Wilbert Munonyara v CBZ Bank Limited and Others

The applicant filed an application for rescission of a default judgment that was granted by Justice Karwi on 17 February 2011 in case HC 9134/10. The applicant claimed the application was brought under Rule 449 of the High Court Rules 1971, alleging the judgment was erroneously granted. The applicant stated in paragraph 16 of his founding affidavit that the summons in the original case was affixed under the door and he did not see it timeously. The applicant had previously filed over 40 cases in respect of the same matter, none of which succeeded. Previous applications for rescission had been dismissed by Justice Bere in HH 50/14 and Justice Mathonsi in HH 91/15. An application for perpetual silence (decree of perpetual silence) had been filed against the applicant and was still pending. The first respondent opposed the application and raised points in limine regarding the nature of the application and that it was filed out of time.

• Whether the application was properly brought under Rule 449 of the High Court Rules 1971 dealing with correction, variation and rescission of judgments made erroneously
• Whether the application should have been brought under Rule 63 dealing with rescission of default judgments
• Whether the application was filed within the prescribed time limits
• Whether the applicant's conduct constituted an abuse of court process
• Whether the applicant articulated any error made by the judge in granting the original judgment

The application was dismissed with costs on a legal practitioner and client scale (higher scale of costs).

An application for rescission under Rule 449 of the High Court Rules 1971 requires the applicant to clearly articulate what error was made by the court in granting the judgment. Where an applicant fails to identify any judicial error and merely seeks to challenge a default judgment on the basis that summons was not properly served, the proper remedy is under Rule 63 (rescission of default judgment), not Rule 449. A party cannot circumvent time limitations applicable to one rule by improperly invoking another rule. The persistent filing of multiple applications on the same matter without merit constitutes an abuse of court process that warrants dismissal with costs on a higher scale (legal practitioner and client scale).

The court described the applicant as "a highly litigious person" and noted approvingly the observations of previous judges. Justice Bere had noted the ease with which the applicant found himself in and out of court on basically the same issue, subjecting the respondent to unnecessary costs. Justice Mathonsi had described the applicant as "a hyper litigious person" who had filed in excess of 25 applications over 4 years on the same matter and characterized the applicant as one who "regards the precincts of this court as a favourite playing ground." Tagu J observed that "a party that regards the precincts of this court as a favourite playing ground the way the applicant has done must know the consequences of that conduct."

This case is significant in Zimbabwean jurisprudence (note: this is a Zimbabwean High Court case, not South African) as it demonstrates the courts' approach to dealing with vexatious litigants and abuse of court process. It illustrates the proper application of Rule 449 versus Rule 63 of the High Court Rules, and establishes that parties cannot circumvent time limitations by incorrectly characterizing their applications. The case also demonstrates the court's willingness to impose punitive costs on a higher scale against parties who persistently abuse court processes. The reference to pending applications for perpetual silence (decree of perpetual silence) shows the remedies available to courts and parties facing hyper-litigious individuals.