Chen Wang v Mandizha & Ors (HC 1838 of 2015) [2015] ZWHHC 517 (9 June 2015)

1 HH 517-15 HC 1838/15 CHEN WANG versus JOSEPH STEVE MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 28 May 2015 and 10 June 2015 Opposed Application P. C Paul, for the applicant F. G. Gijima, for the 1st respondent C. Warara, for the 4th respondent No appearance for the 2nd & 3rd respondents MUREMBA J: The applicant’s application is for rescission of a default judgment which was granted by MANGOTA J on 4 February 2015 in chambers. The application is being made in terms of r 449 although on the face of the application the applicant indicated that the application was being made in terms of r 249. Rule 249 deals with applications involving minors and persons under disability. In case number HC 9133/14 the applicant filed an application against the three respondents in this court. After the respondents had filed their opposing papers the applicant did not take any action. This prompted the first respondent to make a chamber application under case number HC 271/15 for the dismissal of the application for want of prosecution. On 4 February 2015 MANGOTA J granted the chamber application. MANGOTA J granted the judgment in default because although the applicant had opposed the first respondent’s application for dismissal of his application for want of prosecution the opposing papers had not found their way into the file. HH 517-15 HC 1838/15 When it later came to the attention of the applicant that a default judgment had been granted against him dismissing his application for want of prosecution his legal practitioner then wrote a letter to Judge MANGOTA on 18 February 2015 asking for the rescission of the default judgment. Attached to the letter was the applicant’s Notice of Opposition in issue. The legal practitioner wanted the judgment rescinded in terms of r 449 stating that they had filed opposing papers on 28 January 2015 before the default judgment was granted on 4 February 2015. It was averred that the default judgment had been issued erroneously. In response to the letter MANGOTA J wrote a judgment under judgment number HH 199-15 which judgment was delivered on 24 February 2015. He stated that instead of asking for rescission of judgment in terms of r 449 by way of a letter, the applicant ought to have made a proper application on notice to the other affected parties. It is this judgment by MANGOTA J which prompted the making of the present court application by the applicant. It is only the first and the fourth respondents who opposed this application. The second and third respondents did not file any opposing papers. The first and the fourth respondents raised 2 preliminary points to the application. The first one is that the application is bad at law because it is being made in terms of r 249 yet r 249 deals with applications involving persons with disability and minors. Mr Paul explained that he had made an error by stating that the application was being made in terms of r249 instead of r 449. It is clear that this was just an error which was made on the top cover of the application otherwise the application itself makes it clear that the application is being made in terms of r 449. The error is not fatally defective. The second preliminary point is that the order that is being sought by the applicant was dismissed by this court by MANGOTA J in judgment no. HH 199-15 which was handed down on 24 February 2015. These 2 respondents argued that as a result the matter is now res judicata and this court is now functus officio. They argued that the proper procedure for the respondent to follow is to appeal against the judgment of MANGOTA J. The applicant’s legal practitioner argued that MANGOTA J did not make a decision on the merits of the request to rescind the judgment in terms of r 449 having stated that a proper court application done on notice to all the other interested parties ought to have been made. He argued that MANGOTA J did not deal with the merits of the request because he stated that the matter had been placed before him improperly. He further argued that as a result this matter was not res judicata. HH 517-15 HC 1838/15 Looking at the judgment of MANGOTA J of 24 February 2015 I am inclined to agree with the first and fourth respondents that MANGOTA J made a determination on the applicant’s request for the default judgment to be rescinded in terms of r 449. Although MANGOTA J indicated in his judgment that the applicant ought to have made a proper court application on notice to the respondents he went on to make a determination on the merits of the request. I arrive at this conclusion because from p 3 in para 4 up to the end of the judgment he said, “In his opposing papers, the first respondent admitted paragraphs A, B1, B2 and B4 of the applicant’s affidavit. He also admitted that he filed his answering affidavit out of time after which he proceeded to chronicle his reasons for the delay. He apologised for the late filing of his answering affidavit and he, quite correctly, stated that he remained liable for the payment of the applicant’s costs. For some unknown and unexplained reasons, the first respondent did not file any answering affidavit. He, instead, filed his Heads of Argument under case number HC 9113/14. He filed those on 14 February 2014. As at the time of this judgment, no answering affidavit of the first respondent was filed of record. The court has considered the merits and demerits of the matter which the first respondent placed before it through the letter. It is satisfied that the first respondent’s case is devoid of any merits. The request which he made in the letter is not sustainable. In the resultant it is ordered that the order which the court granted to the applicant on 4 February 2015 under case number HC 271/15 be and is hereby not corrected, rescinded, varied or set aside”. These cited paragraphs speak for themselves that MANGOTA J made a determination on the request to rescind the default judgment. If he had not made a determination these paragraphs would not have appeared in his judgment. He would not have made a pronouncement that the order he granted on 4 February 2015 was not corrected, rescinded, varied or set aside. In my view he would have simply ended by stating that he was declining to determine the request for rescission on the basis that it had been improperly made as it had been made in the form of a letter instead of a court application and that it had been done without notice to the affected parties. MANGOTA J by saying, in his judgment, that, “the request which the applicant made in the letter is not sustainable”, means that he considered the contents of the letter and the opposing affidavit that had been attached to the letter and decided that they were devoid of any merit. If he had not made a determination he would not even have considered the contents of the letter and the opposing affidavit. He would not have commented on them at all. HH 517-15 HC 1838/15 It is for these reasons that I agree with the first and fourth respondents that MANGOTA J made a determination on the merits of the matter and refused to rescind the default judgment he granted on 4 February 2015. This renders the matter res judicata and makes this court functus officio. As correctly argued by the first and fourth respondents, it matters not whether or not the determination by MANGOTA J was wrong. The correct procedure for the applicant to take is to make an appeal if he is not happy with the decision. If I make a determination on the current application I will be reviewing MANGOTA J’s judgment. I have no such powers as this court cannot review its own work. I will not award costs on a legal practitioner- client scale against the applicant for I see no justification for doing so. In the result it is ordered that: 1. The applicant’s application be and is hereby dismissed. 2. The applicant be and is hereby ordered to pay costs to the first and fourth respondents on the ordinary scale. Wintertons, applicant’s legal practitioners F. G Gijima & Associates, 1st respondent’s legal practitioners Warara & Associates, 4th respondent’s legal practitioners