Lamb Distributors (Pvt) Ltd v Allied Timbers (Pvt) Limited

The applicant sought to correct an order of the High Court dated 25 January 2017 (HH 42/17) which ordered the defendant to pay the plaintiff $52,982 together with interest and costs. The applicant sought the correction in terms of Order 49 Rule 449 of the rules of court, claiming there was an arithmetic miscalculation in the judgment amount. However, after the judgment was issued, the respondent had noted an appeal to the Supreme Court under SC 75/17, which was still pending at the time of this application. The applicant filed the application for correction after the appeal had been noted.

• Whether the High Court can correct, vary or amend a judgment in terms of Order 49 Rule 449 when that judgment is subject to a pending appeal before the Supreme Court
• Whether noting an appeal suspends only execution of the judgment or also suspends the right to correct the judgment under Rule 449
• Whether the High Court becomes functus officio once an appeal is noted to the Supreme Court
• Whether the application infringes the respondent's constitutional right to appeal

1. The preliminary point was upheld. 2. The application was dismissed with costs.

When an appeal has been noted to the Supreme Court, the High Court becomes functus officio and lacks jurisdiction to correct, vary, or rescind its judgment under Order 49 Rule 449, regardless of whether the proposed correction is substantive or merely arithmetic. The noting of an appeal suspends not only execution of the judgment but also the right to vary, correct or rescind the order under Rule 449. The nature of the intervention sought (whether rescission, variation, or correction) is irrelevant; once a judgment is sub judice before the Supreme Court, it ceases to be in the realm of the High Court to alter it in any manner.

The court noted that the issue of whether there was indeed a miscalculation common to the parties delved into the merits of the case and could not be disposed of as a preliminary issue. Regarding the constitutional right to appeal, the court observed that this point was not developed further and treated it as abandoned. The court also commented that the applicant took a chance by filing the application despite being aware of the established case law on the point, and therefore had only itself to blame for the dismissal.

This case reinforces the principle in Zimbabwean law that once a judgment is subject to a pending appeal before the Supreme Court, the High Court becomes functus officio and cannot exercise its powers under Order 49 Rule 449 to correct, vary or rescind the judgment, regardless of the nature or extent of the proposed correction. The case clarifies that the suspension of a judgment by virtue of a pending appeal extends beyond mere execution to include any attempt to alter the judgment through procedural rules.