RUSHWAYA and Others v SWIMMING POOL & UNDERWATER REPAIR (PVT) LTD and Others (378 of 2025) [2025] ZWHHC 378 (27 June 2025)

4 HH 378 - 25 HC 5589/23 Ref Case: HC 7617/15 HC 2918/18 HC 717/20 HC 7291/22 JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS (PVT) LTD versus SWIMMING POOL & UNDERWATER REPAIR (PVT) LTD and AEPROMM RESOURCES (PVT) LTD and TOLROSE INVESTMENTS (PVT) LTD and PATTERSON FUNGAYI TIMBA and THE PROVINCIAL MINING DIRECTOR N.O. and THE REGISTRAR OF COMPANIES N.O. HIGH COURT OF ZIMBABWE **CHITAPI J** HARARE; 27 June 2025 _**Opposed Court Application**_ _V Masvaya_ , for the applicants _R. Kadhanu_ , for the 1st – 4th respondents CHITAPI J: The first and second applicants James and Annie Rushwaya are adult persons who are husband and wife respectively. The third applicant is a registered company represented by the first applicant. The first to the third respondents are registered companies in terms of the laws of Zimbabwe and carry on business in Zimbabwe. The fourth respondent is Patterson Fungai Timba, a male adult of Harare. The fifth respondent is the Provincial Mining Director for Mashonaland West Province sued or cited in his official capacity. The sixth respondent is the Registrar of Companies also cited in his or her nominal capacity. The fifth and sixth respondents are not protagonists with the applicants. They are cited because in the event of the dispute between the first and second applicants and the first to the fourth respondent being resolved, the relief which may be granted will involve them in giving effect to it. This application was filed by the applicants to seek condonation of the late filing of an application to set aside or rescind a consent order granted in Case No. HC 7617/15 on 27 June 2017. Case No. HC 7617/15 was an action matter in which the first, second, third and fourth defendants herein were the plaintiffs and the two applicants herein the defendants. At the center of the dispute in Case No. HC 7617/15 was the shareholding structure and incidence of shareholding in the second and third respondents herein who were the second and third defendants therein. The matter, Case No. HC 7617/15 was at trial stage and on the date of trial the applicants were not in attendance. However their legal practitioner _J. Maupa_ was present. The court _a quo_ per Tagu J entered a judgment by consent in terms of which the following order was made: “IT IS ORDERED BY CONSENT THAT: 1. The shareholding in second and third plaintiffs is in terms of the returns of allotment forms no. CR 2 filed on the 28th September 2004 and 31 March 2010 respectively that is to say: 1. Swimming Pool and Underwater Repair (Pvt) Ltd hold 6150 shares in each entity. 2. Jameson Rushwaya holds 2348 shares in each entity. 3. One way Ministries holds 1000 shares in each entity. 4. Tongesai Kapondo holds 499 shares in each entity; and 5. Annie Rushwaya holds 1 share on each entity. 2. The directors of the second and third plaintiffs are as stated in the CR 14s filed with the fifth defendant on the 31st March 2010 indicating the directors in each entity to be as follows: Sabtenia Jakaza Tongesai Kapondo Stephenson Timba Margret Ditima Patterson Fungai Timba; and Jameson Rushwaya with; Samuel Mazowe as Secretary 3. Each party shall bear its costs.” The applicants intend to apply for the setting aside of the said judgment by consent. They pray for relief set out in their draft order as follows: “IT IS ORDERED THAT: 1. The application for condonation of late filing of the application to set aside or rescind the consent order granted in this Honourable Court under case no. HC 7617/15 on 27 June 2017 be and is hereby granted. 2. Applicants be and are hereby given 10 days from the date of this order to file their application for the rescission or setting aside of the said consent order granted in case no. HC 7617/15. 3. The costs of this application are hereby made costs in the main cause.” The applicant advisedly considered that given that the consent judgment was granted almost three years back in June 2017 and that they were intending to apply for its rescission and or setting aside in January 2020, they required to seek condonation and extension of time to file the application. They then filed this application. The application was vehemently opposed by the first to fourth respondent who filed a composite affidavit sworn to by the fourth respondent. The said respondents raised a point _in limine_ to the effect that there was no proper application before the court because the consent order which the applicants sought to challenge cannot be attacked through a rescission of judgment application. In consequence, so averred the respondents this application for condonation lacked foundation since condonation was being sought for purposes of filing an incompetent application for rescission of judgment. Mr _Kadhani_ for the respondents strenously argued that there was in any event no need for the condonation application because unlike with rescission of default judgment applications which must be filed within thirty days of the applicant having knowledge