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Judgment

7 HH 434 - 25 HC 3669/20 NETSAI KALENGA versus ZHOU XIN and CHE MENG XU and AROSUME PROPERTY DEVELOPMENT (PRIVATE) LIMITED and SALLY MUGABE HEIGHT HOUSING COOPERATIVE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE DEMBURE J HARARE: 16 June & 21 July 2025. Civil trial: Preliminary objection S Dizwani with L. Manyika, for the plaintiff S M Bwanya, for the 1st & 2nd defendants F Nyangani, for the 3rd defendant No appearances for the 4th – 6th defendants DEMBURE J: INTRODUCTION 1. The record of this action was placed before me for trial. On 16 June 2025, before the trial could commence, the third defendant raised a preliminary objection that there is no issue for trial as between the plaintiff and the third defendant. The ground of that objection was that the third defendant filed a consent to judgment, and it was argued that that disposed of the matter. 2. The objection was strenuously opposed by the plaintiff. After hearing submissions from the legal counsels for the plaintiff and the third respondents, the court reserved judgment sine die on the preliminary objection. This is the judgment on the said preliminary point. FACTUAL BACKGROUND 3. The dispute concerns a certain piece of land situate in the District of Salisbury called stand 314 Carrick Creagh Township of Carrick Creagh of Section 4 of Borrowdale Estate (“the property or stand”). The stand is a residential property. The property is currently registered in the names of the first and second defendants with the Deeds registry under Deed of Transfer number 1469/2012. The two defendants obtained transfer of ownership from the third defendant, and the transfer was registered on 29 March 2012. 4. On 15 July 2020, the plaintiff had a summons issued against the defendants. The plaintiff’s claim is for: “a) an order for the cancellation of the title Deed No. 1469/2012 issued in favour of the 1st and 2nd defendants in respect of a certain piece of property known as stand 314 Carrick Creagh Township of Carrick Creagh of Section 4 of Borrowdale Estate. b) an order declaring the plaintiff to be the lawful holder of rights, title and interests relating to the above property. c) an order directing the 5th Defendant to facilitate registration of title in Plaintiff’s favour vis-à-vis the property described in (a) above. d) an order compelling the 6th Defendant to register the Plaintiff as the title holder to the above property subject to 5th Defendant’s input contemplated in (c) above. ALTERNATIVELY e) an order that 3rd, 4th and 5th Defendants variously, be and are hereby ordered to pay damages to the Plaintiff amounting to $25 000 000,00 together with prescribed interest from the date of summons to the date of full payment. ALTERNATIVELY, f) that 3rd, 4th and 5th Defendants be and are hereby ordered to compensate the Plaintiff of the contributions she made towards the project in the sum of $20 000 000,00. g) an order that the Defendants’ liability shall be joint and several, one paying the other to be absolved. h) an order that the Defendants shall bear the costs of suit at the rate of legal practitioner/client.” 5. It was pleaded that from 2004 up to the time of the issue of the summons, the plaintiff had been a member of the fourth defendant cooperative, which she joined to acquire the stand in question. Sometime in 2007, the fourth defendant entered into a tripartite agreement with the third and fifth defendants in terms of which the fifth defendant would provide land for allocation to nominated members of the fourth defendant. The third defendant would also render infrastructure services on the land at a cost to be borne by the fourth defendant’s members and facilitate the issuance of leases by the fifth defendant in respect of those members who were paid up. The third defendant would also get some stands as security against the default by members of their obligations to pay for the development costs. 6. The plaintiff’s case was that in 2007, she was identified by the fourth defendant and registered with the third defendant for benefit relating to the stand in question. She also alleged that she assumed immediate occupation and paid the third defendant the development costs pending the issuance of a lease agreement by the fifth defendant. She further alleged that she became aware in 2020 that the third defendant had fraudulently obtained title of the stand and transferred the property to the first and second defendants. 7. The first and second defendants entered an appearance to defend, duly represented by Mutuso, Taruvinga & Mhiribidi. As of the date of the hearing, Mr Bwanya represented them. I must state, however, that I did not see these two defendants’ pleas in the record before me. On the date of the hearing, Mr Bwanya undertook to upload the copy thereof, but up to the date of this judgment, nothing has been uploaded. Since the objection could still be determined without considering that pleading, I will proceed to issue my decision. 8. As for the third defendant, it duly filed its plea on 17 December 2020. The third defendant contended that the plaintiff was never registered with it for benefit in relation to the stand in question. It denied that the plaintiff complied with any payment obligations imposed by the third defendant. It was further pleaded that the plaintiff was never issued a lease because she never complied with or adhered to her obligations to pay the requisite fees due for the project. The stand, it was also alleged, was given to it in terms of the tripartite agreement and was only sold and transferred to the first and second defendants openly in 2012. It denied that there were any shenanigans as alleged. 9. The further averments were that the first and second defendants were bona fide purchasers of the property. The third defendant also denied that the property was worth $25,000,000.00. It was further averred that the plaintiff never contributed $20,000,000.00 in development charges. The fifth defendant also opposed the claim, and in his plea, he denied that he allocated the stand to the plaintiff. The fifth defendant further pleaded that the claim had nothing to do with him, as it was the third defendant who would recommend the plaintiff for processing of a lease agreement. 10. The parties filed all their pleadings, and after the close of pleadings, held a pre-trial conference on 30 March 2023. On 3 August 2023, the third defendant filed a consent to judgment to the plaintiff’s alternative relief sought for payment of ZLW25,000,000.00. The plaintiff subsequently filed a notice to amend her summons and declaration by the deletion of all the alternative reliefs. There was no objection to the proposed amendments. 11. The matter was set down for a pre-trial conference (“PTC”) before Katiyo J. Only the first and second defendants and the plaintiff, duly represented by their legal practitioners, attended the pre-trial conference. On 8 October 2024, the matter was referred to trial on the following issues: “i. Whether or not title relating to stand 314 Carrick Creagh of section 4 of Borrowdale Estate is cancellable? If so, ii. Whether or not the Plaintiff is entitled to ownership of the same and the conditions thereof. Alternatively, iii. Whether or not the plaintiff is anyhow entitled to compensation from any of the defendants and if so, the quantum thereof. iv. Whether or not plaintiff was a member of the 3rd defendant. v. What scale of costs to be awarded to the successful party.” 12. Before the commencement of the trial, the third defendant raised a preliminary objection, which it was argued is a legal point that goes to the root of the matter. SUBMISSIONS MADE BY THE PARTIES THIRD DEFENDANT’S SUBMISSIONS 13. Mr Nyangani submitted that the preliminary point raised by the third defendant is that there is no issue for trial as between the third defendant and the plaintiff. He stated that the reason was that, in terms of the law and procedure, the case between the plaintiff and the third defendant has been settled by virtue of a consent to judgment which appears on p 55 of the record. The claim before the court in the summons is couched in a manner where the plaintiff has given the defendant options to accept the main claim or the alternative claims. The defendant has an election to make. The summons is at pp 2-3 of the record. 14. Counsel went on to submit that in terms of paras (a), (b) and (c), the plaintiff is seeking an order cancelling the title deed. In para (d), the plaintiff is seeking the registration of the plaintiff as the title holder and alternatively seeks payment of $25,000,000.00 alternatively, payment of $20,000,000.00. These are alternative claims to the main claim. To buttress that the plaintiff in para (g) seeks joint liability of the defendants. He argued that it is trite that where the plaintiff couches its claim in this manner, whereby it gives the defendant alternatives, it goes without saying that the defendant may elect to settle one of those alternative claims. Put differently, what the plaintiff did was simply to say give me (a) or (b) because you cannot have both. Rule 21(1) of the High Court Rules, 2021, is very clear. The entering of a consent to judgment is a unilateral act of the defendant. It is an avenue open to the defendant to consent to judgment at anytime after the service of the summons. 15. Mr Nyangani further submitted that the consent to judgment disposes of the matter. He argued that the plaintiff said the defendant was not supposed to have consented to the judgment because the defendant knew we intended to amend the summons, and that this consent to judgment is irregular. There is nothing irregular procedurally in the consent to judgment filed in August 2023. The parties had a round table conference in March 2023. See p 63. The consent was filed in August, some months after the parties had met. The plaintiff did not do anything after that. The consent to judgment entitles the plaintiff to make an application for judgment. No judgment was entered by consent. The consent is valid. Our law is clear that parties must act vigilantly; the principle “vigilantibus non dormientibus jura subveniunt” (the law helps the vigilant, not the sluggard). Their sluggish approach means that they have not defended their rights. 