Mboma v Kambarami and Another (540 of 2022) [2022] ZWHHC 540 (10 August 2022)

Mboma v Kambarami and Another (540 of 2022) [2022] ZWHHC 540 (10 August 2022)

The application was improperly brought under rule 449(1)(a) as the alleged error did not fall within the scope of that rule. The applicants failed to establish that the default judgment was erroneously granted in their absence, as the court relied on certificates of service indicating service on Boaz at the mining site. There was no evidence of collusion or false service, and the proper procedure would have been to proceed under rule 63.

Citation
[2022] ZWHHC 540
Parties
Applicant: Wilfred Mboma; Applicant: Kuda Kambarami; Respondent: Gauteng Mining Syndicate
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
10 August 2022
Case Number
540 of 2022
Procedural Posture
Opposed Application / Ruling on Application to Set Aside Default Judgment
Outcome
Application struck off the roll
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Mining Law
Source Language
English
Civil Procedure Rescission of Judgment Default Judgment Service of Process Mining Law

Case Brief

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Parties

Wilfred Mboma

Applicant

Kuda Kambarami

Applicant

Gauteng Mining Syndicate

Respondent

Procedural Posture

Opposed Application / Ruling on Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted in the absence of the applicants under rule 449(1)(a)
  2. 2 Whether the application for rescission was properly brought under rule 449(1)(a) instead of rule 63
  3. 3 Whether there was valid service of the urgent chamber application and notice of set down on the applicants

Ratio Decidendi

The application was improperly brought under rule 449(1)(a) as the alleged error did not fall within the scope of that rule. The applicants failed to establish that the default judgment was erroneously granted in their absence, as the court relied on certificates of service indicating service on Boaz at the mining site. There was no evidence of collusion or false service, and the proper procedure would have been to proceed under rule 63.

Court Disposition

Application struck off the roll

Orders

  • The application is struck off the roll.
  • The applicants shall pay the respondent’s costs of suit.