Carey Farm (Private) Limited v Sikona Farm (Private) Limited and Others

The applicant filed a chamber application on 20 December 2013 seeking rescission of a judgment granted in default against it in case HC 9801/12. The application was based on the ground that judgment had been granted in error. The first and second respondents filed opposing papers on 12 December 2013, but these papers did not comply with the High Court Rules. Specifically, they failed to file a notice of opposition in Form 29A as required by Order 32 rule 233(1), and the papers exceeded five pages without proper indexing and pagination as required by Order 32 rule 227(2)(d). The third respondent did not oppose the application. The application was served on all respondents' legal practitioners on 13 January 2014. When the matter came before Chigumba J in chambers on 24 January 2014, there were no opposing papers in the record placed before the court. Mysteriously, a notice of opposition dated 17 January 2014 and answering affidavit dated 20 January 2014 later appeared in the original file after judgment had been granted.

• Whether the failure to file a notice of opposition in Form 29A as required by Order 32 rule 233(1) of the High Court Rules renders the opposing papers null and void
• Whether Order 32 rule 233 is couched in peremptory language that cannot be condoned by the court
• Whether the chamber application met the requirements of Order 32 rule 226(2)(e) regarding special circumstances justifying a chamber application
• Whether a judgment based on non-compliant opposing papers is void and should be rescinded
• Whether the failure to index and paginate opposing papers exceeding five pages as required by Order 32 rule 227(2)(d) constitutes a fatal defect

1. The notice of opposition filed by the 1st and 2nd respondents on 12 December 2013 under case number HC10178/13 was struck out from the record for non-compliance with the rules of court. 2. The judgment granted by Hungwe J on 5 June 2013 was rescinded. 3. The applicant was granted leave to file its appearance to defend within 10 days from the date of the order. 4. Costs to be in the cause.

Order 32 rule 233(1) of the High Court Rules, which requires a notice of opposition to be filed in Form 29A, is couched in peremptory language that cannot be condoned by the court. Failure to file a notice of opposition in the prescribed form results in the respondent being barred in terms of rule 233(3). Once a respondent is barred and there is no viable opposition before the court, any order or judgment premised on non-compliant opposing papers is a nullity and void ab initio, being vitiated by fundamental irregularity. All acts done in breach of a statutory direction that is peremptory are null and void.

The court observed that the applicant could have relied on the provisions of rule 226(2)(d)(i)-(iii) in addition to rule 226(2)(e) to justify the chamber application, as the respondents had been served with notice and were in default, and all interested parties were parties to the application. The court noted with concern that opposing papers mysteriously appeared in the file after judgment had been granted, which papers had not been placed before the judge when the matter was considered in chambers. The court also mentioned that the applicant had challenged the authority of the deponent to the respondents' affidavit for lack of a board resolution, though this point was not determinative of the matter.

This case establishes important principles regarding strict compliance with the High Court Rules in Zimbabwe, particularly concerning the form and content requirements for notices of opposition. It confirms that certain procedural rules are peremptory and cannot be condoned by the court, and that failure to comply with such rules renders the non-compliant papers null and void. The case reinforces the principle that judgments based on fundamentally irregular or void papers are themselves void ab initio. It also provides guidance on when chamber applications are appropriate under Order 32 rule 226(2)(e) and the consequences of being barred under rule 233(3).