The Commissioner General of Police and Assistant Commissioner Marecha v Samuel Kufandada and Others

The 1st respondent (Kufandada) was a member of the Zimbabwe Republic Police (ZRP). On 16 June 2014, he was convicted of contravening the Police Act and subsequently transferred from Ross Camp Police Station to Makosa Police Station. He allegedly did not report for duty, leading to a Board of Inquiry recommending his discharge. He was discharged from the ZRP on grounds of unfitness and desertion. On 8 December 2015, the 1st respondent filed a court application for review (HC 3298/15) challenging his discharge. The application was struck off the roll on three occasions (24 March 2016, 27 July 2017, and 26 October 2017) due to non-service. On 14 November 2017, the 1st respondent filed a chamber application for default judgment (HC 2997/17). On 30 July 2019, the court granted the chamber application, setting aside his discharge. The applicants (Commissioner General of Police and Assistant Commissioner Marecha) then sought rescission of this judgment under rule 449(1) of the High Court Rules, 1971, arguing it was erroneously sought and erroneously granted in their absence.

• Whether the default judgment granted on 30 July 2019 in HC 2997/17 was erroneously sought or erroneously granted in the absence of parties affected thereby under rule 449(1) of the High Court Rules, 1971
• Whether a chamber application for default judgment could competently be filed in respect of a matter that had been struck off the roll and deemed abandoned
• Whether the affidavit of service filed by the 1st respondent was sufficient to establish proper service of the application
• Whether the preliminary point regarding non-joinder of a police officer named Ennia had merit

1. The default judgment erroneously sought and erroneously granted on 30 July 2019 in case No. HC 2997/17 was rescinded. 2. The 1st respondent was ordered to pay the costs of the application.

Where a court application has been struck off the roll and no application for reinstatement is filed within the time prescribed by Practice Directive 3/13 (30 days), the matter is deemed abandoned and ceases to be before the court. It is incompetent to file a chamber application for default judgment in respect of a matter that has been abandoned and is not before the court. Such an order is erroneously sought and erroneously granted under rule 449(1) of the High Court Rules, 1971. Under rule 449(1), once a court finds that a judgment was erroneously granted against a party (either due to judicial error or the actions of the party seeking judgment), there is no additional requirement to show "good cause" - the court should rescind the judgment. An applicant for rescission cannot join parties in the rescission application who were not parties to the original application that is sought to be rescinded.

The court observed that the 1st respondent's conduct in prosecuting his application was "not beyond reproach" and involved "underhand tactics" that "undermine the integrity of the processes of this court and serve no useful purpose in litigation." The court noted that the 1st respondent failed to disclose to the court in his chamber application that HC 3298/15 had been struck off the roll, and filed an affidavit of service claiming service on a date that, if true, would have prevented the application from being struck off for non-service. The court distinguished between rescission under rule 449(1) and rule 63, noting that applicants were conflating the two. The court reiterated the functus officio doctrine and explained that rule 449 is a narrow exception to the principle of finality in litigation, to be resorted to "only for the purposes of correcting an injustice that cannot be corrected in any other way."

This case demonstrates the application of rule 449(1) of the High Court Rules, 1971 in Zimbabwe and clarifies the limited circumstances in which a court may revisit its own decisions. It reinforces the principle that once a matter has been struck off the roll and deemed abandoned under Practice Directive 3/13, it ceases to be before the court and no further relief can be sought without proper reinstatement. The case also emphasizes the court's power to correct errors and prevent abuse of court processes, while balancing the principle of finality in litigation. It illustrates the difference between rescission under rule 449(1) (which does not require proof of good cause) and rescission under rule 63 (which does). The judgment serves as a warning against underhand litigation tactics and emphasizes the duty of candor owed to the court.