Margaret Rugare Tichareva v Lewis Chirozvani and Others

The applicant (wife) initially filed an application (HC 4734/07) seeking cancellation of an agreement of sale for House No. 5560 Kuwadzana 7 Harare, which her spouse (first respondent) had entered into with the third respondent without her consent. The first respondent opposed the application, raising material factual disputes. OMERJEE J accepted there were material disputes incapable of resolution on papers and referred the matter to trial. A pre-trial conference was held on 18 September 2008 where the matter was confirmed for trial, with parties to call witnesses and effect discovery. However, about 9 years later, the first respondent's legal practitioner enquired with the Registrar about trial dates. The Registrar determined the matter should proceed as an opposed application, which was allocated to DUBE J who heard and dismissed the application (HH 134/18). The applicant then sought rescission of DUBE J's judgment, arguing it was granted in error as the matter should have proceeded to trial, not as an opposed application.

• Whether a judgment granted as a result of a common mistake by both parties is susceptible to rescission under Order 49 r 449
• Whether it was competent for a matter referred to trial by one judge to be subsequently determined as an opposed application by another judge
• Whether the parties' reliance on the Registrar's administrative determination constituted a common mistake
• Under which specific sub-rule of Order 49 r 449 the rescission should be granted

The application for rescission was granted. The judgment of DUBE J (HH 134/18) was rescinded. The draft order was amended in paragraph one by deletion of reference to r 449(1)(b) and substitution with r 449(1)(c).

Where a court has competently and definitively referred a matter to trial after finding material disputes of fact incapable of resolution on papers, it is not competent for that matter to subsequently be determined as an opposed application without reviewing the prior order. Where both parties appear before a court to argue a matter on a procedural basis that contradicts a prior competent court order (such as arguing an opposed application when the matter had been referred to trial), this constitutes a common mistake by the parties, and any judgment granted on that basis is susceptible to rescission under Order 49 r 449(1)(c). An administrative determination by the Registrar cannot override or effectively review a substantive judicial order referring a matter to trial.

The court expressed that it found it "somewhat inexcusable" that the first respondent's counsel chose to rely on the Registrar's erroneous administrative decision as an excuse for not resisting the procedural error, particularly given that counsel had represented the first respondent from inception and was fully aware that the matter had been referred to trial. The court also noted with apparent disapproval that the argument regarding material disputes of fact (which had been raised before OMERJEE J) was not canvassed before DUBE J, and that neither party had addressed DUBE J on the background of the matter having been referred to trial. The court also observed that it was "not easy to understand" how counsel allowed the matter to proceed as an opposed application without resolving the material dispute of fact issue.

This case is significant in Zimbabwean civil procedure as it clarifies that: (1) once a matter has been definitively referred to trial by a competent court order, it cannot be subsequently determined as an opposed application without proper review of that order; (2) administrative errors by court officials (such as the Registrar) do not override substantive court orders made by judges; (3) parties have a duty to bring material procedural history to the attention of the court, and failure to do so may constitute a common mistake justifying rescission; and (4) legal practitioners cannot rely on administrative determinations that contradict prior judicial orders as justification for procedural errors. The case reinforces the importance of procedural propriety and the binding nature of interlocutory orders referring matters to trial.