Netsai Kalenga v Zhou Xin and Others

The plaintiff was a member of the fourth defendant housing cooperative from 2004, which she joined to acquire Stand 314 Carrick Creagh. In 2007, the fourth defendant entered into a tripartite agreement with the third and fifth defendants for land allocation and infrastructure development. The plaintiff claimed she was registered for benefit of the stand, assumed occupation, and paid development costs. However, in 2020 she discovered that the third defendant had obtained title to the stand and transferred it to the first and second defendants in 2012 under Deed of Transfer 1469/2012. The plaintiff sued seeking cancellation of the title deed and registration in her favor, or alternatively damages of ZWL25,000,000 with interest or compensation of ZWL20,000,000. The third defendant filed a consent to judgment to the alternative claim of ZWL25,000,000 (without interest) on 3 August 2023. The plaintiff subsequently filed a notice to amend her summons deleting all alternative reliefs. Before trial commenced, the third defendant raised a preliminary objection that there was no issue for trial as between it and the plaintiff because it had filed a consent to judgment which disposed of the matter.

• Whether a defendant's consent to judgment to part of a plaintiff's alternative claim disposes of the entire matter between the parties
• Whether a plaintiff is obliged to accept a defendant's consent to judgment filed in terms of Rule 21(1) of the High Court Rules
• Whether the word 'may' in Rule 21(1) confers a discretion on the plaintiff to accept or reject a consent to judgment
• Whether a consent to judgment terminates a cause of action or only a consent order does so
• Whether proceedings can be terminated by a defendant's unilateral act of consenting to part of a claim without plaintiff's acceptance

1. The objection raised by the third defendant that the matter as between the plaintiff and third defendant has been disposed of is dismissed. 2. Costs shall be in the cause. 3. The Registrar is directed to set the matter down for commencement of trial.

The binding legal principles established are: (1) Under Rule 21(1) of the High Court Rules, 2021, the word 'may' confers discretionary power on the plaintiff to decide whether to apply for judgment by consent, not an obligation to do so; (2) A consent order, not merely a consent to judgment, is what disposes of a matter and terminates a cause of action; (3) A consent order is founded on a contract or agreement between parties and requires consensus ad idem - true agreement between the parties; (4) A defendant's unilateral act of consenting to part of a plaintiff's claim cannot have the effect of terminating proceedings without acceptance by the plaintiff through filing a chamber application for judgment by consent; (5) Where a plaintiff pleads a main claim with alternative relief, a defendant's consent to only part of the alternative claim does not dispose of the main claim; (6) Acceptance by the plaintiff of a consent to judgment is essential before the original cause of action can be said to have come to an end.

The court made several non-binding observations: (1) It is competent for a court to grant only the main/primary relief sought, or to grant both the primary and alternative relief; (2) Pleading alternative relief is a common legal strategy to ensure the court has options when the outcome is uncertain; (3) The primary remedy remains the main claim that the plaintiff pursues even when alternatives are pleaded; (4) The principle 'vigilantibus non dormientibus jura subveniunt' (the law helps the vigilant, not the sluggard) was raised by the defendant but the court did not find it applicable in the circumstances; (5) A consent to judgment, while not per se irregular, has no legal effect if not given effect through a chamber application for a consent order by the plaintiff; (6) An action comes to an end when it is dismissed or where judgment is given in favor of the plaintiff, so far as deciding the rights of parties is concerned, but not as regards enforcement of judgment. The court also noted that the economic reality of currency changes affecting the value of claims in Zimbabwean dollars was a legitimate reason for intending to amend pleadings.

This judgment clarifies important principles of Zimbabwean civil procedure regarding consent to judgment under Rule 21 of the High Court Rules, 2021. It establishes that: (1) A plaintiff has a discretion, not an obligation, to accept a defendant's consent to judgment; (2) The word 'may' in procedural rules confers discretionary power; (3) A consent to judgment does not automatically dispose of a matter - only a consent order does; (4) There must be true consensus ad idem (meeting of the minds) for a valid consent agreement; (5) A defendant cannot unilaterally terminate proceedings by consenting to part of a claim without the plaintiff's acceptance; (6) When a plaintiff pleads alternative relief, consenting to only the alternative does not dispose of the main claim. The judgment reinforces that consent orders are contractual in nature and require agreement from both parties. It also addresses the practical issue of claims affected by currency changes and the plaintiff's right to amend in such circumstances.