of the default judge, where an applicant seeks the setting aside of a consent order, the rules did not provide for a time limit. Thus, in the respondents’ submission, where an applicant seeks the setting aside of a judgment by consent, condonation is not necessary and such an application can be filed at any time, as of right so to speak. The respondents’ counsel submitted that the applicants ought to have filed a substantive application without the need to seek condonation. Counsel prayed that the application be struck off the roll with costs on the legal practitioner and client scale because the application being unnecessary, unnecessarily burdened the court with a case that should never be and that the respondents had been put to unnecessary expense. I asked Mr _Kadhani_ whether where a litigant acts in ignorance of the law such litigant stood to be penalized with an order for punitive costs. The problem of course is that when it comes to ignorance of the law arising from process prepared and filed by a legal practitioner, the person who is ignorant of the law is in fact the legal practitioner and if punitive costs be awarded then rightfully and in a proper case, the legal practitioner who has acted in ignorance of the law may well be penalized with an order of costs personally and would be given an opportunity to make representations before such a drastic order may be made against him. Ignorance of the law per se is not a ground without ado for penalizing a litigant or his or her legal practitioner with a punitive costs order. I do not intend to debate this aspect of the matter any further than I have gone. Suffice however that I was not persuaded by Mr _Kadhani_ assuming that his point _in limine_ has substance, to grant punitive costs. Since the issue of the propriety of this application was a matter that would dispose of the application in substance if it succeeded, counsel agreed to file additional heads of argument on the issue of whether or not condonation is required to be sought first before a litigant applies for the setting aside of a judgment by consent. Both counsel filed supplementary heads of argument on the issue. It is not necessary to go to much length concerning the arguments advanced because following submissions and exchanges between the court and Mr _Kadhani_ , counsel to his credit conceded and abandoned his argument that condonation was not necessary where a litigant seeks the setting aside of an order by consent. A more or less similar issue fell for determination in the case of _Chevhu Housing Co – operative_ v _Crest Breeders_ SC 19/21, a judgment of Mathonsi JA. The applicant in that case was seeking the rescission of a judgment allegedly granted in error under rule 449 of the High Court which would be the rule applicable when this application was filed. That rule which is now rule 29 of the High Court Rule 2021 provided for the correction, variation and rescission of judgments and order. Any party affected by a judgment granted in that party’s absence may apply on notice to all affected or interested parties to court for the setting aside of that judgment, its variation or its correction. Whilst the 2021 rules provide a time limit of thirty (30) days from the date of knowledge of the judgment to utilize the provisions of rules 29, Section 449 of the repealed High Court Rules 1971 which were in force when this litigation commenced did not provide for a time limit within which to file the application. The judgment of Mathonsi JA put the argument to rest when the learned judge noted as follows after traversing a number of authorities therein mentioned: “In my view rule 449 is not an open cheque to bring an application for rescission, even where it applies at any time in the life of a person. It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order. Where for some reason the application is not so made an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.” It was therefore settled that rule 449 applications had to be brought within a reasonable period taking into account all the circumstances of the case. In _casu_ this application was therefore properly made and the point _in limine_ had to and was dismissed thus paving the way for hearing of the condonation application on the merits. The law on condonation and extensions of time to file a court process out of time has been traversed by the courts. However the authorities relate mainly to condonation where rules of court provide specifically for the period within which a process should be filed, for example, noting appeals, rescission of judgment and others in which a time limit for filing the application is set out. In _casu_ , the principle applicable is that an applicant seeking relief in relation to a failure to file a process within a reasonable time must seek condonation. In the case of _Manyame and Another_ v _Emily Karimazondo & 10 Ors_ HH 750/15 Mathonsi J (as then he was) having noted that rule 449 was silent on the time span within which to make an application under that rule, stated that a period of four (4) years to make an application after the