Mfema Garanewako and Others v City of Harare and Others

On 11 September 2018, the City of Harare (first respondent), a local authority, entered into a consent order with its employees (second to thirty-second respondents) under HC 6908/13, allocating them stand numbers 3515 to 3553 (excluding stand numbers 3536 and 3552) of Valley Lane Plan TPX 1290, Crowborough, Harare. The applicants (35 parties plus a workers union) claimed that the City of Harare had previously allocated these same stands to them, that they were current occupants and allotees who had contributed towards development and servicing of the stands, and that some had already taken occupation. The applicants alleged that the consent order was issued in their absence and adversely affected their interests in the stands. They sought rescission of the consent order to enable them to be joined to the original proceedings. The first respondent admitted in its supplementary affidavit that the applicants had lost out as a result of the consent order and had taken steps to allocate alternative land to them through allocation letters.

• Whether the applicants had locus standi to rescind a consent order to which they were not parties
• Whether the consent order was erroneously sought or granted in the absence of parties affected thereby under Rule 449(1)(a) of the High Court Rules
• The proper interpretation of 'party affected' under Rule 449(1)(a)
• Whether the applicants demonstrated on a balance of probabilities that the consent order adversely affected their interests
• Whether parties who were not cited in the original proceedings but have material interests affected by the order can apply for rescission

The application for rescission of the consent order granted under HC 6908/13 on 11 September 2018 was granted as prayed. The consent order allocating stands to the second to thirty-second respondents was rescinded to pave way for the applicants to be joined to HC 6908/13 so that the matter could be decided taking into account their interests.

The binding legal principles established are: (1) Under Rule 449(1)(a) of the High Court Rules, a 'party affected' is not limited to parties who were cited in the original proceedings, but extends to any person whose interests are adversely affected by a judgment or order, even if they were not parties to the original case; (2) Such affected parties have locus standi to apply for rescission of the judgment or order and can place before the rescinding court facts that were not before the original court; (3) A judgment or order is erroneously sought or granted within the meaning of Rule 449(1)(a) where parties before the court withhold vital information from the court, particularly regarding the existence and interests of other affected parties, such that the court would not have granted the order had full disclosure been made; (4) An applicant for rescission under Rule 449(1)(a) must demonstrate on a balance of probabilities that the judgment or order adversely affects their interests; (5) Courts should resolve disputes holistically rather than in a piecemeal manner to ensure finality.

Mangota J observed that a strict construction of Rule 449(1)(a) would give the distinct impression that applicants cannot rescind an order to which they were not a party, which would deprive such litigants of the requisite locus to sue. The judge noted that such misconstruction would restrict rescission only to cases involving mistaken belief that the defendant knew of the hearing, or where counsel in ex parte applications misleads the court, or where capital claimed has already been paid. The court compared the position to Bakoven Ltd v G.T Howes (Pty) Ltd 1992 (2) SA 466 (E), where the South African court likened Rule 42(1)(a) (equivalent to Zimbabwe's Rule 449(1)(a)) to a court of appeal dealing with nothing but the record of proceedings, but noted that this restrictive interpretation had been clarified and rejected by the Supreme Court in Grantully. The court also observed that the first respondent's attempt to resolve the dispute through allocation of alternative land to affected applicants was evidence of a piecemeal approach that would not achieve finality.

This case is significant in Zimbabwean civil procedure law as it clarifies and expands the interpretation of 'party affected' under Rule 449(1)(a) of the High Court Rules. It establishes that parties who were not cited in original proceedings but whose material interests are adversely affected by a judgment or order have locus standi to apply for rescission of that judgment or order. The case affirms the principle from Grantully (Pvt) Ltd v UDC Ltd that courts are not confined to the record of proceedings when deciding whether a judgment was erroneously granted, and that affected parties can place before the court facts that were not before the original court. This promotes the interests of justice by ensuring that persons materially affected by court orders have recourse even when not originally joined as parties. The case also emphasizes the duty of candour upon litigants to make full disclosure to courts, particularly in consent order proceedings, where the withholding of material information about other affected parties may render the order erroneously sought or granted.