16. Counsel also argued that the consent is there on record. It is not irregular. If the plaintiff thought that the consent was irregular, the correct procedure is to apply to strike out that irregular pleading. See Founders Building Society v Dalib (Pvt) Ltd 1998 (1) ZLR 256 per Gillespie J. He further referred the court to the case of Simbi v Arosume Property Development (Pvt) Ltd & Ors HH 193/20. He argued that in that judgment before Tagu J (as he then was), the plaintiff sought to resist a consent to judgment which was entered in respect of its alternative claim arguing that it was not up to the defendant to opt to pay damages where the plaintiff had sought the main claim for specific performance. I pause to state that this court queried whether, in that decision, the question as before this court was determined. Mr Nyangani replied that the matter was finally determined by Chinamora J, who accepted their argument. When questioned about the rationality of accepting an amount that the defendant knew economically was worthless, counsel insisted that the defendant had options because the claim was in the main with alternative claims. The defendant made its election to accept the alternative claim. 17. Mr Nyangani also argued that the case has been improperly set down for trial. He further stated that this is why the third defendant did not file any further papers. The purported attempt to amend the summons is a legal nullity because one cannot amend a summons which had already been consented to. Counsel accordingly prayed that it be ordered that the case against the third defendant is no longer before the court and has been settled. PLAINTIFF’S SUBMISSIONS 18. Ms Dizwani argued that the issue before the court is whether there is a consent that would stop the trial. The question is whether the consent to judgment before the court is enough to stop the proceedings or dispose of the matter. It was submitted that it does not. She referred the court to rule 21(1) and (2). In terms of subrule (1), where a party consents to judgment, the plaintiff has an election or option to make a chamber application for judgment and judgment may be given in terms of that consent. The fact that the plaintiff has the discretion to make a chamber application means that the plaintiff must have consented to that consent to judgment. The key word is “may”, which means that the plaintiff may choose to or not to accept the consent. It is discretionary. 19. Counsel went on to submit that the case of Simbi v Arosume Property Development & Ors is not binding because Tagu J did not make a substantive adjudication on whether or not the consent to judgment was proper. The court cannot rely on the notion that Chinamora J consented. There is nothing before the court that shows that the consent to judgment was accepted. This matter is distinct from the case of Simbi. Counsel referred the court to the case of First Class Enterprises Ltd v Scanlink (Pvt) Ltd HH 187/10. In that matter, at the pre-trial conference, the defendant offered to settle the matter by paying the money in the summons, and the plaintiff undertook to file an amendment. The matter was then set down for trial before the plaintiff had amended its summons. The defendant took a chance and filed a consent to judgment before the amendment. The trial judge entered judgment mero motu. The sentiments of Gowora J therein are instructive. The judgment was set aside. The court relied on the English case of Lambet v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) S.A. 178. Counsel further quoted the sentiments expressed by the court. What the opposing counsel was saying is the same as stated by counsel in this case. 20. Ms Dizwani further submitted that it is not true that the defendants were not aware of the intention to amend. At p 53 of the record, there is a letter authored by the plaintiff’s legal practitioners in which they registered their disappointment at the conduct of the third defendant’s legal practitioners. See para 4 thereof. The letter was not replied to. The third defendant knew very well that the plaintiff intended to amend its summons. Since the third defendant knew that conduct had been shunned, that is a reason to have it set aside. In the Molete case, the court noted that the unilateral act of paying into court is not the termination of the proceedings, and that acceptance is essential. That acceptance is not available. 21. It was also submitted that the defendant argued that because the plaintiff did not strike out the consent to judgment, the consent is valid, but an application can be made at any stage. The amendment seeks to address the alternative claim. Ms Dizwani also argued that there is a primary relief which the plaintiff is seeking. The plaintiff believes that the alternative claim is only resorted to as a fallback relief if the court does not give the primary relief. It is simple practice where a party claim an amount of money or, in the alternative, claims for unjust enrichment, the court first deals with the main relief before deciding the alternative claim. There is a notice of amendment which was not objected to. The consent was not properly done. It was irregular in that it was incomplete because it only catered for the amount and not the interest, as claimed by the plaintiff. It does not make any reference to the $20,000,000.00 compensation which was claimed by the plaintiff. 22. Ms Dizwani also argued that the consent is irregular because no effect was given to that consent by way of a chamber application. In terms of rule 21(1), to have effect, the plaintiff must accept it. She did not. The plaintiff did not make a chamber application to accept it. The consent to judgment does not dispose of the main claim. The plaintiff still has the right in the main claim, which is the primary remedy she is seeking. In terms of subrule 2 of rule 21, the court may set aside such consent where good and sufficient cause is shown. Subrule (2) assists the plaintiff’s cause that there is no judgment before the court. It was finally submitted that the plaintiff will seek leave to strike out the consent to judgment after the court has made its determination on the point. THIRD DEFENDANT’S REPLYING SUBMISSIONS 23. Mr Nyangani, in reply, submitted that counsel for the plaintiff conceded that there is need for the plaintiff to make an application to strike out the consent to judgment if they believe it is irregular. He argued that the conclusion from her submissions buttresses that. It has not been said that the consent fell foul of rule 21. There was a submission that the consent is irregular because it did not specify the interest. A consent can be for part of the claim. The case can proceed on the issue of interest. He further argued that the First Class case was dealing with an application for rescission of a consent judgment. It is distinguishable from the present case. Unlike in that case, the plaintiff had more than five months from the date of the round table conference to amend its pleadings. 24. He also submitted that this is a 2020 case, and changes in currency, which prompted them to amend, happened in 2021. They sat on their laurels. There is a proper consent filed of record. It is the plaintiff who should apply to strike it out. The argument that rule 21(1) allows them to accept the consent is untenable. The rule allows the defendant to unilaterally consent to judgment. It does not require the plaintiff’s consent to that consent to judgment. The plaintiff’s argument would render the rules nonsensical. For the court to say the consent to judgment is invalid if the plaintiff did not follow through with the procedure in rule 21(1) would be to render the whole rule meaningless. The court should not accept such an argument. ISSUE FOR DETERMINATION 25. The question to be determined by the court is whether or not the matter had been disposed of or settled following the filing of the third defendant’s consent to judgment. THE LAW 26. The law permits a defendant in any action except where the relief sought is one which affect status to consent in whole or in part to judgment for the plaintiff’s claim. The plaintiff may make a chamber application for judgment to be entered in terms of that consent. The relevant provisions of the rule 21 read: “Judgment by consent 21.(1) Save in actions for relief affecting status, at any time after service of summons a defendant may consent, in whole or in part to judgment without appearing in court and such consent to judgment shall be in writing and signed by the defendant personally or by a legal practitioner who has entered appearance to defend on his or her behalf and where the defendant has personally signed a consent to judgment, his or her signature shall either be witnessed by a legal practitioner acting for such defendant and not for the plaintiff or be verified by affidavit and upon filing a consent to judgment with the registrar the plaintiff may make a chamber application for judgment and thereafter a judge may give judgment according to the consent. (2) A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute the action and such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court considers just.” (my emphasis) 27. It is trite that it is only an order by consent that extinguishes the cause of action. The order is also granted by the court at the instance of the parties. See Technoimpex JSC v (1) Rajendrakumar Jog & Ors SC 29/22 at p 11, where Uchena JA said: “In Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S) at p 496, this Court stated that an order by consent “extinguishes any cause of action that existed.” At p 10, the court also remarked that: “A consent to a court order is a decision consciously made by a party fully appreciating the facts and the law applicable to the dispute between the parties. Consent to a court order cannot be based on facts which were not in the contemplation of the parties.” ANALYSIS OF THE LAW AND THE FACTS 28. It is pertinent that the court restate the nature of an alternative relief first. Pleading an alternative relief means that a litigant requests a different outcome from the court in the event their primary relief is not granted. An alternative relief is, therefore, claimed in addition to a primary relief to provide a fallback option for the plaintiff if the primary relief is not granted. The alternative relief usually involves a different remedy, such as damages, in case specific performance is not feasible or appropriate. The court will consider the alternative relief if the primary one is not granted, ensuring that the plaintiff has a chance to obtain some relief. It is competent for the court to grant the main/primary relief sought only or to grant both the main relief of, for example, specific performance, together with the alternative relief of damages. The court has a discretion in deciding whether to grant the alternative relief, even if the primary relief is not granted. The legal position was restated in ZESA Holdings (Pvt) Ltd v Clovegate Elevator Company (Pvt) Ltd & Anor SC 69/23 at p 17, where KUDYA JA had this to say: “Firstly, while the respondent sought specific performance of the contract from the appellant and the alternative relief of damages, the arbitrator only granted