Winsley Militala (In his capacity as Provisional Judicial Manager of Pavelong (Pvt) Ltd) and Pavelong (Pvt) Ltd v Drum City (Pvt) Ltd

On 2 June 2015, the High Court (per Mathonsi J) issued an order by consent in Case No. HC 448/14. The order included: (1) judgment in favour of the plaintiff (Pavelong) for US$16,000 with 5% interest from 23 July 2013; (2) a provision that the plaintiff would not execute until Case No. HC 9816/13 was finalized or judgment handed down; (3) allowance for the defendant to permit the plaintiff to amend its plea in HC 9816/13; and (4) no order as to costs. The respondent (Drum City), who was dominus litis in Case No. HC 9816/13, showed no interest in prosecuting that case. This left the applicant unable to execute on the judgment as fulfillment of the condition for execution was within the exclusive discretion of the defendant. The applicant sought to vary the order on the ground that it contained ambiguities.

• Whether the consent order of 2 June 2015 contained ambiguities warranting correction under Order 49 r 449(1) of the High Court Rules, 1971
• The extent to which a court should endorse settlements reached by parties to litigation in the form of court orders
• Whether an order must be clear, unambiguous and capable of enforcement
• Whether an order that is not capable of enforcement can be corrected by the court

The order granted by the court in Case No. HC 448/14 on 2 June 2015 was corrected to read: (1) The plaintiff's application to withdraw its exception to the defendant's claim-in-reconvention is granted; (2) Judgment is granted in favour of the plaintiff against the defendant for payment of US$16,000.00 together with interest at 5% per annum from 23 July 2013 to the date of payment in full; (3) The plaintiff is granted leave to amend its plea in Case No. HC 9816/13; (4) There be no order as to costs. The respondent was ordered to pay the applicants' costs of suit in the correction application.

A court order, including a consent order, must be clear, unambiguous and capable of enforcement. An order that contains ambiguities rendering it incapable of enforcement may be corrected by the court under Order 49 r 449(1)(b) of the High Court Rules, 1971. An order is ambiguous and unenforceable where: (1) it reads merely as a record of agreements or admissions rather than as an actual court order granting relief; (2) it contains conditions whose fulfillment depends on the exclusive discretion of one party, leaving the other party unable to enforce the order; (3) it contains unclear references to unstated matters; or (4) it grants relief in a manner that suggests a party rather than the court is exercising judicial power. A judgment must signify closure of the dispute and provide ultimate relief to the successful party, and any terms requiring interpretation by another court or calling for further litigation have no place in a judgment.

The court made observations on the issue of the extent to which courts should endorse settlements reached by parties to litigation. Zhou J noted that in settlements, parties engage in bargaining where each party seeks to entrench its position to protect its interests while limiting the advantages of the other party. The court cited with approval the observations in Yakub Mahamed v Adam Ebrahim Mohammed Dudhia & Anor HH 140-18 regarding problems that can be created by incorporating deeds of settlement in orders, noting that it is the manner in which the deed of settlement is incorporated that determines the validity of the order. The court observed that while those remarks were made in the context of an order incorporating a deed of settlement, they apply with equal force to any order that records and reflects a settlement reached by litigants even where there is no separate deed of settlement.

This case is significant in Zimbabwean jurisprudence (applicable to South African law by analogy given the similar legal systems and reliance on South African precedent) as it establishes important principles regarding consent orders and the requirements for enforceable court orders. It emphasizes that court orders, even those reflecting settlements between parties, must be clear, unambiguous and capable of enforcement without requiring further litigation or interpretation. The case demonstrates judicial willingness to correct defective consent orders that contain ambiguities preventing enforcement, particularly where one party is left at the mercy of the other party's discretion. It serves as a warning to legal practitioners to ensure that consent orders are properly drafted with clear, enforceable terms.