Amer Khan v Innocent Muchenje and Charm Muchenje

The applicant instituted action proceedings against the respondents in HC 2816/10 claiming GBP 39,848.00. The defendants filed a Special Plea and Exception which the applicant did not respond to. The matter was set down on the unopposed roll and on 11 August 2010 the Special Plea and Exception were upheld and the plaintiff's claim was dismissed with costs. In a separate matter HC 7205/10, the first respondent claimed delivery of the original Deed of Transfer from the applicant. The first respondent applied for summary judgment. The applicant filed a "Respondent's Opposing Affidavit" but did not file a notice of opposition. The respondent's legal practitioners advised the applicant's legal practitioners of procedural problems, but there was no response. The matter was set down on the unopposed roll and summary judgment was granted on 9 March 2011. On 23 March 2011, the applicant approached the court to set aside both default judgments, claiming his erstwhile legal practitioners (Messrs Chigwanda Legal Practitioners) had not been served with notices of set down.

• Whether the application for rescission should be brought under Rule 63 or Rule 449 of the High Court Rules
• Whether there was an error in granting the default judgment in the money claim (HC 2816/10)
• Whether there was an error in granting the summary judgment order (HC 7205/10)
• Whether an exception can be set down on the unopposed roll when no opposition is indicated
• Whether failure to file a notice of opposition with an opposing affidavit is fatal to the opposition
• Whether the application was brought expeditiously as required under Rule 449
• What is the proper procedure for setting down exceptions under Rule 138 and Rule 223

The application for rescission of both default judgments was dismissed with costs.

An application must stand or fall on its founding papers and a party cannot change the legal basis of the application from Rule 63 to Rule 449 only in heads of argument. Where no opposition to an exception is indicated to the court and the other party, there is no error in treating the matter as unopposed and setting it down accordingly under Rule 223(1) rather than Rule 223(2). Failure to file a notice of opposition with an opposing affidavit is not necessarily fatal, but creates an irregular pleading that may be struck out. An application under Rule 449 must be brought expeditiously, and courts will exercise discretion to refuse relief where there are unreasonable delays, even if the technical requirements are met. Rules of court are practical tools for proper administration of justice and should not be applied with slavish formalism.

The court observed approvingly the principle from Scottish Rhodesian Ltd v Honiball that courts should not be slaves to their own rules and sensible arrangements should not be sacrificed on the altar of slavish obedience to the letter of the rules. The court noted that the purpose of Rule 449 is to enable the court to revisit its orders to correct injustices that cannot be corrected in any other way, going beyond mere formal, technical and clerical errors. The court commented that the drafters of the rules could not have intended every exception to be set down as an opposed matter under Rule 138, as this would lead to absurdity and adversely interfere with the administration of justice. The court suggested that even if an application on notice to strike out an irregular pleading is the "preferable course," it is not the only permissible course, and an application on an unopposed basis disclosing the irregularity is also acceptable.

This case clarifies important principles of Zimbabwean civil procedure regarding: (1) the distinction between Rule 63 and Rule 449 rescission applications and the requirement that the cause of action be clearly pleaded in founding papers; (2) the procedure for setting down exceptions where no opposition is indicated - establishing that exceptions need not automatically be treated as opposed matters requiring set down under Rule 223(2); (3) the principle that failure to file a notice of opposition is not necessarily fatal where an opposing affidavit has been filed; (4) the requirement that Rule 449 applications must be brought expeditiously and that courts will exercise discretion to refuse relief where there are undue delays; and (5) the overarching principle that courts should not be slaves to procedural rules but must balance procedural regularity with the interests of justice and efficient court administration.