The respondent (TMS Holdings) purchased a property in Borrowdale and obtained a default judgment in HC 7752/15 from Musakwa J on 16 September 2015 for eviction of the applicants and ancillary relief. Following the default judgment, the applicants (Elevate Academy PBC and Innocent Sibanda) were evicted together with Remnant Christian Church, its pastors and members. The applicants then filed an application for rescission of the default judgment. Separately, Remnant Christian Church also sought rescission of the same judgment. Their application was dismissed by Mwayera J, but they successfully appealed to the Supreme Court in SC 473/18, which set aside the default judgment granted in HC 7752/15. Despite this Supreme Court order, the applicants persisted with their own rescission application, claiming they were different parties from Remnant Christian Church.
The point in limine was upheld and the application was dismissed with costs on a legal practitioner-client scale.
Where a judgment has been set aside by a superior court (in this case the Supreme Court), that judgment ceases to exist and is no longer in operation. There can be no rescission of a judgment that has already been cancelled, annulled, revoked or set aside. The effect of a Supreme Court order setting aside a judgment is absolute - it results in there being no judgment in existence, regardless of which party obtained the order or the procedural rule under which the order was sought. A party cannot seek to rescind a judgment that no longer exists merely because they were not the party who obtained the order setting it aside.
The court observed that this was a case where it fell short of ordering costs de bonis propriis against the applicant's legal practitioner (Mr Chikwari). The court commented that where a colleague advises on a point of law, it is important to carefully consider the point and not adamantly maintain an untenable position. The court noted that the application had been overtaken by events and it was prudent for the applicants to withdraw the application to save costs and the court's time. The court emphasized that the respondent had written to the applicant's counsel prior to set down advising that pursuing the application was unnecessary and that the applicants should withdraw, but this advice fell on deaf ears.
This case establishes an important principle regarding the finality of appellate court decisions and the futility of seeking relief that has already been granted by operation of law. It demonstrates that once a judgment has been set aside by a higher court, there is no judgment remaining to be rescinded, regardless of whether the party seeking rescission was the same party that obtained the appellate relief. The case also serves as a warning to legal practitioners about pursuing untenable positions when clearly advised otherwise by opposing counsel, with the court expressing it came close to ordering costs de bonis propriis.