the main relief sought. It was competent of him to do so. According to Visser et al in Gibson’s South African Mercantile and Company Law, 8th ed (Juta) at p 88, it would have been competent, however, for the arbitrator to award both the main relief of specific performance together with the alternative relief of damages. The learned authors state that: “A party to a contract who is in breach may be compelled to perform the obligation in the manner required by the terms of the contract. The necessary court order may be enforced by contempt of court proceedings if specific performance has been decreed absolutely. But very often the court orders specific performance with an alternative in damages, if this relief is claimed. (The magistrates’ court has no jurisdiction to order specific performance unless it is coupled with an alternative order for damages, except in respect of the rendering of an account or the delivery of property (s 46 of the Magistrates Courts Act 32 of 1944))” 29. It is, therefore, settled that pleading an alternative relief is a common legal strategy to ensure that the court has options to consider, and it is often used when the outcome of a case is uncertain. While I agree with Mr Nyangani that the defendant has an option to elect to consent to judgment to the whole or part of the plaintiff’s claims, it does not follow that if he consents to part of the claim or part of the alternative relief, the whole matter or dispute is disposed of. The plaintiff remains with the final election to either accept the terms of the consent to judgment of part of the claim, or still proceed with the other part. His election to apply for judgment in terms of the consent, in my view, signifies his agreement or consent to the terms of the agreement embodied in the consent to judgment. By claiming in the alternative, the plaintiff would be seeking to have a fallback option that, if the main relief is inappropriate or cannot be legally sustainable, the court can grant him the alternative remedy. The primary remedy remains the main claim that the plaintiff would be pursuing. It cannot, therefore, be argued that when the defendant accepts the alternative claim, the matter is disposed of. The option remains available for the plaintiff to pursue the primary relief he or she seeks unless he accepts the settlement of part of the claim in this case or the alternative relief. A party cannot be compelled to contract. As stated in the ZESA Holding case, supra, it would be competent for the court to grant the main relief only or to grant both the primary and the alternative relief. 30. It is not in doubt that in terms of rule 21(1), the defendant may consent to judgment to the whole or part of the claim. On the other hand, the plaintiff “may” make a chamber application for judgment to be entered in accordance with that consent. The word “may” is generally used to confer discretionary power or authority upon the concerned party. It implies choice. The plaintiff is given a discretion to decide whether or not to apply for a judgment by consent depending on the circumstances and her own judgment. The correct interpretation of the word “may” was further clearly explained in Air Duct Fabricators (Pvt) Ltd v A. M. Machado & Sons (Pvt) Ltd HH 54/16, where the court stated as follows: “Our own superior courts have given us sufficient guidance. In the case of Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa [SC 9/10 at pp 7-8], it was held that:- “…the general rule is that, when the legislature uses the word “may” in a statute by which it confers power on a public official to do a thing, the intention is to confer the power only without a duty to exercise it. The statute must be construed as conferring on the repository of the power a discretion to decide whether or not to do the thing, unless there is something in the subject-matter to which the statute relates which shows that the word “may”, is used in an imperative sense to impose a duty on the public official to exercise the power. The something referred to in the general rule may be in the nature of the thing the public official is empowered to do, in the object for which the thing is to be done, in the condition under which it is to be done, in the title of the persons for whose benefit the power is to be exercised. That something may couple the power to a duty and make it an obligation on the person in whom the power is reposed to exercise it when called upon to do so. If upon consideration of the subject-matter to which the statute relates, the only reasonable conclusion that can be reached is that the intention of the legislature is that the repository of the power would have no justification for failing to exercise the power, the word ‘may” must, in such a case, be held to mean “shall”. (My underlining for emphasis) See Craies on Statute Law 7 ed p 284; Annison & Ors v District Auditor for St Pancras Borough Council & Anor (1962) 1 QB 489 at 497; Salisbury Financial Holdings (Pvt) Ltd v Van Niekerk 1974 (1) RLR 333(G) at 335D-E. It is accepted that the court in Diocesan Trustees made these remarks in connection with the wording of a statute, but it is my view that the meaning attributed to the words ‘may’ and ‘shall’, applies to those words in any context, ‘may’ implies permissiveness, as in a discretion or a choice, while ‘shall’ is an imperative, a duty or obligation to take the prescribed course of action. See also Jonathan Nathaniel Moyo & 2 Ors v Austin Zvoma N.O. & Anor [SC 28/10 at p 7], where the court made a similar distinction in the meaning of the words ‘may’ and ‘shall’, also in relation to statutory interpretation. It was held that;- “The learned author Francis Bennion in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp 21-22: 'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty. This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing "shall" be done. Too often, they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet the courts are forced to reach a decision.’ It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So the courts’ answer has been to devise a distinction between mandatory and directory duties. Terms used instead of "mandatory" include "absolute", "obligatory", "imperative" and "strict". In place of "directory", the term "permissive" is sometimes used. Use of the term "directory" in the sense of permissive has been justly criticised.” [See Craies Statute Law (7th ed, 1971) p 61 n 74.] The guidance that emanates from these cases is that when ‘may’ is used, it is merely directory and choosing not to act in the manner prescribed is permissible.” 31. In the context of rule 21(1), which relates to a judgment by consent, in my view, the word “may” is merely directory and it is permissible not to act in the manner prescribed. The plaintiff, therefore, has a choice to either signify her agreement to be bound by the terms of the consent by making the application for judgment in accordance with the consent to judgment filed by the defendant, or not to do so. This arises from the fact that a consent order signifies a contract between the parties. Thus, Ramly J of the Malaysian Court of Appeal in the case of Mayhan Allied BHD v Kenneth Godfrey Gomez & Anor [2010] 9 CLJ 702 aptly stated; “The Consent Order is founded on a contract or agreement between parties based on both parties' willingness to submit ... to certain terms. Once the Appellant and the Respondent took a matter beyond the contract and recorded a Consent Order then they must accept all the implications of a Judgement or Order.” In the same case, the Court finally held that; “Essentially, although a Consent Order arises out of an agreement and terms arrived at by the parties themselves, and may even evidence a contract with or without obligation, it is a Judgement or Order made by or in the name of the Court and has all the consequences of a Court Judgement or Order (See Order 42/ SA/ 4 RSC White Book 1999 Edition). The parties must therefore accept its implications.” 32. The defendant’s consent to judgment consists of the terms upon which he agrees to settle the matter either in part or in whole. Those terms of the defendant’s own consent to judgment cannot be forced on the plaintiff. The defendant may elect to accept part of the claim. It does not follow, therefore, that once he accepts that part, the matter is disposed of or finalised. It is up to the plaintiff, in my view, to accept the terms of the consent to judgment, especially if the terms do not constitute an acceptance of the plaintiff’s whole claim, as in this case, the main relief and the alternative relief itself in full. 33. In casu, the consent to judgment filed by the third defendant on 23 August 2023 reads: “TAKE NOTICE THAT the 3rd defendant hereby consents to the plaintiff’s alternative claim in the sum of ZWL25,000,000.00 (twenty million Zimbabwean dollars) and hereby tenders payment of same together with costs on the ordinary scale.” The said consent was meant to accept the plaintiff’s alternative relief couched as follows: “f) an order that 3rd, 4th and 5th Defendants variously, be and are hereby ordered to pay damages to the Plaintiff amounting to $25 000 000,00 together with prescribed interest from the date of summons to the date of full payment.” The consent could not be said to be accepting the plaintiff’s whole alternative relief. It was accepting a part of the alternative relief without interest. It did not bind the plaintiff to accept it. As alluded to above, the plaintiff is permitted in the circumstances to consider the terms of the consent and seeks an order in accordance with the consent to judgment. The plaintiff still has a choice to accept the terms, as in this case of a settlement of a part of the claim, as creating a contract and having the court endorse the contract through the consent order. The rules cannot be interpreted to mean that the defendant’s consent to part of the plaintiff’s claim means that the plaintiff is obliged to accept such a settlement of part of his claim as constituting the disposal of the matter. That would vitiate the whole essence of the procedure for a consent to judgment. It would also undermine the very nature of a judgment by consent, which is founded on a contract. There must exist a true or real agreement between the parties for judgment by consent to be granted or any consent to judgment to be given effect as a true contract or agreement between the parties. 34. In other words, there must be consensus ad idem existing between the parties for a valid and binding agreement or contract to exist, which the court may record through the consent order. Once recorded, the consent order will have the force of law as a final judgment binding on the parties. The consent order arises out of a contract and is also a contract between the parties, except that it is a contract superadded with the command of the court. The terms of the agreement between the parties are now said to be embodied and crystallised in the said order. 