applicant has had knowledge of the judgment was an unreasonable period. There is no doubt that what amounts to a reasonable period is imprecise. What amounts to a reasonable period in any specific case depends on the circumstances of the specific case. The court has a discretion which it must judiciously exercise in determining whether in a particular case the applicant may be condoned and granted leave to file a rule 449 application out of time. The facts averred by the first applicant in the founding affidavit adopted by the second applicant were that after getting to know of the consent judgment he contacted the legal practitioner Mr _Maupa_ and protested the same. The applicants do not give a precise date on which the first applicant learnt of the judgment. In this regard, a note is made that applicants must give specific dates when they knew of the judgment they seek to impugn so that it becomes easy for the court to assess the reasonableness of the delay. In _casu_ , the applicants averred that his legal practitioner dissuaded them from seeking to challenge the judgment citing that a consent judgment is insurmountable to challenge and that the process was costly. The first applicant averred that he had been chased away from the mine house he occupied and was no longer involved in the mining activities at the disputed mining location. He averred that he had received threats of arrest from the police. He also averred that he was informed of the involvement of one Russel Goreraza, the stepson to the late President of Zimbabwe, Robert Gabriel Mugabe who purportedly represented a company Balware Consulting (Pvt) Ltd which was said to have bought the first respondent’s share in Tolrose Investments (Pvt) Ltd which owns Glencairn Mine which is ultimately at the center of the dispute of ownership which anchors the litigation in case no. HC 7617/15. The applicant averred that he and his wife the second applicants sought police protection to no avail as they were warned by police including the Officer Commanding Kadoma District, Chief Superintendent Chigaru that their issue was politically a hot potato and that should they return to the mine or to their residence at the mine they would be arrested. The second applicant as averred by the first applicant and confirmed by her was arrested when she went to the police with her workers only to be released at court. The first applicant further averred that he received information that his life was in danger forcing him to go into hiding within Kadoma and Chakari farms. The main case was set down during this period. He averred that he was out of communication until he eventually managed to speak with his wife who referred him to their legal practitioner Mr Josiniah _Maupa_ who said that after failing to get a response to his messages about the court hearing, the legal practitioner had assumed that all was well and consented to judgment. He averred as already noted that Mr _Maupa_ advised him of the difficulties associated with rescinding a consent judgment and costs involved. The applicant averred that he consulted his present legal practitioners who advised him that he could properly follow his rights, hence this application. The applicant averred that it was necessary that he was advised of the necessity to obtain an affidavit or explanation from Mr _Maupa_. Indeed the applicant attached copies of letters dated 13 and 17th January 2020 written to Mr _Maupa_ by the applicants’ legal practitioners seeking his comments by affidavit to explain the circumstances. The letters were according to the applicants, written after the first applicant had made several unanswered telephone calls and when Mr _Maupa_ did reply on the few occasions he did, he advised the applicants that he was out of town. It was averred that letters had to be formally written because he was unco-operative. The applicants attached to the founding affidavit a letter from the applicants’ legal practitioner Mr _Maupa_ dated 22 June 2017 and addressed to the respondents’ legal practitioners advising them that the whereabouts of the first applicant was unknown for the past two months and that his wife was unaware of his whereabouts. The letter indicated why agency had been renounced and reassumed. The respondents interpreted the renunciation and assumption of agency as a case of a lawyer putting pressure on a client to pay fees. Such construction is speculative on the part of the respondents and is contrary to what the letter states. The letter was clear that Mr _Maupa_ had no instructions from the first respondent on the trial and would seek guidance from the court and consider applying for renunciation of agency because of his predicament. The letter tends to corroborate the fact of the first applicant’s unavailability and his being not reachable. The respondents in relation to the applicants’ predicament of being hounded out of the mine and mine house he occupied did not commit to disproving the averments. They took the stance that the applicants’ legal practitioner Mr _Maupa_ must have acted with full instruction in consenting to judgment. The