Francis Roland Haisaid v Oliver Masomera and Others

The applicant was appointed executor dative of the estate of the late Stephen Omar Hayisa by the Master of the High Court on 9 March 2013. The Master subsequently removed him and replaced him with the first respondent, Oliver Masomera. On 23 May 2019, the applicant filed HC 4323/19 challenging the lawfulness of the Master's decision through Tafirei & Company legal practitioners. The first respondent filed a notice of opposition on 9 June 2019. When the applicant failed to file an answering affidavit or set the matter down for hearing within the prescribed period, the first respondent applied under HC 6593/19 for dismissal for want of prosecution. Default judgment was granted on 15 October 2019. The critical issue was that HC 6593/19 was served on Tafirei & Company on 9 August 2019, after they had renounced agency on 2 August 2019. The notice of renunciation was not served on the respondents, and the incoming legal practitioners (Mubangwa & Partners) only assumed agency in November 2019.

• Whether the judgment under HC 6593/19 was erroneously sought or granted under Rule 449(1)(a) of the High Court Rules, 1971
• Whether service of HC 6593/19 on legal practitioners who had renounced agency was valid service
• Whether the applicant's rights were adversely affected by the judgment granted in his absence
• Whether Rule 449 or Rule 63 was the appropriate procedural mechanism for rescission
• Whether proper service had been effected in compliance with Rule 6 of the High Court Rules

The application was granted with costs. The judgment granted by MANZUNZU J on 15 October 2019 in favour of the first respondent under HC 6593/19 was set aside. The bar operating against the applicant in HC 6593/19 was uplifted. The applicant was granted leave to file his notice of opposition to HC 6593/19 within ten (10) working days of the order. Paragraph 3 of the applicant's draft order (seeking reinstatement of HC 4323/19) was expunged from the record as it was unnecessary once the rescission was granted, as this automatically restored the status quo ante.

A judgment is erroneously granted within the meaning of Rule 449(1)(a) if there existed at the time of its issue a fact of which the judge was unaware, which would have precluded the granting of the judgment. For rescission under Rule 449(1)(a), an applicant must establish on a balance of probabilities that: (1) the judgment was erroneously sought or granted; (2) the judgment was granted in the absence of the applicant; and (3) the applicant's rights or interests were adversely affected by the judgment. Once these three elements are established, the court shall grant the rescission without requiring the applicant to show good cause or demonstrate the merits of the underlying case. Service of process on legal practitioners who have renounced agency is invalid service, particularly where the renouncing practitioners have provided the client's last known address in the notice of renunciation. Legal practitioners who renounce agency must serve notice on the client, the registrar, AND all other parties to the proceedings in compliance with Rule 6.

The court observed that both the retiring and incoming legal practitioners were to blame for the mishap. The court noted that if the notice of renunciation had been properly served on the respondents, service would have been effected at the applicant's last known address (17 Woodland Avenue, Borrowdale, Harare) in compliance with Rule 6(2)(b), subject to verification by affidavit. The court commented that the answering affidavit filed by Mubangwa & Partners on 28 August 2019 was improperly filed as they only assumed agency in November 2019, and accordingly expunged it from the record. The court emphasized that Rule 449 applications are not time-bound and are open-ended, distinguishing them from Rule 63 applications which require good cause to be shown. The court cited with approval the remarks of VIVIER J in Theron NO v United Democratic Front that Rule 42(1) (the South African equivalent) is a procedural step designed to correct irregularities and restore parties to their position before the erroneous order, and that allowing such orders to stand is not of academic interest only.

This case is significant in Zimbabwean civil procedure for clarifying the requirements for rescission under Rule 449(1)(a) of the High Court Rules, 1971. It emphasizes the critical importance of proper service of process, particularly when legal practitioners renounce agency. The judgment reinforces that legal practitioners must comply strictly with Rule 6 by serving notices of renunciation on all parties, not just the client and registrar. It also confirms that once the three requirements for rescission under Rule 449(1)(a) are established, the court need not inquire into good cause or the merits. The case demonstrates the court's preference for deciding matters on their merits rather than on technicalities, and that procedural irregularities affecting service cannot be used to achieve finality at the expense of justice.