the application is bona fide and not made
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for purposes of delay. What was worrying was the lack of response to the respondent’s averment
that the third respondent was not opposed to the order sought to be impugned, and that in fact he
and the third respondent had come to accommodation. To compound matters, in my respectful
view, the order sought to be impugned is unassailable. The applicant has zero to no chance of
winning the matter on the merits, therefore has no bona fide defence, and another of the essential
averments of an application in terms of r 63 is again not met, that of establishing “good and
sufficient cause”.
This leaves applicant to clutch at the good old common law, perhaps not as a sword, but
as a shield? It is trite that, in terms of the common law remedy which allows judgments to be
rescinded, the court’s discretion that it is being asked to exercise is broader than the requirements
of both rr 449 and 63. The court must determine whether, having regard to all the circumstances
of the case, including applicant’s explanation for the default, this is a proper case for the grant of
the indulgence. It is this court’s considered and respectful view that, for all the reasons already
set out in respect of rr449 and 63 above, this is not a proper case for the grant of the indulgence.
It is this court’s view that, if applicant has specifically and expressly relied on the common law
broad power to be granted rescission as an indulgence pure and simple, it might have stood a
better chance of having this court’s discretion exercised in its favor. The fact that the third
respondent, which is the applicant’s principal is not opposed and indeed has settled the matter in
favor of the third respondent moves the applicant away from the moral high ground (this matter
is of national importance) and leaves it clutching at straws.
We are left with an application which has not been properly pleaded, which fails to
establish the requirements of the alternative rules of this court which we were invited to elect and
choose from. This application fails to find traction even in the good old common law. The
applicant cannot be shielded it from an ill-conceived, procedurally defective founding affidavit
which does not qualify to entitle the applicant to have an applicant for rescission of judgment
ventilated. There is no application for rescission of judgment before us, not in terms of r 449, or r
63, or the common law. The necessary averments do not appear in the founding affidavit. This
application is fatally defective. It fails for that reason. It is dismissed for that reason, and for the
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other reasons set out above. It therefore be and is hereby ordered that the application is dismissed
with costs.
Civil Division of the Attorney General’s Office, applicant’s legal practitioners
Rubaya & Chatambudza, respondent’s legal practitioners