City of Bulawayo v Megalithic Marketing (Pvt) Ltd

This matter arose from an earlier case (HC 1814/12, decided as HB-8-15) where Megalithic Marketing (Pvt) Ltd successfully challenged City of Bulawayo's decision to re-tender a parking management system contract. The court in that earlier case set aside the decision to re-tender and ordered the City to carry the tender process to completion. Subsequently, the City of Bulawayo brought this application seeking to amend/vary the operative part of the January 15, 2015 court order. The City sought to delete the order requiring it to complete the tender process and substitute it with provisions allowing it to first determine whether it needed a parking management system within 60 days, and if so, to refer the matter to the State Procurement Board as a fresh tender. The City claimed this was either an application for directions under Order 23 Rule 151 or an application for variation under Order 49 Rule 449 of the High Court Rules.

• Whether the application constituted a proper application for directions under Order 23 Rule 151 of the High Court Rules
• Whether the court had jurisdiction to vary its previous final judgment under Order 49 Rule 449 on the basis of a mistake common to the parties
• Whether the court could exercise its common law jurisdiction to vary or supplement its previous judgment
• Whether the court was functus officio in relation to the final judgment previously granted

The points in limine were upheld. The application was dismissed with costs on an attorney and client scale.

1. Order 23 Rule 151 applications for directions apply only to chamber applications concerning interlocutory matters in actions where pleadings have closed or appearance has been entered; they cannot be used to revisit final judgments in completed applications. 2. Once a final judgment has been granted, the court is functus officio and cannot vary that judgment unless specific statutory provisions or common law exceptions apply. 3. Under Order 49 Rule 449(1)(c), a judgment may only be varied if it was granted as a result of a mistake common to the parties. Where parties vigorously contested an issue and the court decided based on those arguments, no common mistake exists. 4. An applicant cannot fortify deficiencies in a founding affidavit through an answering affidavit - an applicant must stand or fall by the founding affidavit. 5. The common law jurisdiction to supplement or clarify judgments does not extend to permitting complete replacement or obliteration of a final judgment with a new one. 6. The principle of finality in litigation must be preserved rather than eroded.

The court made strong observations about the conduct of the applicant's legal representatives. Noting that the deponent to the founding affidavit was a registered legal practitioner and that the applicant was legally represented throughout, Kamocha J stated that "this matter was handled in a manner that leaves a lot to be desired." This dissatisfaction with the manner of bringing the application influenced the court's decision to award costs on a punitive attorney and client scale rather than the usual party and party scale. The court also observed that the applicant ought to have known from the outset that: (i) there was no mistake common to the parties as they had vigorously argued the reviewability issue; and (ii) it was not competent for the court to exercise common law jurisdiction to replace its original judgment with a new one. These comments suggest the court viewed the application as lacking reasonable prospects of success from inception.

This case is significant in Zimbabwean civil procedure (applicable to South African law by analogy given similar rules) for clarifying the limited circumstances in which courts may revisit final judgments. It reinforces the principle of finality in litigation and the doctrine of functus officio. The case establishes clear boundaries for applications for directions under Order 23 Rule 151, confirming these apply only to interlocutory matters in pending actions, not to attempts to vary final judgments. It also provides guidance on the strict requirements for varying judgments under Order 49 Rule 449(1)(c), particularly that parties cannot retrospectively create a "mistake" through new developments occurring after judgment. The case serves as a warning that attempts to improperly invoke procedural rules to circumvent final judgments may result in punitive cost orders.