Pinford Gudoricharima v Loice Mutandwa and Sheriff of the High Court

The applicant filed an urgent application seeking to stay execution of a default judgment granted against him in case HC 5133/18, pending the determination of the matter. The applicant sought an interdict preventing the second respondent (Sheriff) from ejecting him from Stand Number 13432. On 6 January 2020, when the parties appeared before the court, the first respondent's legal practitioner did not file opposing papers but made oral submissions that the application was confused, as the applicant was seeking to uplift a bar rather than properly applying to set aside the default judgment. The matter was postponed to 9 January 2020 for the applicant to revisit his application. On 8 January 2020, the applicant filed a proper application for rescission of judgment under case HC 87/20. On 9 January 2020, the first respondent's counsel was in default of court attendance. The applicant's counsel applied to amend the interim provisional order to reflect that the stay of execution was sought pending determination of the rescission application rather than the upliftment of bar. The court granted the interim relief in the absence of the first respondent and her counsel. Subsequently, the first respondent's legal practitioners wrote to the judge on 29 January 2020 requesting that the provisional order be rescinded mero motu under Order 49 Rule 449(1)(a), arguing that the order was granted for an application that was not before the court.

• Whether the court could grant a provisional order as varied when the applicant applied for an amendment at the hearing
• Whether the interim provisional order was erroneously granted in the absence of the first respondent
• Whether the court should rescind the provisional order mero motu under Rule 449(1)(a)
• Whether it was proper for a party to request the court to act mero motu
• Whether the court could grant interim relief when the rescission application had been filed but not yet served

The request to rescind the provisional order mero motu was refused. The provisional order granted on 9 January 2020 was upheld, staying the execution of the default judgment pending determination of the rescission application.

Where a party applies for an amendment to its application at a hearing and the opposing party is in default, the court is empowered under Rule 246(2) of the High Court Civil Rules, 1971 to grant a provisional order as varied if a prima facie case is established on the papers. The court's power to act mero motu under Rule 449(1)(a) to rescind an order means acting on its own accord without prompting or request from any party; therefore, a party cannot properly request the court to act mero motu. An interim order staying execution pending a rescission application is not erroneously granted merely because the rescission application has been filed but not yet served, provided the application exists and was filed before the hearing at which the interim order was granted.

The court observed that the standard provisional order Form 29C does not provide space to indicate the names of appearers (legal practitioners or parties), and recommended that such information should be endorsed on the first page of the form so that the record properly reflects who appeared. The court noted that without this information, a wrong impression may be created that the judge granted the order without convening a hearing and acted in the parties' default. The court also commented that ordinarily a judgment would not have been necessary to answer the first respondent's letter, but it was written to correct misconceptions and inaccuracies regarding how the matter progressed, and would assist both parties and any court that may further deal with the matter. The court reminded counsel that whenever writing to the judge concerning a matter involving another party, that party should be copied the communication for openness and transparency.

This case is significant in Zimbabwean civil procedure as it clarifies the court's powers under Rule 246(2) to grant provisional orders as varied from the draft filed, particularly where amendments are sought at the hearing. It also provides important guidance on the proper interpretation and application of the mero motu rescission power under Rule 449(1)(a), emphasizing that a party cannot request the court to act mero motu as this contradicts the very meaning of the term. The judgment reinforces the principle that parties who default in appearing at hearings cannot complain about orders made in their absence when they had notice and opportunity to attend. It also underscores the importance of procedural fairness and transparency in communications with the court, requiring that all parties be copied on correspondence to the judge.