Unitrack (Private) Limited v TelOne (Private) Limited

The appellant (Unitrack) obtained an arbitral award dated 31 December 2008 requiring the respondent (TelOne) to pay US$70,719.00. The award was amended on 3 June 2013 to remove references to parallel market rates that conflicted with public policy. When the award was not complied with, the appellant applied under HC4641/13 for registration of the arbitral award as a High Court order for enforcement purposes. The application was served on the respondent's legal practitioners, who wrote indicating it was premature and unnecessary but filed no formal opposition. The High Court granted the application, registering the award and additionally providing for payment of interest at 5% per annum from 1 December 2008 and costs on a legal practitioner/client scale, despite the arbitral award making no such provision. The respondent then applied in terms of Order 49 Rule 449 of the High Court Rules, 1971 for rescission of the judgment on grounds it was erroneously sought and granted in its absence, specifically regarding the interest and costs provisions. The High Court in HC154/14 granted the rescission, deleting the interest provision from the original order.

• Whether the High Court erred in applying Rule 449 to rescind or vary a judgment of another High Court judge of parallel jurisdiction
• Whether Rule 449 applies to judgments that are substantively wrong or only to those erroneously sought or granted procedurally
• Whether a High Court judge can review and alter the decision of another High Court judge of parallel jurisdiction
• Whether the respondent's failure to formally oppose the initial application constituted 'absence' under Rule 449

The appeal was allowed with costs. The judgment of the court a quo (HC154/14) was set aside and substituted with an order dismissing the application with costs.

Rule 449 of the High Court Rules is intended for the correction of orders erroneously sought or erroneously granted in terms of procedure, and not for orders that are erroneous in substance. A High Court judge lacks jurisdiction to review, rescind, or vary the judgment or order of another High Court judge of parallel jurisdiction on the basis that the earlier decision was substantively wrong. Such review is the exclusive prerogative of the Supreme Court through the appellate process. The proper remedy for a party aggrieved by a substantively incorrect judgment is an appeal, not an application for rescission under Rule 449. A party who has been served with an application and chooses not to formally oppose it cannot be considered 'absent' for purposes of Rule 449, even if they communicate their objections informally to the opposing party.

The Court acknowledged that the assessment by the judge in HC154/14 that the decision in HC4641/13 was substantively wrong (regarding the award of interest not provided for in the arbitral award) could possibly be sound at law, particularly in light of the principle in Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (H) that a court should not interfere with an arbitrator's award to alter it to accord with what the court thinks the arbitrator actually decided. However, the Court emphasized that it was not seized with determining the correctness or propriety of the decision in HC4641/13, but rather with the propriety of applying Rule 449 in HC154/14. The Court cited with approval the purpose of Rule 449 as articulated in Tiriboyi v Nyoni & Another HH117/2004: to enable the court to correct or set aside orders given in error where allowing them to stand would result in an injustice that cannot be corrected in any other way, but that it is an exception to the general rule and must be resorted to only for purposes of correcting an injustice that cannot be corrected in any other way.

This case establishes important principles regarding the limited scope of Rule 449 of the High Court Rules in Zimbabwean law and the doctrine of parallel jurisdiction. It clarifies that Rule 449 is a narrow exception to the functus officio principle, applicable only to procedural errors (orders erroneously sought or granted), not substantive errors in judgment. The case reinforces the principle that a High Court judge cannot review or alter the decision of another High Court judge of parallel jurisdiction on substantive grounds, as this is the exclusive prerogative of the Supreme Court through the appellate process. The judgment provides guidance on the proper remedies available when a party believes a court order is substantively wrong, emphasizing that appeal rather than rescission is the appropriate recourse.