applicants averred on another point that Mr _Maupa_ could not have acted to validly consent in relation to the third applicant as there was no meeting of directors of the third applicant to pass a resolution to consent to the judgment. Another issue arose during the hearing and it related to the propriety of how the consent order was procured. The applicants averred that the procedure for processing consent orders as provided for in Order 8 Rule 54 of the High Court Rules 1971 was not followed. The provisions of rule 54 provided that consent to judgment without appearance should be in writing and be signed by the defendant personally or by the legal practitioner who entered appearance for that defendant. The signature of the defendant should be verified by an affidavit made by someone else who is not the defendant or by signature of the legal practitioner who represents him and not for the other party. The respondents strongly objected to the raising of the issue as being prejudicial to the respondents and averred that the judgment by consent was properly procured. From my perspective, a court of law will always be guided by the laws and rules of court. Since a consent to judgment involves an elaborate procedure and documents which support it are listed, the court merely has to look at its record and look for and scrutinize the enabling documents and mark them off as compliant or non-compliant. It is a content and quality check guided by the rules. A consideration of the record in the main case has not revealed that the plaintiffs or Mr _Maupa_ signed any filed consent. The draft consent order does not bear signatures. To that extent the point is material and has a bearing on the prospects of success of the proposed application for rescission or setting aside of the consent judgment should condonation be granted. It is trite that a court of law is entitled to raise a point of law which is apparent on the papers. See _Cusa_ v _Tao Ying Metal Industries_ 2009 (2) SA 204 at 225. On the substance of the prospects of success on the merits, for purposes of this application I have to note that the matter was set down for trial on issues determined to be real issues referred by a judge at pre – trial conference for determination. The parties were poised to give evidence at trial. Only the absence of the first applicant resulted in the trial not taking off and the matter then ended through the impugned consent order. There is no doubt from the pleadings that the parties were in serious dispute over their shareholding in the various companies to which their dispute related. The consent order would even if accepted to be valid as it must unless set aside, presented a sudden about turn on the part of the defendants if one has regard to the pleadings wherein a reading of the summons, declaration and plea show that the dispute of the shareholding was accepted to be there. The main issue referred for trial was the court should determine the correct shareholding in the light of the competing positions. In the absence of clear cut facts to show that the applicants’ claims had no foundation, it would be remiss to hold that they would not have a plausible case with prospects of success. In the final analysis, in the exercise of the discretion which is reposed in the court in such applications, I first note that the application is a delicate one to determine because the court strives to be careful of making definite findings of fact which would if this application is granted and a rescission of judgment is filed, this court would have effectively determined the rescission application to all intent and purposes. This is why one school of thought advances the proposition that where a party seeks condonation for late filing of rescission of a default judgment the party should deal with condonation in the same application for rescission. Firstly the explanation for not acting from the date of judgment until January 2020 was imprecisely pleaded. It is important for counsel to be properly advised on the evidential aspects of pleading a cause. Where time is of the essence in a cause, the applicant or respondent as the case may should be precise in terms of the dates and times that factual incidents on which the cause is founded or supported occurred. A failure to do so leaves the court in a position where it faces difficulties in appreciating how the applicant has accounted for the delay. In _casu_ , the applicants pleaded that the first applicant was a victim of unlawful removal from his dwelling, threats to his life and did not get police protection. This was not controverted by any contra evidence. He went into hibernation and the fact of his whereabouts being unknown to his legal practitioners was communicated a few before trial date to the respondents’ legal practitioners. In relation to the conduct of the legal practitioner Mr _Maupa,_ there was produced, written evidence that he was requested to give an explanation for his consenting to judgment. There was no response to the request. Such conduct by a legal practitioner smacks of unprofessional conduct. Correspondence