Rita Marque Mbatha v Farai Bwatikona Zizhou (2) Taxing Officer

### Preamble
Judgment No. SC 98/20
1
Civil Appeal No. SC 189/20
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DISTRIBUTABLE:       (88)

RITA     MARQUE     MBATHA

v

FARAI     BWATIKONA     ZIZHOU     (2)     TAXING     OFFICER

SUPREME COURT OF ZIMBABWE

KUDYA AJA

HARARE: 23 JUNE 2020

IN CHAMBERS

Applicant in person

First respondent in person

No appearance for the second respondent

KUDYA AJA: 	This is an application purportedly made in terms of r 73 of the Supreme Court Rules, 2018 as read with r 449 (1) (b) of the High Court Rules, 1971 for the correction of a judgment issued by a judge of this Court in chambers on 20 January 2020 in case number SC 562/19.

The facts

The applicant and the first respondent appeared before a judge of this Court in chambers in case No. SC 211/2019. The applicant was awarded an order for costs, which was subject to taxation by the second respondent. The parties agreed on the bill of costs, together with the bill of costs in other prior matters under SC 100/16 and HC 11 543/18, denominated in United States dollars. They duly presented the bill before the second respondent on 8 July 2009, who taxed it by affixing his signature thereon.

The applicant took out a writ of execution to recover the taxed costs denominated in United States dollars and presented it to the Sheriff for execution. The Sheriff, purportedly acting in terms of the provisions of the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations SI 33 of 2019 and the Reserve Bank of Zimbabwe (Legal Tender) Regulations 2019 SI 142/2019, mero motu, substituted the currency on the writs by the RTGS dollar and sought to execute in the substituted currency. This prompted the applicant to file an application in the High Court under HC 6746/19 seeking the setting aside of the substituted writs and the restoration of the original writs.

On 21 August 2019, the High Court granted an order by consent, which set aside the substituted writs and restored the original writs. Thereafter, the first respondent anticipated the execution of the writ in SC 211/19 by bringing an application for review in case no. SC 562/19 before a judge of this Court in chambers in terms of r 56 of the Supreme Court Rules 2018, to set aside the bill of taxed costs of 8 July 2019. He cited the taxing officer as the first respondent and the applicant as the second respondent. The present applicant opposed that application. It was common cause that, although the applicant had not raised the issue of res judicata in both her opposing affidavit and written heads of argument, she had done so in oral argument. The first respondent, however, succeeded. The judge in chambers made the following findings.

That SI 33 of 2019, which was published on 22 February 2019, introduced the RTGS dollar as a currency and legal tender at par with the bond note and the United States dollar.

That SI 142/19 was published on 24 June 2019 and prescribed the local currency as the sole legal tender for all local transactions conducted between local residents.

That the taxation of the bill of costs denominated in United Stated dollars by the taxing officer on 8 July 2019, was in contravention of the SI 142/19 and was therefore a nullity.

The learned judge of appeal in chambers proceeded to make the following order:

The bill of taxed costs in SC 211/19 is hereby set aside.

The second respondent shall bear the applicant’s costs of review.

The contentions

In the present application, the applicant seeks the setting aside of the order in SC 562/19 on the basis that the judge in chambers did not determine the issue of res judicata. She contended that the failure by the judge to recognize that the same subject matter and issue had been definitively determined between the parties by the High Court in HC 6746/19 constituted a patent error or material omission, which opened the judgment to correction under r 449 (1) (b) of the High Court Rules 1971.

The first respondent opposed the application and raised a preliminary point attacking the propriety of the application. He contended that the application constituted a disguised review against the judgment of a judge of the Supreme Court in chambers by another judge of the same court. He also opposed the application on the merits.

The relief sought

The applicant seeks the following order:

“WHEREUPON after hearing counsel and reading the documents filed of record:

The application succeeds with costs.

The judgment under Case No. SC 7/20 is reviewed and replaced with the following:

“The application under Case No. SC 562/19 of taxation in terms of r 56 of the Supreme Court Rules, 2018 is set aside with costs.”

The preliminary issue

The question raised for determination by the preliminary issue is whether I can entertain the present application. Paragraph 2 of the relief sought betrays the applicant‘s true intention. She does not seek a correction but a review of the judgment. I, therefore, agree with the first respondent that I am not empowered to review an order made by a judge of concurrent jurisdiction for two reasons. The first is that r 449 is meant for the correction of judgments or orders erroneously sought or erroneously granted and not orders or judgments that are erroneous in substance. The second is that a judgment of the Supreme Court, whether by a judge in chambers or of the full bench, in non-constitutional matters, is final and cannot be appealed or reviewed.

The first of these propositions is borne out by the case, which was cited by both parties in their written heads of argument, of Unitrack (Pvt) Ltd v Telone (Pvt) Ltd SC 10/18 at p 4-5, where this Court stated that:

“It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “functus officio” applies to the court or judicial officer concerned. Rule 449 is an exception to that principle and allows a court to revisit a decision that it has previously made, but only allows it in restricted circumstances. In Tiriboyi v Nyoni & Another HH 117/2004 the following was stated:

“The purpose of r 449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.”

It seems to me that r 449 is meant for the correction of orders erroneously sought or erroneously granted and not orders that are erroneous in substance. In the South African case of DA Weelson v Waterlinx Pool and Spa (Pty) Ltd (13904/2007) [2013] ZAPGJHC 47 (1 March 2013), the court was dealing with r 42 (1) (a) whose provisions are similar to those of our r 449. At para (5) the court stated:

“Rule 42 (1) provides that a court may of its own accord or upon application of any party affected by the order grant a rescission of the order or vary the order or judgment which has been erroneously sought or erroneously granted in the absence of any party affected thereby. The rule was introduced to cater for errors in judgment which are obviously wrong and are procedurally based.” (My emphasis)

The second proposition is derived from Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CCZ 11/18 at p 22, where the Constitutional Court said:

“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.”

And at p 23:

“The law of finality of decisions of the Supreme Court on non-constitutional matters applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court on a non-constitutional matter is itself a protection of the law. Once a decision is as a matter of fact a decision of the Supreme Court on a non-constitutional matter, no inquiry into its legal effect can arise. There would be no proof of infringement of a fundamental right or freedom as a juristic fact. It is enough for the purposes of the protection of finality and therefore correctness that the decision is on a non-constitutional matter.”	(My emphasis)

The principle espoused in the constitutional judgment is that judgments of the Supreme Court in non-constitutional matters are final. This, therefore, means that the judgment that the applicant seeks to impugn was final and cannot be reviewed. It is also clear from the sentiments expressed in the Unitrack case, supra, that r 449 was not designed to deal with corrections of judgments or orders that are purported to be erroneous in substance.

It is apparent to me that I do not have jurisdiction to review the substantive correctness of the judgment handed down in chambers by a judge of this Court in SC 562/19. It will, therefore, be inappropriate for me to consider the application on the merits.

Disposition

The application is accordingly struck off the roll with costs.