(1) FEXEN MPANSI (2) EDWARD DUBE
(3) JABULANI DUBE (4) VINCENT DUBE (5) THOMAS MPANSI
(1) MORGAN DUBE (2) THE MASTER OF THE HIGH COURT
(3) WILBERT NYAMUFUKUDZA N.O.
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & HLATSHWAYO JA
HARARE, JULY 16, 2013 & APRIL 21, 2015
C F Dube, for the applicants
N Chikono, for the first respondent
HLATSHWAYO JA: This is an application for the correction or variation of the order issued by the Supreme Court under SC 161/09 on 16 July 2011 allowing the appeal by the applicants (then appellants), on the basis that the order is ambiguous. The application was filed under the same case number as the original appeal. The impugned order (per SANDURA JA with GARWE JA and CHEDA AJA concurring) reads as follows:
“1. The appeal is allowed with costs.
2. The order of the court a quo is set aside and the following is substituted:
“Judgment is granted for the plaintiffs with costs to the extent that the will attested to by the late Richard Mpansi and registered with the second defendant under LW 47/2005 be and is hereby declared null and void.”
The applicants contended that the above order must be interpreted to mean that the first respondent is liable for costs in his personal capacity or, alternatively, since he participated in the litigation in a representative capacity as a duly appointed executor, he should pay such costs out of his own pocket (de bonis propriis) as he had allegedly conducted himself grossly negligently and maliciously in defending the validity of the will. Accordingly, the applicants pray that the above order be “corrected” to read as follows:
"1. The appeal be and is hereby allowed with costs (to be) borne by the first respondent on a party/party scale.
2. The order of the court a quo is set aside and the following substituted:
‘Judgment is granted for the plaintiffs with costs being borne by the first defendant on a party/party scale to the extent that the will attested by the late Richard Mpansi and registered with the second defendant under LW 47/2005, be and is hereby declared null and void.’” (emphasis added)
The key issue is whether this matter is properly before this Court.
The applicants have approached this Court in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971. The High Court Rules apply pursuant to Rule 58 of the Rules of the Supreme Court, 1964 which provide that the practice and procedure of this Court shall follow that of the High Court where the Rules of this Court are silent on any matter.
Rule 449 of the High Court Rules provides that a court or judge may, in addition to any power it or he may have, mero motu or upon application by any party affected, correct, rescind or vary any judgment or order, inter alia, in which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error or omission.
The applicants submitted that the order of the Supreme Court lacks clarity and certainty as to whether the first respondent is liable to pay costs personally or whether such costs should be paid out of the estate.