should not be ignored. The efforts to contact the legal practitioner is inconsistent with the conduct of a client whose legal practitioner has carried out the mandate given to him or her. Whether or not in such circumstances the applicants’ assertion that the consent was not procured from him before it was entered, taken together with the doubts surrounding its propriety, regard being had to rule 54 can be dismissed out of hand is a matter for the rescission or setting aside of the consent judgment court to make a final decision upon. For purposes of condonation I hold that the applicants have prospects of success in seeking rescission on the averments made herein if they depend on them in the proposed rescission application. Therefore in determining this matter, I accept that the explanation for the delay was not articulately expressed. I take the approach that where the explanation for delay is not well expressed or unsatisfactory, the prospects of success should at least be very good. See _Prize Mahachi_ v _Barclays Bank_ SC 6/2006. In my assessment there are bright prospects of success in this case for the reasons I have discussed and most significantly how the consent to judgment was processed. The correspondence between the legal practitioners and its filing at court shows that the draft order by consent was sent under cover of a letter dated 26 June 2017 by the respondents’ legal practitioners to which they attached what they referred to as “the draft order by consent which captures the agreement by the parties which was presented in court for the judge’s endorsement.”. The draft attached thereto has no signatures. It could well be that there is an explanation for that but that really is for the rescission/rescinding court. What is clear is that _ex facie_ , the record if perused, there is a question mark on whether the consent complied with the rules as it does not bear any signatures of either the parties or their legal practitioners. I should before I conclude note that counsel relied heavily on cases which deal with delays and condonation and extensions of time to note appeals or seek rescission of default judgment and the like. Those processes provide defined time limits for filing the processes. Rule 449 applications did not provide for such time limits hence decided cases on that rule has seen courts allowing applications filed within periods which if the application was for condonation in cases where time limits are set the delays would be held to be so inordinate as to require very convincing explanations to succeed. The bar is higher in those applications. The exercise of discretion in a 449 application was not fettered by a consideration of a fixed time limit for filing the application and the courts were more generous depending on the circumstances of each case in the exercise of discretion to allow for the time to file the application under rule 449. Rule 29 of the current rules has dealt with the issue of time limits for those applications previously covered under rule 449 of the repealed rules. In the result, when all the circumstances of the matter are considered, I determine that the period from 26 June 2017 when judgement was entered to 29 January 2020 when this application was filed, a period of two and half years (30 months) is not in the circumstances of this case so inordinate as to result in the court dismissing the application for delay. The delay considered together with the prospects of success on the merits of the proposed rescission application and the importance of the matter to the parties and the justiciability of having the court determine the correct shareholding of a juristic entity which cannot speak for itself, lead me to hold that in the interest of justice that the applicants are permitted to file the rescission application. There was not shown a demonstrable prejudice which the first respondent would suffer by granting this application which cannot be remedied by costs. As regards costs, they are in the discretion of the court. This application is a prelude to the filing of the rescission or rescinding application which should now be filed in accordance with rule 29 following the repeal of rule 449. It is proper that costs are made to be in the cause in the application for rescission of judgment. In the event however that the applicants do not file the rescission of judgment, they shall pay the costs of this application. This application is disposed of as follows: IT IS ORDERED THAT: 1. The application succeeds. 2. The applicants are granted leave to file their intended application in terms of rule 29 of the High Court Rules (2021) within ten (10) days of the date of this order. 3. The costs of the application are costs in the cause in the application envisaged in paragraph (2) above. 4. Should the applicants fail to comply with paragraph 2 above, the applicants shall pay the respondents costs of this application. **Chitapi J** : ……………………………………………………….. _Chitsa, Masvaya Law Chambers_ , first to third applicants’ legal practitioners _Atherstone & Cook_, first to fourth respondents’ legal practitioners