Justice Chengeta N.O. and Commissioner General of Police and Police Service Commission and Minister of Home Affairs v Tymon Tabana

This was an application for rescission of a judgment dated 21 December 2016 (HC11456-16). In the original matter, the respondent (Tabana) had obtained a declaratur that: (1) he had a constitutional right under sections 55 and 64 of the Constitution not to perform forced labour and freedom of profession by being denied the right to retire upon reaching pensionable age; (2) the respondents' conduct barring him from retiring was unlawful; (3) a radio signal directing his arrest was unlawful; and (4) a bonding agreement signed in 2010 was unenforceable. The applicants sought to rescind this judgment, alleging it was fraudulently and wrongfully obtained because the interim relief ought not to have been confirmed on the same papers as final relief. The applicants claimed they were not in wilful default as parties had communicated and agreed there was no need for the declaratur, and that the respondent's discharge was subsequently approved. The respondent opposed the application, stating that the Police Service Commission was not opposed to his retirement and was expediting it, that the interim order was properly served on 23 November 2016, and that applicants acted sluggardly by failing to oppose within the prescribed ten days.

• Whether the application for rescission was properly pleaded before the court
• Whether the applicants met the requirements for rescission under Rule 449 of the High Court Rules
• Whether the applicants met the requirements for rescission under Rule 63 of the High Court Rules
• Whether the applicants were entitled to rescission under the common law
• Whether the applicants were in wilful default
• Whether good and sufficient cause existed for rescission
• Whether the applicants had a bona fide defence to the original claim

The application for rescission of judgment was dismissed with costs.

An application for rescission of judgment must properly plead the specific legal basis for the relief sought. Where an applicant seeks to rely on Rule 449, Rule 63, or the common law, the founding affidavit must contain the essential averments required for each remedy invoked. For Rule 449: (1) judgment was erroneously sought or granted; (2) judgment was granted in absence of a party; (3) applicant's rights were affected; (4) no inordinate delay. For Rule 63: (1) judgment given in absence; (2) application filed within one month of knowledge; (3) condonation sought if late; (4) good and sufficient cause exists, meaning: (a) reasonable explanation for default; (b) bona fide application not for delay; (c) bona fide defence on the merits. An application that fails to plead the necessary averments for any of the remedies invoked is fatally defective and not properly before the court. The court cannot be asked to choose between alternative remedies when none has been properly pleaded.

The court observed that had the applicants specifically and expressly relied only on the common law's broad power to grant rescission as an indulgence, they might have stood a better chance of having the court's discretion exercised in their favour. The court noted it was particularly concerning that the third respondent (Police Service Commission), which was the applicants' principal, was not opposed to the original order and had in fact settled the matter in favour of the respondent - this moved the applicants away from the moral high ground they claimed (that the matter was of national importance). The court also noted that the maxim 'vigilantibus non dormientibus jura subveniunt' (the law will help the vigilant not the sluggard) applies, citing Ndebele v Ncube 1992 (1) ZLR 288 (S).

This case is significant for establishing strict pleading requirements in applications for rescission of judgment in Zimbabwean law. It emphasizes that applicants cannot simultaneously rely on multiple remedies (Rules 449, 63, and common law) without properly pleading the specific requirements for each. The judgment reinforces that vague or 'kitchen sink' approaches where all possible remedies are invoked 'ex abundante cautella' will not succeed. It underscores the principle 'vigilantibus non dormientibus jura subveniunt' - the law assists the vigilant, not the sluggard. The case also demonstrates that rescission applications must establish good and sufficient cause, including: (a) reasonable explanation for default; (b) bona fide application not intended to delay; and (c) a bona fide defence on the merits. It highlights that internal contradictions within government entities (where the Police Service Commission was not opposed to the order being sought to be rescinded by other state entities) undermine applications for rescission.