Success Auto (Private) Limited & 3 Ors v FBC Bank Limited & 4 Ors

### Preamble
1
HH 583/25
HCH1530/25
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SUCCESS AUTO (PRIVATE) LIMITED

and

HONEYPOT INVESTMENTS (PRIVATE) LIMITED

and

DOUGLAS MAKONESE

and

MERCY MAKONESE

versus

FBC BANK LIMITED

and

MUNYARADZI YUJINI MAJONI

and

PAULINA KWADZANAYI MAJONI

and

CLAITOS CHIDHAKWA

and

GIRLIE KANYE

HIGH COURT OF ZIMBABWE

MUSHURE J

HARARE, 1 October 2025

Correction of judgment

MUSHURE J:

The applicants in this matter have filed a chamber application seeking the correction and or rescission of the operative part of a judgment I handed down on 21 March 2025 under judgment number HH196-25.

The operative part of that judgment reads as follows: -

The chamber application for judgment succeeds in part.

Judgment be and is hereby entered against the 1st, 2nd, 3rd and 4th Respondents, jointly and severally, the one paying the others being absolved, in case number HC361/13, as follows:

for payment of the sum of US$454 874-62 together with interest thereon at the rate of 35% per annum from the 1st August 2013 to date of payment; and

for payment of costs of suit both in respect of this matter and also in respect of case number HC361/13 on the legal practitioner and client scale.

Stand 80 Borrowdale Brook Township of Subdivision H of Borrowdale Brook of Borrowdale Estate measuring 5, 0445 hectares in extent and held by 2nd respondent under Deed of Transfer No. 6099/99 dated 30th June 1999 be and is hereby declared not specially executable.

In respect of the fifth to the eighth respondents, there shall be no order as to costs.

In this application, the applicants seek the following relief:

The chamber application be and is hereby allowed.

The order of this Honourable Court granted in R-HCH7402/13 on 21st of March 2025 be and is hereby rescinded and corrected by deletion of paragraph 2 of the said order.

The order shall henceforth read :-

The chamber application for judgment succeeds in part.

Stand 80 Borrowdale Brook Township of Subdivision H of Borrowdale Brook of Borrowdale Estate measuring 5, 0445 hectares in extent and held by 2nd respondent under Deed of Transfer No. 6099/99 dated 30th June 1999 be and is hereby declared not specially executable.

In respect of the fifth to the eighth respondents, there shall be no order as to costs.

The application is not opposed by the respondents.

By way of background, the main matter was placed before me upon remittal from the Supreme Court under SC151/23. The Supreme Court directed that: -

“The appeal be and is hereby allowed.

Paragraph 2 of the judgment of the High Court per Ndewere J in case number HC3727/18 be and is hereby set aside.

The 1st, 2nd, 3rd and 4th respondents be and are hereby joined to the proceedings under HC7402/13 as the 5th, 6th, 7th and 8th respondents respectively.

The 1st, 2nd, 3rd and 4th respondents be and are hereby granted leave to oppose the proceedings under case number HC7402/13 to the extent that the appellant seeks to have stand number 80 of Borrowdale Township declared specially executable.

Each party pays its own costs.”

The issue that arose for my determination in that matter related to the question of whether or not a certain piece of land, being stand number 80 Borrowdale Road could be declared specially executable. However, in issuing the order, I included a portion of an extant order of the court already issued by Takuva J.

When this application was placed before me, I noted that it was not clear  under what rule the application had been made. Reading through the application, I could not decipher whether the applicants were making the application in terms of Rule 29 (1)(a) or Rule 29 (1) (b) of the High Court Rules. I requested parties to file Heads of Arguments on this issue and on the course of action to take in the event that I was inclined to grant the application, since the parties were not agreed as to whether I should correct the whole judgment or the operative part of the order which the applicant was seeking correction of.  I am grateful to counsel for filing the Heads of Argument, albeit belatedly in respect of the applicant and the first respondent.

Rule 29 of the High Court Rules, 2021 provides that:-

29. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary—

(a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) an order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) an order or judgment granted as a result of a mistake common to the parties.

The position of the law as stated by Makarau J (as she then was) in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H) at p. 472D is that the purpose of r29 is to enable the court to revisit its orders and judgments in order to correct or set aside its orders or judgments given in error, in situations where to allow such orders or judgments to stand on the excuse that the court has become functus officio would result in an injustice and would destroy the very basis upon which the justice system rests. Rule 29 is an exception to the general rule which must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way. Rule 29 allows the court to correct, rescind or vary its order granted in error, whether upon application or on its own initiative on notice to the parties to the judgment.

I am in agreement with the parties that this is an appropriate case where the court should exercise its powers in terms of r29 on the basis that there is already a similar and extant order of this court relating to the payment of the capital sum, interest and costs of suit. I am of the view that if the duplicated portion of the order were allowed to stand, it would result in an injustice. On a proper reading of my judgment, it is clear that the sole focus was on whether or not Stand 80 of Borrowdale Township could be declared specially executable. The deletion of paragraph 2 of the Order will therefore not alter the sense and substance of the judgment I made on 21 March 2025. I am therefore inclined to grant the order correcting the order to the extent that it relates to an extant order of this court so that it reflects the correct intention of the court.

The  parties in this matter are however not agreed as to the course of action I should take. The applicants have sought rescission and correction of my order by deletion of paragraph 2 thereof which relates to the extant order by Takuva J. The second to the fifth respondents seem to be in agreement with the applicant’s proposed course of action. It appears to me that the first respondent is suggesting that I correct the whole judgment and issue what it terms a ‘correct version’ of the judgment.

The issue that confronts me is not novel in this jurisdiction. The court was confronted with a similar situation in Hopcik Investments (Pvt) Ltd v Minister of Environment, Water & Climate & Anor HH336-16, the judgment which has been cited by all the parties to this matter. In that case, the court issued an order correcting the operative part of the judgment. It did not issue a corrected version of the judgment as suggested by the first respondent. The order of the court in that matter reads:

“Accordingly the order granted under HH 137/16 is amended to read as follows:

1. The 1st and 2nd respondents, jointly and severally, shall ensure a supply of potable water to applicant’s premises, being 33 Tynwald Close Ballantyne Park, of 15 000 litres within three months of this order and thereafter to continue to supply such quantity of water on a weekly basis.

2. Should the respondents through no fault of their own be unable to supply the water for any given period they may make an application to this court for a variation of this order during that period. Such a request shall not be made to the court unless a request for such variation is first made to applicant and applicant has unreasonably refused to grant that request.

3. The respondents are to bear the costs of this application.”

I do not have any reason to depart from the course of action which the court followed in the Hopcik case. In any event, a reading of the relief sought by the applicant shows that they are seeking the deletion of paragraph 2 of the Order which I issued under HH196-25.

Accordingly, it is ordered as follows:

The chamber application be and is hereby allowed.

The order of this Honourable Court granted under HH196-25 on 21 March 2025 be and is hereby corrected to read as follows

The chamber application for judgment succeeds in part.

Stand 80 Borrowdale Brook Township of Subdivision H of Borrowdale Brook of Borrowdale Estate measuring 5, 0445 hectares in extent and held by 2nd respondent under Deed of Transfer No. 6099/99 dated 30th June 1999 be and is hereby declared not specially executable.

In respect of the fifth to the eighth respondents, there shall be no order as to costs.

Mushure J: .................................................................

James Majatame Attorneys at Law, applicants’ legal practitioners

Dube, Manikai & Hwacha, first respondent’s legal practitioners

Moyo & Jera, second to fifth respondents’ legal practitioners