Tradepass Marketing Services (Pvt) Ltd t/a Agrisec Environmental Health v OK Zimbabwe

The applicant, Tradepass Marketing Services (Pvt) Ltd, brought an application styled as an application for rescission of judgment. The application sought to rescind a judgment delivered by Mathonsi J on 23 November 2017 under case number HC 2367/17 (HB-371-17), in which the learned judge had declined to grant default judgment in favour of the applicant. The founding affidavit was deposed to by Muriel De Souza without any Board Resolution authorizing her to act on behalf of the applicant company. Dr De Souza appeared in person for the applicant company at the hearing. The application was described as lengthy, argumentative, and rambling in nature, attacking the findings of the judge rather than following proper procedure.

• Whether the applicant adopted the wrong procedure in bringing an application for rescission of judgment in respect of a judgment not granted in default
• Whether the application complied with the prescribed form and rules of court (Order 9 Rule 63, Rule 230, Form 29)
• Whether a private limited company must be represented by a legal practitioner when bringing proceedings in the High Court
• Whether the application constituted an abuse of court process

The application was dismissed with costs on an attorney-client scale (punitive costs).

An application for rescission of judgment under Order 9 Rule 63 of the High Court Rules, 1971, is only competent where judgment was entered in default (i.e., where a party failed to attend court proceedings or failed to enter appearance to defend). It cannot be used to challenge a reasoned judgment delivered after consideration of the matter. A private limited company must be represented by a legal practitioner when bringing proceedings in the High Court, in accordance with common law principles. All court applications must comply with the prescribed rules and forms (in this case Form 29 and Rule 230), and failure to do so renders the application fatally defective.

The court observed that the rationale behind the rule requiring companies to be represented by legal practitioners is to limit frivolous proceedings being brought before the court by litigants who lack the skill and legal expertise, and who may prejudice the company by wasting its funds. The court noted that if litigants are allowed to wantonly attack judgments and the integrity of the court without just cause, the dignity of the court will be impugned. The court emphasized that where applications are frivolous and constitute an abuse of court process, punitive costs on an attorney-client scale are appropriate to show the court's displeasure and to ensure that the successful party recovers its full costs.

This case reinforces important principles of civil procedure in Zimbabwe: (1) the proper scope and application of rescission of judgment applications (limited to default judgments); (2) the strict requirement for compliance with court rules and prescribed forms; (3) the common law rule requiring companies to be represented by legal practitioners in High Court proceedings; and (4) the court's willingness to impose punitive costs where applications constitute an abuse of process or wanton attacks on judicial decisions. The case serves as a cautionary example of the consequences of bringing improperly conceived and drafted applications without legal representation.