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HB 157/18
HC 3336/17
X REF HC 2367/17
TRADEPASS MARKETING SERVICES (PVT) LTD
t/a AGRISEC ENVIRONMENTAL HEALTH
Versus
OK ZIMBABWE
And
THE DEPUTY SHERIFF
IN THE HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 15 & 21 JUNE 2018
Dr De Souza in person
P. Madzivire for 1st respondent
Opposed Application
MAKONESE J: The first respondent avers in its Heads of Argument that:
“This is one of the most unfortunate applications which this honourable court has to deal
with. This is sad in light of the fact that the application is frivolous, erroneous, badly
drafted and the application itself is very alien to both the court and the founding rules of
the court.”
I cannot help, but agree with these observations regarding the application before the
court. The cover of the application refers to the application, as an application for rescission of
judgment. The lengthy founding affidavit is argumentative and rumbling in nature. It is not
clear what the applicant seeks or the basis of the relief being sought. The application simply
attacks the findings of a judge of this court in a manner that does not make the case clear at all .
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HB 157/18
HC 3336/17
X REF HC 2367/17
This is indeed unfortunate. I shall not delve into what are clearly unnecessary attacks on the
justice system but deal with the merits of this application, if any.
The 1st respondent has raised certain points in limine, which if sustained, would dispose
of the matter without further ado. I proceed, therefore, to deal with each of the preliminary
points.
Applicant adopted the wrong procedure
The applicant has clearly adopted the wrong procedure in that the judgment it seeks to
rescind was not granted in default. On 23 November 2017 M ATHONSI J delivered a written
judgment declining to grant default judgment in favour of applicant under case number HC
2367/17. The judgment was delivered under HB-371-17. Full and comprehensive reasons are
given by the learned judge why he declined to grant default judgment that had been sought by
way of a chamber application. The draft order in this present application appears on page 209 of
the bound papers and is in the following terms:
“1. Judgment entered in the chamber application for default judgment in case number
HC 2367/17 against the applicant be and is hereby rescinded, set aside in its
entirety.
2. The defence in HC 2367/17 is hereby dismissed for want of prosecution.
3. That judgment be and is hereby entered in terms of the order attached to the
summons in the High Court case number 2367/17.”
This application, though purporting to be an application for rescission of judgment is
simply a rumbling and wanton attack on the decision of this court. The procedure adopted by the
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HB 157/18
HC 3336/17
X REF HC 2367/17
applicant in this matter falls foul of the rules of the court. An application for rescission of
judgment is made to rescind the decision of the court on the basis that the other party defaulted
court proceedings or failed to attend court, or where a party fails to enter appearance to defend,
resulting in a judgment being entered in default. This is in terms of the Rules of the High Court
Rules, 1971, under Order 9 Rule 63. If the court is satisfied in an application for rescission of
judgment, that there is good and sufficient cause to do so, it may set aside the judgment
concerned and grant leave to the defendant to defend the action or suit. A perusal of the papers
filed by the applicant shows that the application does not meet the requirements of an application
for rescission of judgment as prescribed by the rules of this court.
Further, and in any event, an application for rescission of judgment must be accompanied
by the grounds which show good and sufficient cause why it should be granted. The decision of
Chetty v Law Society of Transvaal 1985 (2) SA 756 (A), lays down the essential elements of an
application for rescission of judgment.
The applicant in this matter has not laid out any good and sufficient reasons why it is
entitled to the relief sought. The applicant raises frivolous and embarrassing grounds, not
contemplated in terms of the rules that govern applications for rescission of judgment.
The application is not recognized in terms of the rules
All court applications should be brought in terms of the rules. An application for
rescission should therefore be made in terms of Form 29 and under Rule 230. The applicant’s
application is not recognized in terms of the rules of the court. One cannot ascertain what the
nature of the application is. The relief sought in the draft order is incomprehensible. Rule 230
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HB 157/18
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provides that a court application shall be in Form 29 and shall be supported by one or more
affidavits setting out the facts upon which the applicant relies. This application is alien to this
court and does not meet the prescribed form for seeking the relief sought. On this basis alone,
the court is entitled to dismiss the application with costs on a punitive scale.
Applicant not represented by a legal practitioner
In its opposing affidavit filed on 12 th January 2018, 1st respondent drew the attention of
the applicant to the fact that the applicant being a company ought to be represented by a legal
practitioner. It was also pointed out that Muriel De Souza, the deponent to the founding affidavit
did not refer to any Board Resolution authorising her to act on behalf of the applicant. The
applicant has ignored this advice and pursued its application inspite of the impropriety of this
application being raised formally in opposing affidavits. The applicant is a private limited
company, and where a company is bringing a suit before the High Court it must do so under the
assistance of a legal practitioner. That common law rule is part of our law, and this was noted in
the case of ; Lees Import and Export (Pvt) Ltd v ZIMBANK 1999 (2) ZLR 36 (S).
The rationale behind the rule is that it intends to limit frivolous proceedings being
brought before the court by litigants who lack the skill and legal expertise, and who may bring to
court legal proceedings that prejudice the company of its funds.
In the matter before me, this common law rule applies with equal force in that the
application is fraught with irregularities, which irregularities would not have been there if the
applicant had engaged the services of a legal practitioner.
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HB 157/18
HC 3336/17
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This application is bad at law. It is incurably bad. The whole application is premised on
attacks on the findings of a judge of this court. The application is ill-conceived, has no merit and
has been made in bad faith. If litigants are allowed to wantonly attack the judgments and
integrity of this court without just cause, the dignity of this court will be impugned. The
application is clearly an abuse of court process. The applicant ought to have taken legal counsel
on the matter before proceeding with this application. In order to show its displeasure with the
conduct of the applicant, this court shall order costs on a punitive scale. It is the view of this
court that the 1st respondent is entitled to recover its full costs.
In the result, the following order is made:
The application is dismissed with costs on an attorney-client scale.
Joel Pincus, Konson & Wolhuter, 1st respondent’s legal practitioners
