Stewart Dhliwayo v Warman Zimbabwe (Pvt) Ltd and Others

Applicant was employed by 1st respondent as a branch manager and secretary. A dispute arose regarding whether applicant had authority to indigenize the company, changing its directors and shareholders. In September 2015, applicant was dismissed following a disciplinary hearing for various acts of misconduct including unauthorized appointment of directors, unauthorized amendments to the Memorandum and Articles, unauthorized share transfers, and abuse of company funds. In HC 2693/15, respondents successfully obtained a court order setting aside the unauthorized indigenization and related actions. The matter proceeded to trial on 18 July 2019, when applicant failed to appear after his postponement application was dismissed. Default judgment was granted. Later that same day, applicant attended a meeting with the respondents' representatives at Coghlan and Welsh Legal Practitioners, where he handed over company assets and instructed employees to report to the new management. On 19 July 2019, applicant filed this application seeking rescission of the default judgment under Rule 63(1) of the High Court Rules, 1971.

• Whether the respondents had valid authority to oppose the rescission application
• Whether the deponent to the opposing affidavit was competent to depose on behalf of the 2nd and 3rd respondents
• Whether applicant's right to challenge the default judgment had been perempted by his acquiescence to the judgment
• Whether applicant's compliance with the judgment was voluntary or induced by duress

1. The point in limine regarding peremption (that applicant voluntarily acquiesced with the default judgment in HC 2693/15 and cannot seek to have it rescinded) is upheld. 2. The application for rescission of judgment is dismissed with costs of suit.

Where a party unequivocally acquiesces to a judgment by voluntarily complying with its terms through conduct that is inconsistent with any intention to challenge it, the right to seek rescission of that judgment becomes perempted. The doctrine of peremption applies equally to rescission applications as it does to appeals. Conduct relied upon to establish acquiescence must be unequivocal and inconsistent with any intention to challenge the judgment. For a deponent to be competent to depose to an affidavit in application proceedings, they need only be a person who can swear to the facts or averments set out therein (per Order 32 r 227(4) High Court Rules, 1971) - this is distinct from the requirement for authority to institute or defend proceedings on behalf of a party.

The court noted that the general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. The court observed that a party cannot be allowed to have their cake and eat it too, and must not opportunistically endorse two conflicting positions or both approbate and reprobate. The court commented that there would be no useful purpose in considering the merits of a rescission application when the applicant has unequivocally acquiesced to the judgment sought to be rescinded. The court also noted that allegations of duress unsupported by evidence amount to a red herring and will not save an application from dismissal.

This case reinforces the application of the common law doctrine of peremption in Zimbabwean law, establishing that a party who unequivocally acquiesces to a judgment by voluntarily complying with its terms cannot subsequently seek rescission of that judgment. The case also clarifies the distinction between authority to institute or defend proceedings and the competence of a witness to depose to an affidavit in application proceedings, confirming that the deponent need only have knowledge of the facts under Order 32 r 227(4) of the High Court Rules, 1971. The judgment demonstrates the courts' intolerance for parties who attempt to "blow hot and cold" by accepting a judgment's benefits or complying with its terms, then seeking to challenge it.