Wild Kingdom Safaris v Katie Turner and Ryan Cheney

Wild Kingdom Safaris (applicant company), owned by the second respondent (Ryan Cheney) and his parents, sought to vary or correct an order granted in a divorce case (HH 712/19) between the first respondent (Katie Turner) and second respondent. In the divorce proceedings, first respondent was awarded items she had listed as matrimonial property, which the second respondent did not dispute except for a Mercedes Benz vehicle. The applicant company now claimed that certain property awarded to the first respondent in the divorce settlement was erroneously included through a common error of both parties, as it actually belonged to the applicant company. The second respondent's family had made several previous attempts through different sister companies (including Tiger Construction Private Limited in case HH 572/21) to recover the same property, all of which failed. At the hearing, the second respondent also applied for recusal of the presiding judge, which was rejected.

• Whether the applicant satisfied the requirements of Order 49 Rule 449(1)(c) of the 1971 High Court Rules (now Rule 29 of 2021 Rules) for variation or correction of a court order
• Whether there was a common mistake by both parties in including the property in the matrimonial distribution
• Whether the applicant established a causative link between any alleged mistake and the granting of the order
• Whether the applicant proved ownership of the disputed property
• Whether the doctrine of estoppel applied given previous failed litigation attempts
• Whether submissions in heads of argument not founded in the founding affidavit could be considered

The application was dismissed with costs.

For a court order to be varied or corrected under Rule 449(1)(c) on grounds of common mistake, the applicant must establish: (1) that there was a mistake common to both parties in the sense that they were ad idem on a particular matter; (2) a causative link between the mistake and the granting of the order; and (3) proof of their rights and interests in the property affected by the judgment. An application must stand or fall on the allegations in the founding affidavit, and while supplementation may sometimes be permissible, fresh legal grounds cannot be introduced solely in heads of argument where no foundation has been laid in the founding papers. Where parties to divorce proceedings mutually agreed to the distribution of property as matrimonial assets, there is no common mistake justifying variation of the resulting order.

The court observed that the second respondent blamed his legal representatives for the adverse outcome in the divorce proceedings rather than disputing that there was no common error when judgment was granted. The court noted that the second respondent had the option to appeal the decision in case HH 712/19 but did not do so. BACHI-MZAWAZI J also referenced HLATSHWAYO J's observation in Ragero Barbosa De SA v Herlander Barbosa De SA (SC 34/16) that points of law raised in heads of arguments need to be considered even if excluded in the founding affidavit, but found no exception in the present case to depart from the settled position that applications stand or fall on their founding papers. The court noted the pattern of repeated litigation by the second respondent's family through different corporate entities (Wild Kingdom Safaris and Tiger Construction Private Limited) attempting to recover the same property, all of which failed.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the strict requirement that applications must stand or fall on their founding affidavits, with limited scope to introduce new legal grounds in heads of argument; (2) the stringent requirements for invoking Rule 449 (now Rule 29) to vary or rescind court orders based on alleged common mistake; (3) the need for applicants to prove ownership of property they claim was erroneously distributed; (4) the courts' willingness to prevent abuse of process through repeated litigation by related parties using different corporate entities to attempt recovery of property already adjudicated in divorce proceedings. The case also demonstrates the application of estoppel principles where parties attempt to relitigate matters through sister companies after previous unsuccessful attempts.