Christopher Murimba and Lynette Murimba v Dominic Saurombe and The Sheriff of the High Court of Zimbabwe N.O and Messrs Mambosasa Legal Practitioners

The applicants and first respondent purchased adjacent pieces of land (stands 321 and 322) in Gletwin Township, Harare through a land developer. The first respondent erroneously erected a structure covering 1,972m² on stand 322, believing it was his property. Upon discovering the mistake, parties entered into a written agreement on 20 December 2013 ('Commitment to rectify the error') to resolve the matter amicably, which required regularization through town planning authorities and shared payment of fees. Both parties defaulted on paying requisite fees. The applicants then issued summons in HC 9207/14 on 17 October 2014 seeking removal of the structure or alternatively payment of US$39,440.00 for the encroached area. Parties reached a final deed of settlement in September 2015 before MAWADZE J. On 17 February 2016, applicants filed a chamber application before MANGOTA J to register the deed but unilaterally severed the regularization clause. The court granted an order on 3 March 2016. The first respondent complied by paying US$39,440.00 into the applicants' legal practitioners' trust account in 2018. The applicants now seek rescission of the alternative portion of the judgment, claiming it was granted through an error common to both parties and that the property's current market value exceeds the agreed amount.

• Whether the judgment in HC 9207/14 was granted as a result of a mistake common to both parties under Rule 449(1)(c) of the High Court Rules 1971
• Whether the alternative order compelling payment for the encroached land was capable of performance without compliance with section 39(1) of the Regional Town and Country Planning Act [Chapter 29:12]
• Whether applicants could seek rescission of an order they themselves sought and enforced
• Whether the doctrine of fictional fulfillment applied to the first respondent's payment into trust

1. The application is dismissed. 2. Applicants to pay party to party costs.

A court order will not be rescinded under Rule 449(1)(c) of the High Court Rules 1971 (now Rule 29) on grounds of mistake common to both parties where: (1) the impugned portion of the order was deliberately sought by the applicant who unilaterally severed other provisions from a settlement agreement; (2) the applicant cannot demonstrate a genuine common mistake but rather seeks to escape an order that has become economically disadvantageous; (3) the applicant has already enforced the order and the other party has complied with it; and (4) the applicant failed to challenge the order by way of review or appeal within the prescribed time. A party who unilaterally excises provisions from a settlement agreement when seeking its registration as a court order cannot later rely on those excised provisions to argue that the retained provisions are incapable of performance.

The court made observations on the doctrine of fictional fulfillment, noting that payment into a legal practitioner's trust account constitutes legal tender in compliance with a court order, citing Gowan v Bowern 1924 AD 550, Ndlovu v Marandu 1999 (2) ZLR, and Gasela v Malinga and 2 Ors HH 736-20. The court also observed that a deed of settlement filed with the court is a record of settlement that is legally binding and should be presented in its original form, citing Thutha v Thuta 2008(3) SA 494 TKH. The court noted that Rule 449 (now Rule 29) recognizes that humans are fallible and prone to error, and such errors can be rectified to minimize unintended harm or prejudice, citing Da weelson v Waterlink Pool and PSA (Pty) Ltd (2013) ZAPGJHC 47. The court commented that the applicants wanted to "have their cake and eat it" by seeking rescission of an order they had twice enforced. The court expressed inclination toward awarding costs on a higher scale given evidence of the first respondent's commitment to resolving peripheral issues (correspondence with the Ministry of Government and Public Works) while the applicants sought rescission for purely pecuniary reasons.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It affirms the narrow scope of Rule 449(1)(c) (now Rule 29 of the High Court Rules 2021) requiring proof of a genuine mistake common to both parties, not unilateral regret or changed circumstances. (2) It reinforces that parties cannot unilaterally sever terms from settlement agreements when seeking court registration and then later claim the severed terms render the order incapable of performance. (3) It demonstrates that courts will look beyond procedural arguments to examine the true motives behind rescission applications, particularly where evidence shows economic opportunism. (4) It confirms that the doctrine of fictional fulfillment applies when payment is made into a legal practitioner's trust account in compliance with a court order. (5) It illustrates the principle that parties cannot resile from orders they themselves sought and enforced simply because circumstances have changed in their favor. The case serves as a warning against attempts to use rescission applications as backdoor appeals or to escape from agreements that have become economically disadvantageous.