Tsitsi Sarah Gwatidzo v Homelux Land Developers (Private) Limited

The applicant filed a chamber application for leave to file a class action in Case No. HCH 2484/23, citing the respondent as "Homelux Property Development". In its opposing affidavit, the respondent corrected its citation to "Homelux Land Developers (Pvt) Ltd" and stated it was the owner of the land. The applicant filed a notice of amendment on 5 June 2023 to correct the respondent's citation. No objection was lodged. The matter was determined on papers by ZHOU J, who on 27 March 2024 granted an order allowing the class action but erroneously cited the respondent as "Homelux Property Investments" - a party never cited in the proceedings. The applicant's legal practitioners wrote letters requesting correction of the order but the judge indicated they must proceed in terms of the Rules. The applicant's legal practitioner missed the judge's response and only discovered it months later. On 8 July 2025, the applicant filed this application seeking substitution of the party or, alternatively, condonation for late filing and correction of the court order under Rule 29(1).

• Whether the application for substitution of a party after judgment could be granted under common law where it involved mere correction of a wrong name without changing the party's identity
• Whether the court order contained a patent error capable of correction under Rule 29(1)(b) of the High Court Rules, 2021
• Whether condonation should be granted for the late filing of the application for correction, given the delay of approximately 14 months
• Whether the respondent could be substituted with Homelux Land Developers (Pvt) Ltd despite the order being granted against Homelux Property Investments

1. The application to amend the citation by substituting Homelux Land Developers (Private) Limited for the Respondent in Case No. HCH 2484/23 was granted. 2. The court order in Case No. HCH 2484/23 was amended by substitution of "Homelux Land Developers (Private) Limited" for "Homelux Property Investments". 3. The respondent was ordered to pay the costs of suit. Alternatively: 1. Condonation for late filing of the application for correction or variation was granted. 2. The application for variation or correction of the court order in Case No. HCH 2484/23 was granted. 3. The court order was corrected by deletion of "Homelux Property Investments" and substitution with "Homelux Land Developers (Private) Limited". 4. The respondent was ordered to pay costs of suit.

1. An application for substitution of a party after judgment is permissible under common law where it involves mere correction of a wrong name without changing the identity of the party to the judgment, as distinguished from a material amendment. 2. A patent error under Rule 29(1)(b) is an error attributable to the court itself where the judgment or order does not reflect the true intention of the judicial officer, and includes situations where a party is cited that was never involved in the proceedings. 3. Where a court order contains a patent error that is common cause and the application for correction has good prospects of success, condonation may be granted despite inordinate delay and an unacceptable explanation, where the interests of justice require it and refusing correction would render proceedings nugatory. 4. A party cannot approbate and reprobate by taking inconsistent positions - having corrected its own citation in proceedings, it cannot later claim to be a different entity. 5. A party making a positive assertion, whether applicant or respondent, bears the onus of proving that assertion.

The court noted that legal practitioners have an email linked to the IECMS system and questioned why the applicant herself, if linked to the case, failed to react to correspondence declining the request to correct the order through a letter. The court also observed that Rule 29(1) is clear that a party can only request correction or variation of a court order through a court application, and while the court may correct mero motu, this is at the court's own initiative, not upon request by litigants. The court commented that the explanation regarding the legal practitioner downloading the wrong letter was implausible and appeared to be a concocted mistake to justify the long inaction. The court emphasized that condonation is not granted on mere asking and applicants who take the attitude that indulgences are there for the asking do themselves a disservice.

This case clarifies important principles in Zimbabwean civil procedure regarding: (1) the correction of party citations after judgment where there is mere misdescription rather than substitution of a different entity; (2) the application of Rule 29(1)(b) to correct patent errors in court orders; (3) the exercise of judicial discretion in granting condonation where delay is excessive but prospects of success are strong and the interests of justice require it; and (4) the principle that a party cannot approbate and reprobate by taking inconsistent positions in litigation. The judgment reinforces that courts will prioritize substantive justice over technical procedural defaults where an order contains a clear error that would render it unenforceable and waste judicial resources.