35. It is common cause that the parties met at a PTC on 30 March 2023, and the plaintiff expressed an intention to amend the Zimbabwean dollar value of the stand in the alternative relief, which had been rendered moribund by the economic changes or changes in currency. It is even recorded in the joint PTC minute filed later on 19 January 2024 under para 3 titled “ADMISSIONS SOUGHT” that “[t]he plaintiff will amend her summons”. The same position was further expressed in the letter dated 4 August 2023, written by the plaintiff’s legal practitioners, which was not disputed or whose contents were not challenged. See p 54 of the record. In the said letter, they expressed disappointment with the conduct of the third defendant’s legal practitioners in seeking to consent to the alternative relief and tendering payment of the amount, given the circumstances and that they had expressed their intention to amend their pleadings. The third defendant was fully aware that the plaintiff intended to amend her summons in respect of that alternative relief. While Mr Nyangani argued that the plaintiff failed to act vigilantly, I do not accept that there could be any true agreement arising from the defendant’s consent to part of the alternative claim in a currency whose value it was common cause had been affected by currency changes. Mr Nyangani accepted that this is a 2020 case and that it was the changes in currency which happened in 2021 that prompted the plaintiff to amend the claim. He could not, therefore, insist that accepting part of the alternative claim in Zimbabwean dollars, which had no real economic value, would create the basis for any real or true agreement or consensus ad idem or contract. The consent to that part of the alternative claim was not accepted by the plaintiff through a chamber application in terms of rule 21(1) and could not, therefore, dispose of the plaintiff’s claim or terminate the cause of action before the court. In any case, as stated above, what disposes of the matter or terminates the cause of action is the court order by consent, not merely the filing of a consent to judgment. See Technoimpex JSC v Rajendrakumar Jog & Ors. 36. While in the First Class Enterprises case, the court was specifically dealing with an application for rescission of a judgment by consent which had been entered by the court mero motu, it raised very pertinent legal points applicable to this case. Gowora J (as she then was) highlighted case law which resonates with this dispute. The court said: “Although there are no cases in point on this issue counsel for the plaintiff has referred me to two case authorities, viz; Lambert v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) S.A. 178. In the former case, MEGAW LJ observed [at 833C-G]: “…I would, however, say this also: that it is a jurisdiction which ought to be exercised with very great care, and it may well be that the cases in which it falls to be exercised should only be rare. It is desirable that litigation, once apparently finished, including litigation finished by means of payment into court which is either of the full amount claimed or an amount accepted deliberately by a plaintiff, ought not lightly to be allowed to be re-opened. But that there are such cases where the court has such jurisdiction is, I should have thought, apparent from the examples that were discussed during the argument before us. If, for example, the claim put forward in the county court by a plaintiff was one which contained a simple mistake as to the amount (as for example Lawton LJ suggested in the course of argument by the omission of a ‘0’ in the amount of the claim making it 150 pounds instead of 1 500 pounds) it would be absurd indeed if it were suggested that the defendant, having received the particulars of the claim, should be in a position to then promptly pay 150 pounds into court and then to say “The result under the rule, is that this action is stayed and cannot be re-opened”. Another example, which I put forward during argument is: supposing a plaintiff discovers, when it is nearly time for trial, that the damage he has suffered is substantially increased by reason of some event over and above what he has included in his particulars of claim. As a matter of courtesy, he, or his solicitors, notify the opposing side that he will amend particulars accordingly. Is it possible that the law is that in those circumstances a defendant receiving information could promptly make a payment in of the sum at that moment included in the particulars of claim and then say; ‘Well that is the end of it. This action is stayed. You, the plaintiff, may not amend your pleadings because the action is stayed and the court has no right to remove the stay’? It cannot be so. There must be, as was said by Green MR, cases in which the court has the power to set aside a stay.” This dicta was quoted with approval by O’donovan J in Molete v Union Nat South Brit Ins Co (supra). The judge went on to state thus [at183E-F]: “I do not consider that an examination of the policy considerations underlying R 18 (1) is of assistance to the respondent in relation to the Supreme Court Rules. There are, in my view, clear indications in R 34 that the unilateral act of a defendant in making a payment into Court cannot have the effect of terminating the proceedings. Acceptance by the plaintiff of the money paid is essential before the original cause of action can be said to have come to an end.” [my emphasis] The reasoning above would apply in this case with equal force. The defendant’s unilateral act of consenting to part of the alternative relief and tendering payment thereof cannot have the effect of terminating the proceedings. Acceptance of such by the plaintiff by seeking a judgment by consent is what would terminate the cause of action. This view is in sync with the Supreme Court authority of Technoimpex JSC v Rajendrakumar Jog & Ors, that it would only be the consent order which terminates the cause of action between the parties. The consent to judgment in casu did not resolve this matter or dispose of the matter as between the plaintiff and the third defendant as alleged. 37. The plaintiff’s main claim remains pending for determination at the trial. The record is also clear that the plaintiff did not exercise the discretion to file a chamber application for judgment in accordance with the consent filed by the defendant. She did not, therefore, do what she was required to do if she had intended to establish an agreement or contract leading to a resultant consent order which would effectively dispose of the matter or the entire cause of action. There was nothing, therefore, which prevented the plaintiff from amending her pleadings. She duly gave notice to amend her summons and declaration on 2 October 2023. In the amendment, the plaintiff effectively abandoned the alternative reliefs before the court. There was no objection to the proposed amendment and, therefore, by operation of the law, in terms of rule 41(5), the amendments have been deemed to have been consented to. This means that the alternative reliefs sought in the summons are no longer before the court. What the court will now have to determine is the plaintiff’s entitlement to the primary remedy sought. The matter is accordingly still properly before the court for trial. 38. There was reliance on the Simbi case by the third defendant. That decision does not assist its case at all. There was no substantive decision or determination made by the court to buttress the argument advanced by Mr Nyangani. The judgment merely relates to a PTC where no substantive decision could be made. Tagu J (as he then was) simply referred the issues to trial for determination. There was no judgment allegedly made before Chinamora J (as he then was), which was placed before me. In any event, I am not satisfied that the consent to judgment filed for part of the plaintiff’s alternative claim would be said to have terminated the proceedings or the cause of action between the plaintiff and the third defendant. 39. While the consent to judgment cannot per se be said to be irregular, it has no legal effect in this case as it was not given effect to create a contract or agreement through a chamber application for a consent order by the plaintiff. In fact, the plaintiff has since amended her summons and declaration unopposed by abandoning the alternative claims, thus rendering the said consent to judgment irrelevant to the determination of the issues before the court. It must simply be ignored as it has no legal effect in terminating the cause of action or the matter before me. The case of Founders Building Society is irrelevant. 40. For the above reasons, the objection is devoid of any legal merit and ought to be dismissed. DISPOSITION 41. The dispute between the plaintiff and the third defendant remains live. The main relief, which is now the only remedy the plaintiff is seeking following the amendment of her pleadings, remains subject to determination. The plaintiff’s claim was never settled. The consent to judgment did not dispose of the matter or terminate the cause of action between the parties. The objection, in my view, was legally unfounded. Further, it is trite at law that an action comes to an end when it is dismissed or where judgment is given in favour of the plaintiff, so far as deciding the rights of parties is concerned. The action is not at an end so far as regards the enforcement of the judgment. See Electricity Supply Nominees Limited v Farrell & Ors [1997] 2 All ER 498. 42. In the premises, the dispute must be resolved on trial. Trial shall accordingly proceed. As regards costs, since there was no prayer for costs by the plaintiff and given that the matter was not disposed of on the preliminary objection and that a trial would still be required to dispose of the matter, I believe an appropriate order of costs should be that costs shall remain in the cause. 43. Consequently, it is ordered that: 1. The objection raised by the third defendant that the matter as between the plaintiff and the third defendant has been disposed of be and is hereby dismissed. 2. Costs shall be in the cause. 