The respondent bank advanced $500,000 to the first applicant for working capital on 9 December 2009. The second to seventh applicants offered unlimited guarantees as sureties and co-principal debtors, along with three mortgage bonds over various properties. When the first applicant failed to repay, the respondent sued under HC 1614/11 claiming $799,347.23 plus interest. The respondent also applied for summary judgment under HC 2262/11. While the summary judgment application was pending, the parties negotiated a settlement. On 4 April 2012, the parties' legal practitioners signed a consent order and four applicants signed a deed of settlement. The consent order claimed $910,000 (not $799,347.23). The respondent's legal practitioner lodged only the consent order with the registrar on 30 July 2012, which was issued on 3 September 2012. The applicants sought rescission of the consent order, alleging it was erroneously granted due to mistake, fraud, and that the deed of settlement (which was never signed by the respondent) should have been lodged with it.
The consent order granted under case number HC 2262/11 was set aside. The respondent was directed to apply for set down of the application for summary judgment within seven days of service of the order. The respondent was ordered to pay the applicants' costs.
A consent order can be rescinded under Rule 449(1)(c) of the High Court Rules, 1971 where it was granted as a result of a mistake common to the parties, provided there is a causative link between the mistake and the granting of the order. Where the legal practitioners representing parties to a consent order hold diametrically opposed views about the basis and effect of the settlement (specifically regarding the role of an accompanying deed of settlement), their minds are not ad idem and the consent is vitiated. A document signed by only one party cannot constitute a deed of settlement and has no legal effect. The court has discretionary power under both Rule 449 and common law to rescind consent orders to prevent injustice, and this power extends beyond the grounds set out in the Rules.
The court observed that judicial officers, like all human beings, are not immune to making mistakes, and Rule 449 gives them a leeway to revisit their orders and judgments to ensure they remain consonant with the notions of real and substantial justice. The court noted that a consent order and a deed of settlement, while both falling into the family of settled disputes, carry different legal weight - a consent order assumes the status of a court order once issued, while a deed of settlement remains merely an agreement until converted into a court order. The court commented that the conduct of the respondent's legal practitioner in lodging only the consent order while his letter suggested lodging both documents "leaves a lot to be desired" and gave the impression of apparent deceit, though the court ultimately based its decision on mistake rather than fraud.
This case is significant in Zimbabwean civil procedure as it clarifies the court's power to rescind consent orders under both Rule 449 of the High Court Rules, 1971 and common law. It emphasizes that consent orders must be based on genuine consensus ad idem between the parties' legal practitioners. The judgment clarifies the distinction between a consent order and a deed of settlement, and establishes that a partially signed deed of settlement (signed by only one party) is not enforceable and cannot be referred to as a true deed of settlement. The case also demonstrates the court's willingness to exercise its discretion to correct injustices arising from mistaken consent orders, ensuring real and substantial justice prevails over technicalities.