Tendai Bonde v National Foods Limited

The applicant was employed by the respondent as a laboratory technician quality control analyst. In July 2015, the respondent introduced a non-contractual, discretionary incentive scheme payable twice yearly. One condition was that it was not payable to employees with misconduct records or pending misconduct cases. The applicant had received a written warning for misconduct in January 2015. Between January and June 2016, some employees received incentive payments, but the applicant was excluded due to his misconduct record. The applicant's grievance went through internal processes and he appealed to the Labour Court, which dismissed his application. He then appealed to the Supreme Court in SC 599/19, which was dismissed by consent on 20 November 2019 with costs. The applicant then made an application in SC 46/20 under rule 449(1)(b) seeking rescission of the SC 599/19 order, which was dismissed in judgment SCB 57/20 with costs on a legal practitioner and client scale, with the court commenting on his abuse of court process. The applicant then filed the current application under SCB 73/20 seeking rescission of judgment SCB 57/20 under rule 449(1)(c), alleging mistake of fact common to parties and improper constitution of the bench.

• Whether the respondent was barred from defending itself against the applicant's application
• Whether the applicant's application for rescission was competent
• Whether the Supreme Court can review or rescind its own final judgments beyond the limited exceptions in rule 449
• Whether a Supreme Court judge who heard chamber applications is disqualified from sitting on the panel hearing an application relating to the same matter under section 5 of the Supreme Court Act
• Whether an applicant can seek rescission of a judgment on grounds not raised in the original application
• Whether the application constituted an abuse of court process

1. The preliminary point raised by the applicant was dismissed with costs on a legal practitioner and client scale. 2. The preliminary point raised by the respondent was upheld. 3. The matter was struck off the roll with costs.

1. Supreme Court decisions are final and the court becomes functus officio after determining a matter, subject only to the limited exceptions in rule 449 of the High Court Rules as applied through rule 73 of the Supreme Court Rules. 2. Rule 449 provides exhaustive grounds for rescission: (a) where judgment was erroneously sought or granted in absence of a party; (b) where there is ambiguity, patent error or omission; or (c) where judgment was granted as result of mistake common to parties. 3. It is incompetent to seek rescission of a judgment on the basis that the court failed to consider an issue that was never placed before it in the original application. 4. An applicant cannot make successive applications for rescission of the same underlying order on different grounds under rule 449 - this constitutes abuse of process. 5. Section 5 of the Supreme Court Act, which prohibits a judge from sitting on an appeal from a judgment they gave or participated in, applies to substantive determinations and appeals, not to procedural or chamber applications. 6. The Supreme Court has no power to review its own decisions - its review jurisdiction under section 25 of the Supreme Court Act is limited to reviewing proceedings of inferior courts, tribunals and administrative authorities.

The court observed that while self-actors (litigants in person) are entitled to their day in court in appropriate circumstances, where a self-actor abuses the rules of court to achieve purposes not contemplated by those rules, an order for costs on the higher (legal practitioner and client) scale is warranted, even though courts are generally reluctant to mulct self-actors with such costs. The court noted that the applicant had persisted in abusing court process despite clear warnings and findings to that effect in the previous judgment SCB 57/20. The court commented that the applicant was attempting to persuade the court that it is not confined to the provisions of rule 449 and can rely on other statutes and foreign law, but this ignored established law on the finality of Supreme Court decisions and the limited scope of the court's review powers.

This case reinforces fundamental principles of finality of Supreme Court judgments in Zimbabwean law and the limited circumstances under which the Supreme Court can revisit its own decisions. It clarifies that rule 449 provides exhaustive grounds for rescission and that these cannot be used to achieve results not contemplated by the rule. The case demonstrates the court's intolerance of abuse of process, particularly where a litigant repeatedly seeks to set aside final orders through successive incompetent applications on different grounds. It also clarifies the scope of section 5 of the Supreme Court Act, confirming it applies to appeals and substantive determinations, not to procedural or chamber applications. The case is significant for establishing that costs on a legal practitioner and client scale may be ordered even against self-actors (litigants in person) where there is clear abuse of court process.