3. The Registrar be and is hereby directed to set the matter down for the commencement of the trial. DEMBURE J: ……………………………………………… Absolom & Shepherd, plaintiff’s legal practitioners Mutuso, Taruvinga and Mhiribidi, 1st & 2nd defendants’ legal practitioners Nyangani Law Chambers, 3rd defendant’s legal practitioners 7 HH 434 - 25 HC 3669/20 7 HH 434 - 25 HC 3669/20 NETSAI KALENGA versus ZHOU XIN and CHE MENG XU and AROSUME PROPERTY DEVELOPMENT (PRIVATE) LIMITED and SALLY MUGABE HEIGHT HOUSING COOPERATIVE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE DEMBURE J HARARE: 16 June & 21 July 2025. Civil trial: Preliminary objection S Dizwani with L. Manyika, for the plaintiff S M Bwanya, for the 1st & 2nd defendants F Nyangani, for the 3rd defendant No appearances for the 4th – 6th defendants DEMBURE J: INTRODUCTION 1. The record of this action was placed before me for trial. On 16 June 2025, before the trial could commence, the third defendant raised a preliminary objection that there is no issue for trial as between the plaintiff and the third defendant. The ground of that objection was that the third defendant filed a consent to judgment, and it was argued that that disposed of the matter. 2. The objection was strenuously opposed by the plaintiff. After hearing submissions from the legal counsels for the plaintiff and the third respondents, the court reserved judgment sine die on the preliminary objection. This is the judgment on the said preliminary point. FACTUAL BACKGROUND 3. The dispute concerns a certain piece of land situate in the District of Salisbury called stand 314 Carrick Creagh Township of Carrick Creagh of Section 4 of Borrowdale Estate (“the property or stand”). The stand is a residential property. The property is currently registered in the names of the first and second defendants with the Deeds registry under Deed of Transfer number 1469/2012. The two defendants obtained transfer of ownership from the third defendant, and the transfer was registered on 29 March 2012. 4. On 15 July 2020, the plaintiff had a summons issued against the defendants. The plaintiff’s claim is for: “a) an order for the cancellation of the title Deed No. 1469/2012 issued in favour of the 1st and 2nd defendants in respect of a certain piece of property known as stand 314 Carrick Creagh Township of Carrick Creagh of Section 4 of Borrowdale Estate. b) an order declaring the plaintiff to be the lawful holder of rights, title and interests relating to the above property. c) an order directing the 5th Defendant to facilitate registration of title in Plaintiff’s favour vis-à-vis the property described in (a) above. d) an order compelling the 6th Defendant to register the Plaintiff as the title holder to the above property subject to 5th Defendant’s input contemplated in (c) above. ALTERNATIVELY e) an order that 3rd, 4th and 5th Defendants variously, be and are hereby ordered to pay damages to the Plaintiff amounting to $25 000 000,00 together with prescribed interest from the date of summons to the date of full payment. ALTERNATIVELY, f) that 3rd, 4th and 5th Defendants be and are hereby ordered to compensate the Plaintiff of the contributions she made towards the project in the sum of $20 000 000,00. g) an order that the Defendants’ liability shall be joint and several, one paying the other to be absolved. h) an order that the Defendants shall bear the costs of suit at the rate of legal practitioner/client.” 5. It was pleaded that from 2004 up to the time of the issue of the summons, the plaintiff had been a member of the fourth defendant cooperative, which she joined to acquire the stand in question. Sometime in 2007, the fourth defendant entered into a tripartite agreement with the third and fifth defendants in terms of which the fifth defendant would provide land for allocation to nominated members of the fourth defendant. The third defendant would also render infrastructure services on the land at a cost to be borne by the fourth defendant’s members and facilitate the issuance of leases by the fifth defendant in respect of those members who were paid up. The third defendant would also get some stands as security against the default by members of their obligations to pay for the development costs. 6. The plaintiff’s case was that in 2007, she was identified by the fourth defendant and registered with the third defendant for benefit relating to the stand in question. She also alleged that she assumed immediate occupation and paid the third defendant the development costs pending the issuance of a lease agreement by the fifth defendant. She further alleged that she became aware in 2020 that the third defendant had fraudulently obtained title of the stand and transferred the property to the first and second defendants. 7. The first and second defendants entered an appearance to defend, duly represented by Mutuso, Taruvinga & Mhiribidi. As of the date of the hearing, Mr Bwanya represented them. I must state, however, that I did not see these two defendants’ pleas in the record before me. On the date of the hearing, Mr Bwanya undertook to upload the copy thereof, but up to the date of this judgment, nothing has been uploaded. Since the objection could still be determined without considering that pleading, I will proceed to issue my decision. 8. As for the third defendant, it duly filed its plea on 17 December 2020. The third defendant contended that the plaintiff was never registered with it for benefit in relation to the stand in question. It denied that the plaintiff complied with any payment obligations imposed by the third defendant. It was further pleaded that the plaintiff was never issued a lease because she never complied with or adhered to her obligations to pay the requisite fees due for the project. The stand, it was also alleged, was given to it in terms of the tripartite agreement and was only sold and transferred to the first and second defendants openly in 2012. It denied that there were any shenanigans as alleged. 9. The further averments were that the first and second defendants were bona fide purchasers of the property. The third defendant also denied that the property was worth $25,000,000.00. It was further averred that the plaintiff never contributed $20,000,000.00 in development charges. The fifth defendant also opposed the claim, and in his plea, he denied that he allocated the stand to the plaintiff. The fifth defendant further pleaded that the claim had nothing to do with him, as it was the third defendant who would recommend the plaintiff for processing of a lease agreement. 10. The parties filed all their pleadings, and after the close of pleadings, held a pre-trial conference on 30 March 2023. On 3 August 2023, the third defendant filed a consent to judgment to the plaintiff’s alternative relief sought for payment of ZLW25,000,000.00. The plaintiff subsequently filed a notice to amend her summons and declaration by the deletion of all the alternative reliefs. There was no objection to the proposed amendments. 11. The matter was set down for a pre-trial conference (“PTC”) before Katiyo J. Only the first and second defendants and the plaintiff, duly represented by their legal practitioners, attended the pre-trial conference. On 8 October 2024, the matter was referred to trial on the following issues: “i. Whether or not title relating to stand 314 Carrick Creagh of section 4 of Borrowdale Estate is cancellable? If so, ii. Whether or not the Plaintiff is entitled to ownership of the same and the conditions thereof. Alternatively, iii. Whether or not the plaintiff is anyhow entitled to compensation from any of the defendants and if so, the quantum thereof. iv. Whether or not plaintiff was a member of the 3rd defendant. v. What scale of costs to be awarded to the successful party.” 12. Before the commencement of the trial, the third defendant raised a preliminary objection, which it was argued is a legal point that goes to the root of the matter. SUBMISSIONS MADE BY THE PARTIES THIRD DEFENDANT’S SUBMISSIONS 13. Mr Nyangani submitted that the preliminary point raised by the third defendant is that there is no issue for trial as between the third defendant and the plaintiff. He stated that the reason was that, in terms of the law and procedure, the case between the plaintiff and the third defendant has been settled by virtue of a consent to judgment which appears on p 55 of the record. The claim before the court in the summons is couched in a manner where the plaintiff has given the defendant options to accept the main claim or the alternative claims. The defendant has an election to make. The summons is at pp 2-3 of the record. 14. Counsel went on to submit that in terms of paras (a), (b) and (c), the plaintiff is seeking an order cancelling the title deed. In para (d), the plaintiff is seeking the registration of the plaintiff as the title holder and alternatively seeks payment of $25,000,000.00 alternatively, payment of $20,000,000.00. These are alternative claims to the main claim. To buttress that the plaintiff in para (g) seeks joint liability of the defendants. He argued that it is trite that where the plaintiff couches its claim in this manner, whereby it gives the defendant alternatives, it goes without saying that the defendant may elect to settle one of those alternative claims. Put differently, what the plaintiff did was simply to say give me (a) or (b) because you cannot have both. Rule 21(1) of the High Court Rules, 2021, is very clear. The entering of a consent to judgment is a unilateral act of the defendant. It is an avenue open to the defendant to consent to judgment at anytime after the service of the summons. 15. Mr Nyangani further submitted that the consent to judgment disposes of the matter. He argued that the plaintiff said the defendant was not supposed to have consented to the judgment because the defendant knew we intended to amend the summons, and that this consent to judgment is irregular. There is nothing irregular procedurally in the consent to judgment filed in August 2023. The parties had a round table conference in March 2023. See p 63. The consent was filed in August, some months after the parties had met. The plaintiff did not do anything after that. The consent to judgment entitles the plaintiff to make an application for judgment. No judgment was entered by consent. The consent is valid. Our law is clear that parties must act vigilantly; the principle “vigilantibus non dormientibus jura subveniunt” (the law helps the vigilant, not the sluggard). Their sluggish approach means that they have not defended their rights. 16. Counsel also argued that the consent is there on record. It is not irregular. If the plaintiff thought that the consent was irregular, the correct procedure is to apply to strike out that irregular pleading. See Founders Building Society v Dalib (Pvt) Ltd 1998 (1) ZLR 256 per Gillespie J. He further referred the court to the case of Simbi v Arosume Property Development (Pvt) Ltd & Ors HH 193/20. He argued that in that judgment before Tagu J (as he then was), the plaintiff sought to resist a consent to judgment which was entered in respect of its alternative claim arguing that it was not up to the defendant to opt to pay damages where the plaintiff had sought the main claim for specific performance. I pause to state that this court queried whether, in that decision, the question as before this court was determined. Mr Nyangani replied that the matter was finally determined by Chinamora J, who accepted their argument. When questioned about the rationality of accepting an amount that the defendant knew economically was worthless, counsel insisted that the defendant had options because the claim was in the main with alternative claims. The defendant made its election to accept the alternative claim. 