Nqobile Khumalo and Francisca Mufambi v Maoni Trading (Pvt) Ltd and Others

The applicants sought rescission of a court order granted in HC 2986/15 on 21 April 2016, approximately 2 years later on 4 April 2018. The applicants contended that the court order in HC 2986/15 contradicted two earlier court orders (HC 2495/15 and HC 2167/14), and that the first respondent failed to disclose the existence of these earlier orders when the provisional order was confirmed. The applicants further alleged that the agreement of sale confirmed in HC 2986/15 was unlawful for non-compliance with section 275(1) of the Mines and Minerals Act. The applicants claimed they were not aware of the order as it was never served on them, but failed to provide details of when and how they became aware of it.

• Whether a delay of 2 years in seeking rescission of judgment under Rule 449 was reasonable
• Whether the court granted the order in HC 2986/15 erroneously due to lack of awareness of previous conflicting orders
• Whether the court was aware of the alleged unlawfulness of the agreement under the Mines and Minerals Act when granting the order
• Whether the resolution authorizing representation of the company was valid

The application for rescission was dismissed with costs.

1. An application for rescission of judgment must be brought within a reasonable time to uphold the principle of finality of litigation. What constitutes reasonable delay depends on the facts of each case, and applicants bear the burden of proving the reasonableness of any delay by fully ventilating the circumstances. 2. A court cannot be found to have acted erroneously due to unawareness of certain facts where those facts formed part of the court record at the time the order was granted. Information contained in papers filed of record is presumed to have been read by the court. 3. There is no prescribed format for company resolutions authorizing representation in court proceedings; courts should apply a substance-over-form approach and accept documents crafted with the spirit of authorizing representation, absent glaring fatal anomalies.

The court observed that it emphasized substance over form, and where an attempt has been made to acquire relevant authority to represent a company, in the absence of glaring anomalies that are fatal to the whole process, the court should not dismiss the document as being non-existent. The court also noted that authority cited by applicant's counsel on the format of company resolutions was persuasive rather than binding.

This case clarifies the application of Rule 449 rescission applications in Zimbabwe, particularly regarding: (1) the requirement for reasonable expedition in bringing rescission applications and the duty to fully explain delays; (2) the principle that courts cannot be deemed to have acted erroneously when the relevant information was already on the court record; and (3) the application of a substance-over-form approach to company resolutions authorizing legal representation.