HH 202-18 GERTRUDE PAZVICHAINDA STEMBILE MUTASA and DIDYMUS MUTASA versus NYAKUTOMBWA MUGABE LEGAL COUNSEL

GERTRUDE PAZVICHAINDA STEMBILE MUTASA

and

DIDYMUS MUTASA

versus

NYAKUTOMBWA MUGABE LEGAL COUNSEL

 

 

HIGH COURT OF ZMBABWE
TSANGA J
HARARE, 29 March 2018 & 11 April 2018

 

Opposed Application

 

D Mwonzora, for the applicants
P Nyakutombwa & T R Mugabe, in person

 

                TSANGA J: This application for rescission of judgment was brought under Order 49 r 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement. The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home. It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party. She brought an urgent chamber application in February 2017 seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour in February 

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