17. Mr Nyangani also argued that the case has been improperly set down for trial. He further stated that this is why the third defendant did not file any further papers. The purported attempt to amend the summons is a legal nullity because one cannot amend a summons which had already been consented to. Counsel accordingly prayed that it be ordered that the case against the third defendant is no longer before the court and has been settled. PLAINTIFF’S SUBMISSIONS 18. Ms Dizwani argued that the issue before the court is whether there is a consent that would stop the trial. The question is whether the consent to judgment before the court is enough to stop the proceedings or dispose of the matter. It was submitted that it does not. She referred the court to rule 21(1) and (2). In terms of subrule (1), where a party consents to judgment, the plaintiff has an election or option to make a chamber application for judgment and judgment may be given in terms of that consent. The fact that the plaintiff has the discretion to make a chamber application means that the plaintiff must have consented to that consent to judgment. The key word is “may”, which means that the plaintiff may choose to or not to accept the consent. It is discretionary. 19. Counsel went on to submit that the case of Simbi v Arosume Property Development & Ors is not binding because Tagu J did not make a substantive adjudication on whether or not the consent to judgment was proper. The court cannot rely on the notion that Chinamora J consented. There is nothing before the court that shows that the consent to judgment was accepted. This matter is distinct from the case of Simbi. Counsel referred the court to the case of First Class Enterprises Ltd v Scanlink (Pvt) Ltd HH 187/10. In that matter, at the pre-trial conference, the defendant offered to settle the matter by paying the money in the summons, and the plaintiff undertook to file an amendment. The matter was then set down for trial before the plaintiff had amended its summons. The defendant took a chance and filed a consent to judgment before the amendment. The trial judge entered judgment mero motu. The sentiments of Gowora J therein are instructive. The judgment was set aside. The court relied on the English case of Lambet v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) S.A. 178. Counsel further quoted the sentiments expressed by the court. What the opposing counsel was saying is the same as stated by counsel in this case. 20. Ms Dizwani further submitted that it is not true that the defendants were not aware of the intention to amend. At p 53 of the record, there is a letter authored by the plaintiff’s legal practitioners in which they registered their disappointment at the conduct of the third defendant’s legal practitioners. See para 4 thereof. The letter was not replied to. The third defendant knew very well that the plaintiff intended to amend its summons. Since the third defendant knew that conduct had been shunned, that is a reason to have it set aside. In the Molete case, the court noted that the unilateral act of paying into court is not the termination of the proceedings, and that acceptance is essential. That acceptance is not available. 21. It was also submitted that the defendant argued that because the plaintiff did not strike out the consent to judgment, the consent is valid, but an application can be made at any stage. The amendment seeks to address the alternative claim. Ms Dizwani also argued that there is a primary relief which the plaintiff is seeking. The plaintiff believes that the alternative claim is only resorted to as a fallback relief if the court does not give the primary relief. It is simple practice where a party claim an amount of money or, in the alternative, claims for unjust enrichment, the court first deals with the main relief before deciding the alternative claim. There is a notice of amendment which was not objected to. The consent was not properly done. It was irregular in that it was incomplete because it only catered for the amount and not the interest, as claimed by the plaintiff. It does not make any reference to the $20,000,000.00 compensation which was claimed by the plaintiff. 22. Ms Dizwani also argued that the consent is irregular because no effect was given to that consent by way of a chamber application. In terms of rule 21(1), to have effect, the plaintiff must accept it. She did not. The plaintiff did not make a chamber application to accept it. The consent to judgment does not dispose of the main claim. The plaintiff still has the right in the main claim, which is the primary remedy she is seeking. In terms of subrule 2 of rule 21, the court may set aside such consent where good and sufficient cause is shown. Subrule (2) assists the plaintiff’s cause that there is no judgment before the court. It was finally submitted that the plaintiff will seek leave to strike out the consent to judgment after the court has made its determination on the point. THIRD DEFENDANT’S REPLYING SUBMISSIONS 23. Mr Nyangani, in reply, submitted that counsel for the plaintiff conceded that there is need for the plaintiff to make an application to strike out the consent to judgment if they believe it is irregular. He argued that the conclusion from her submissions buttresses that. It has not been said that the consent fell foul of rule 21. There was a submission that the consent is irregular because it did not specify the interest. A consent can be for part of the claim. The case can proceed on the issue of interest. He further argued that the First Class case was dealing with an application for rescission of a consent judgment. It is distinguishable from the present case. Unlike in that case, the plaintiff had more than five months from the date of the round table conference to amend its pleadings. 24. He also submitted that this is a 2020 case, and changes in currency, which prompted them to amend, happened in 2021. They sat on their laurels. There is a proper consent filed of record. It is the plaintiff who should apply to strike it out. The argument that rule 21(1) allows them to accept the consent is untenable. The rule allows the defendant to unilaterally consent to judgment. It does not require the plaintiff’s consent to that consent to judgment. The plaintiff’s argument would render the rules nonsensical. For the court to say the consent to judgment is invalid if the plaintiff did not follow through with the procedure in rule 21(1) would be to render the whole rule meaningless. The court should not accept such an argument. ISSUE FOR DETERMINATION 25. The question to be determined by the court is whether or not the matter had been disposed of or settled following the filing of the third defendant’s consent to judgment. THE LAW 26. The law permits a defendant in any action except where the relief sought is one which affect status to consent in whole or in part to judgment for the plaintiff’s claim. The plaintiff may make a chamber application for judgment to be entered in terms of that consent. The relevant provisions of the rule 21 read: “Judgment by consent 21.(1) Save in actions for relief affecting status, at any time after service of summons a defendant may consent, in whole or in part to judgment without appearing in court and such consent to judgment shall be in writing and signed by the defendant personally or by a legal practitioner who has entered appearance to defend on his or her behalf and where the defendant has personally signed a consent to judgment, his or her signature shall either be witnessed by a legal practitioner acting for such defendant and not for the plaintiff or be verified by affidavit and upon filing a consent to judgment with the registrar the plaintiff may make a chamber application for judgment and thereafter a judge may give judgment according to the consent. (2) A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute the action and such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court considers just.” (my emphasis) 27. It is trite that it is only an order by consent that extinguishes the cause of action. The order is also granted by the court at the instance of the parties. See Technoimpex JSC v (1) Rajendrakumar Jog & Ors SC 29/22 at p 11, where Uchena JA said: “In Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S) at p 496, this Court stated that an order by consent “extinguishes any cause of action that existed.” At p 10, the court also remarked that: “A consent to a court order is a decision consciously made by a party fully appreciating the facts and the law applicable to the dispute between the parties. Consent to a court order cannot be based on facts which were not in the contemplation of the parties.” ANALYSIS OF THE LAW AND THE FACTS 28. It is pertinent that the court restate the nature of an alternative relief first. Pleading an alternative relief means that a litigant requests a different outcome from the court in the event their primary relief is not granted. An alternative relief is, therefore, claimed in addition to a primary relief to provide a fallback option for the plaintiff if the primary relief is not granted. The alternative relief usually involves a different remedy, such as damages, in case specific performance is not feasible or appropriate. The court will consider the alternative relief if the primary one is not granted, ensuring that the plaintiff has a chance to obtain some relief. It is competent for the court to grant the main/primary relief sought only or to grant both the main relief of, for example, specific performance, together with the alternative relief of damages. The court has a discretion in deciding whether to grant the alternative relief, even if the primary relief is not granted. The legal position was restated in ZESA Holdings (Pvt) Ltd v Clovegate Elevator Company (Pvt) Ltd & Anor SC 69/23 at p 17, where KUDYA JA had this to say: “Firstly, while the respondent sought specific performance of the contract from the appellant and the alternative relief of damages, the arbitrator only granted the main relief sought. It was competent of him to do so. According to Visser et al in Gibson’s South African Mercantile and Company Law, 8th ed (Juta) at p 88, it would have been competent, however, for the arbitrator to award both the main relief of specific performance together with the alternative relief of damages. The learned authors state that: “A party to a contract who is in breach may be compelled to perform the obligation in the manner required by the terms of the contract. The necessary court order may be enforced by contempt of court proceedings if specific performance has been decreed absolutely. But very often the court orders specific performance with an alternative in damages, if this relief is claimed. (The magistrates’ court has no jurisdiction to order specific performance unless it is coupled with an alternative order for damages, except in respect of the rendering of an account or the delivery of property (s 46 of the Magistrates Courts Act 32 of 1944))” 29. It is, therefore, settled that pleading an alternative relief is a common legal strategy to ensure that the court has options to consider, and it is often used when the outcome of a case is uncertain. While I agree with Mr Nyangani that the defendant has an option to elect to consent to judgment to the whole or part of the plaintiff’s claims, it does not follow that if he consents to part of the claim or part of the alternative relief, the whole matter or dispute is disposed of. The plaintiff remains with the final election to either accept the terms of the consent to judgment of part of the claim, or still proceed with the other part. His election to apply for judgment in terms of the consent, in my view, signifies his agreement or consent to the terms of the agreement embodied in the consent to judgment. By claiming in the alternative, the plaintiff would be seeking to have a fallback option that, if the main relief is inappropriate or cannot be legally sustainable, the court can grant him the alternative remedy. The primary remedy remains the main claim that the plaintiff would be pursuing. It cannot, therefore, be argued that when the defendant accepts the alternative claim, the matter is disposed of. The option remains available for the plaintiff to pursue the primary relief he or she seeks unless he accepts the settlement of part of the claim in this case or the alternative relief. A party cannot be compelled to contract. As stated in the ZESA Holding case, supra, it would be competent for the court to grant the main relief only or to grant both the primary and the alternative relief. 30. It is not in doubt that in terms of rule 21(1), the defendant may consent to judgment to the whole or part of the claim. On the other hand, the plaintiff “may” make a chamber application for judgment to be entered in accordance with that consent. The word “may” is generally used to confer discretionary power or authority upon the concerned party. It implies choice. The plaintiff is given a discretion to decide whether or not to apply for a judgment by consent depending on the circumstances and her own judgment. The correct interpretation of the word “may” was further clearly explained in Air Duct Fabricators (Pvt) Ltd v A. M. Machado & Sons (Pvt) Ltd HH 54/16, where the court stated as follows: “Our own superior courts have given us sufficient guidance. In the case of Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa [SC 9/10 at pp 7-8], it was held that:- “…the general rule is that, when the legislature uses the word “may” in a statute by which it confers power on a public official to do a thing, the intention is to confer the power only without a duty to exercise it. The statute must be construed as conferring on the repository of the power a discretion to decide whether or not to do the thing, unless there is something in the subject-matter to which the statute relates which shows that the word “may”, is used in an imperative sense to impose a duty on the public official to exercise the power. The something referred to in the general rule may be in the nature of the thing the public official is empowered to do, in the object for which the thing is to be done, in the condition under which it is to be done, in the title of the persons for whose benefit the power is to be exercised. That something may couple the power to a duty and make it an obligation on the person in whom the power is reposed to exercise it when called upon to do so. If upon consideration of the subject-matter to which the statute relates, the only reasonable conclusion that can be reached is that the intention of the legislature is that the repository of the power would have no justification for failing to exercise the power, the word ‘may” must, in such a case, be held to mean “shall”. (My underlining for emphasis) See Craies on Statute Law 7 ed p 284; Annison & Ors v District Auditor for St Pancras Borough Council & Anor (1962) 1 QB 489 at 497; Salisbury Financial Holdings (Pvt) Ltd v Van Niekerk 1974 (1) RLR 333(G) at 335D-E. It is accepted that the court in Diocesan Trustees made these remarks in connection with the wording of a statute, but it is my view that the meaning attributed to the words ‘may’ and ‘shall’, applies to those words in any context, ‘may’ implies permissiveness, as in a discretion or a choice, while ‘shall’ is an imperative, a duty or obligation to take the prescribed course of action. See also Jonathan Nathaniel Moyo & 2 Ors v Austin Zvoma N.O. & Anor [SC 28/10 at p 7], where the court made a similar distinction in the meaning of the words ‘may’ and ‘shall’, also in relation to statutory interpretation. It was held that;- “The learned author Francis Bennion in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp 21-22: 'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty. This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing "shall" be done. Too often, they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet the courts are forced to reach a decision.’ It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So the courts’ answer has been to devise a distinction between mandatory and directory duties. Terms used instead of "mandatory" include "absolute", "obligatory", "imperative" and "strict". In place of "directory", the term "permissive" is sometimes used. Use of the term "directory" in the sense of permissive has been justly criticised.” [See Craies Statute Law (7th ed, 1971) p 61 n 74.] The guidance that emanates from these cases is that when ‘may’ is used, it is merely directory and choosing not to act in the manner prescribed is permissible.” 31. In the context of rule 21(1), which relates to a judgment by consent, in my view, the word “may” is merely directory and it is permissible not to act in the manner prescribed. The plaintiff, therefore, has a choice to either signify her agreement to be bound by the terms of the consent by making the application for judgment in accordance with the consent to judgment filed by the defendant, or not to do so. This arises from the fact that a consent order signifies a contract between the parties. Thus, Ramly J of the Malaysian Court of Appeal in the case of Mayhan Allied BHD v Kenneth Godfrey Gomez & Anor [2010] 9 CLJ 702 aptly stated; “The Consent Order is founded on a contract or agreement between parties based on both parties' willingness to submit ... to certain terms. Once the Appellant and the Respondent took a matter beyond the contract and recorded a Consent Order then they must accept all the implications of a Judgement or Order.” In the same case, the Court finally held that; “Essentially, although a Consent Order arises out of an agreement and terms arrived at by the parties themselves, and may even evidence a contract with or without obligation, it is a Judgement or Order made by or in the name of the Court and has all the consequences of a Court Judgement or Order (See Order 42/ SA/ 4 RSC White Book 1999 Edition). The parties must therefore accept its implications.” 32. The defendant’s consent to judgment consists of the terms upon which he agrees to settle the matter either in part or in whole. Those terms of the defendant’s own consent to judgment cannot be forced on the plaintiff. The defendant may elect to accept part of the claim. It does not follow, therefore, that once he accepts that part, the matter is disposed of or finalised. It is up to the plaintiff, in my view, to accept the terms of the consent to judgment, especially if the terms do not constitute an acceptance of the plaintiff’s whole claim, as in this case, the main relief and the alternative relief itself in full. 33. In casu, the consent to judgment filed by the third defendant on 23 August 2023 reads: “TAKE NOTICE THAT the 3rd defendant hereby consents to the plaintiff’s alternative claim in the sum of ZWL25,000,000.00 (twenty million Zimbabwean dollars) and hereby tenders payment of same together with costs on the ordinary scale.” The said consent was meant to accept the plaintiff’s alternative relief couched as follows: “f) an order that 3rd, 4th and 5th Defendants variously, be and are hereby ordered to pay damages to the Plaintiff amounting to $25 000 000,00 together with prescribed interest from the date of summons to the date of full payment.” The consent could not be said to be accepting the plaintiff’s whole alternative relief. It was accepting a part of the alternative relief without interest. It did not bind the plaintiff to accept it. As alluded to above, the plaintiff is permitted in the circumstances to consider the terms of the consent and seeks an order in accordance with the consent to judgment. The plaintiff still has a choice to accept the terms, as in this case of a settlement of a part of the claim, as creating a contract and having the court endorse the contract through the consent order. The rules cannot be interpreted to mean that the defendant’s consent to part of the plaintiff’s claim means that the plaintiff is obliged to accept such a settlement of part of his claim as constituting the disposal of the matter. That would vitiate the whole essence of the procedure for a consent to judgment. It would also undermine the very nature of a judgment by consent, which is founded on a contract. There must exist a true or real agreement between the parties for judgment by consent to be granted or any consent to judgment to be given effect as a true contract or agreement between the parties. 34. In other words, there must be consensus ad idem existing between the parties for a valid and binding agreement or contract to exist, which the court may record through the consent order. Once recorded, the consent order will have the force of law as a final judgment binding on the parties. The consent order arises out of a contract and is also a contract between the parties, except that it is a contract superadded with the command of the court. The terms of the agreement between the parties are now said to be embodied and crystallised in the said order. 35. It is common cause that the parties met at a PTC on 30 March 2023, and the plaintiff expressed an intention to amend the Zimbabwean dollar value of the stand in the alternative relief, which had been rendered moribund by the economic changes or changes in currency. It is even recorded in the joint PTC minute filed later on 19 January 2024 under para 3 titled “ADMISSIONS SOUGHT” that “[t]he plaintiff will amend her summons”. The same position was further expressed in the letter dated 4 August 2023, written by the plaintiff’s legal practitioners, which was not disputed or whose contents were not challenged. See p 54 of the record. In the said letter, they expressed disappointment with the conduct of the third defendant’s legal practitioners in seeking to consent to the alternative relief and tendering payment of the amount, given the circumstances and that they had expressed their intention to amend their pleadings. The third defendant was fully aware that the plaintiff intended to amend her summons in respect of that alternative relief. While Mr Nyangani argued that the plaintiff failed to act vigilantly, I do not accept that there could be any true agreement arising from the defendant’s consent to part of the alternative claim in a currency whose value it was common cause had been affected by currency changes. Mr Nyangani accepted that this is a 2020 case and that it was the changes in currency which happened in 2021 that prompted the plaintiff to amend the claim. He could not, therefore, insist that accepting part of the alternative claim in Zimbabwean dollars, which had no real economic value, would create the basis for any real or true agreement or consensus ad idem or contract. The consent to that part of the alternative claim was not accepted by the plaintiff through a chamber application in terms of rule 21(1) and could not, therefore, dispose of the plaintiff’s claim or terminate the cause of action before the court. In any case, as stated above, what disposes of the matter or terminates the cause of action is the court order by consent, not merely the filing of a consent to judgment. See Technoimpex JSC v Rajendrakumar Jog & Ors. 36. While in the First Class Enterprises case, the court was specifically dealing with an application for rescission of a judgment by consent which had been entered by the court mero motu, it raised very pertinent legal points applicable to this case. Gowora J (as she then was) highlighted case law which resonates with this dispute. The court said: “Although there are no cases in point on this issue counsel for the plaintiff has referred me to two case authorities, viz; Lambert v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) S.A. 178. In the former case, MEGAW LJ observed [at 833C-G]: “…I would, however, say this also: that it is a jurisdiction which ought to be exercised with very great care, and it may well be that the cases in which it falls to be exercised should only be rare. It is desirable that litigation, once apparently finished, including litigation finished by means of payment into court which is either of the full amount claimed or an amount accepted deliberately by a plaintiff, ought not lightly to be allowed to be re-opened. But that there are such cases where the court has such jurisdiction is, I should have thought, apparent from the examples that were discussed during the argument before us. If, for example, the claim put forward in the county court by a plaintiff was one which contained a simple mistake as to the amount (as for example Lawton LJ suggested in the course of argument by the omission of a ‘0’ in the amount of the claim making it 150 pounds instead of 1 500 pounds) it would be absurd indeed if it were suggested that the defendant, having received the particulars of the claim, should be in a position to then promptly pay 150 pounds into court and then to say “The result under the rule, is that this action is stayed and cannot be re-opened”. Another example, which I put forward during argument is: supposing a plaintiff discovers, when it is nearly time for trial, that the damage he has suffered is substantially increased by reason of some event over and above what he has included in his particulars of claim. As a matter of courtesy, he, or his solicitors, notify the opposing side that he will amend particulars accordingly. Is it possible that the law is that in those circumstances a defendant receiving information could promptly make a payment in of the sum at that moment included in the particulars of claim and then say; ‘Well that is the end of it. This action is stayed. You, the plaintiff, may not amend your pleadings because the action is stayed and the court has no right to remove the stay’? It cannot be so. There must be, as was said by Green MR, cases in which the court has the power to set aside a stay.” This dicta was quoted with approval by O’donovan J in Molete v Union Nat South Brit Ins Co (supra). The judge went on to state thus [at183E-F]: “I do not consider that an examination of the policy considerations underlying R 18 (1) is of assistance to the respondent in relation to the Supreme Court Rules. There are, in my view, clear indications in R 34 that the unilateral act of a defendant in making a payment into Court cannot have the effect of terminating the proceedings. Acceptance by the plaintiff of the money paid is essential before the original cause of action can be said to have come to an end.” [my emphasis] The reasoning above would apply in this case with equal force. The defendant’s unilateral act of consenting to part of the alternative relief and tendering payment thereof cannot have the effect of terminating the proceedings. Acceptance of such by the plaintiff by seeking a judgment by consent is what would terminate the cause of action. This view is in sync with the Supreme Court authority of Technoimpex JSC v Rajendrakumar Jog & Ors, that it would only be the consent order which terminates the cause of action between the parties. The consent to judgment in casu did not resolve this matter or dispose of the matter as between the plaintiff and the third defendant as alleged. 37. The plaintiff’s main claim remains pending for determination at the trial. The record is also clear that the plaintiff did not exercise the discretion to file a chamber application for judgment in accordance with the consent filed by the defendant. She did not, therefore, do what she was required to do if she had intended to establish an agreement or contract leading to a resultant consent order which would effectively dispose of the matter or the entire cause of action. There was nothing, therefore, which prevented the plaintiff from amending her pleadings. She duly gave notice to amend her summons and declaration on 2 October 2023. In the amendment, the plaintiff effectively abandoned the alternative reliefs before the court. There was no objection to the proposed amendment and, therefore, by operation of the law, in terms of rule 41(5), the amendments have been deemed to have been consented to. This means that the alternative reliefs sought in the summons are no longer before the court. What the court will now have to determine is the plaintiff’s entitlement to the primary remedy sought. The matter is accordingly still properly before the court for trial. 38. There was reliance on the Simbi case by the third defendant. That decision does not assist its case at all. There was no substantive decision or determination made by the court to buttress the argument advanced by Mr Nyangani. The judgment merely relates to a PTC where no substantive decision could be made. Tagu J (as he then was) simply referred the issues to trial for determination. There was no judgment allegedly made before Chinamora J (as he then was), which was placed before me. In any event, I am not satisfied that the consent to judgment filed for part of the plaintiff’s alternative claim would be said to have terminated the proceedings or the cause of action between the plaintiff and the third defendant. 39. While the consent to judgment cannot per se be said to be irregular, it has no legal effect in this case as it was not given effect to create a contract or agreement through a chamber application for a consent order by the plaintiff. In fact, the plaintiff has since amended her summons and declaration unopposed by abandoning the alternative claims, thus rendering the said consent to judgment irrelevant to the determination of the issues before the court. It must simply be ignored as it has no legal effect in terminating the cause of action or the matter before me. The case of Founders Building Society is irrelevant. 40. For the above reasons, the objection is devoid of any legal merit and ought to be dismissed. DISPOSITION 41. The dispute between the plaintiff and the third defendant remains live. The main relief, which is now the only remedy the plaintiff is seeking following the amendment of her pleadings, remains subject to determination. The plaintiff’s claim was never settled. The consent to judgment did not dispose of the matter or terminate the cause of action between the parties. The objection, in my view, was legally unfounded. Further, it is trite at law that an action comes to an end when it is dismissed or where judgment is given in favour of the plaintiff, so far as deciding the rights of parties is concerned. The action is not at an end so far as regards the enforcement of the judgment. See Electricity Supply Nominees Limited v Farrell & Ors [1997] 2 All ER 498. 42. In the premises, the dispute must be resolved on trial. Trial shall accordingly proceed. As regards costs, since there was no prayer for costs by the plaintiff and given that the matter was not disposed of on the preliminary objection and that a trial would still be required to dispose of the matter, I believe an appropriate order of costs should be that costs shall remain in the cause. 43. Consequently, it is ordered that: 1. The objection raised by the third defendant that the matter as between the plaintiff and the third defendant has been disposed of be and is hereby dismissed. 2. Costs shall be in the cause. 3. The Registrar be and is hereby directed to set the matter down for the commencement of the trial. DEMBURE J: ……………………………………………… Absolom & Shepherd, plaintiff’s legal practitioners Mutuso, Taruvinga and Mhiribidi, 1st & 2nd defendants’ legal practitioners Nyangani Law Chambers, 3rd defendant’s legal practitioners

Judgment

KALENGA v ZHOU XIN and OTHERS (434 of 2025) [2025] ZWHHC 434 (21 July 2025)

Headnotes

Judgment

Similar Cases

Discussion

KALENGA v ZHOU XIN and OTHERS (434 of 2025) [2025] ZWHHC 434 (21 July 2025)

Headnotes

Judgment

Similar Cases

Discussion