NYAHONDO FARM

and

KIM BIRKETOFT

and

MELLISA BIRKETOFT

and

VANESSA BIRKETOFT

versus

DENISE ROSAMOND BIRKETOFT

IN THE HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 26 January 2018 and 25 April 2018

Opposed Matter

Advocate T. Magwaliba, for the applicants

Matizanadzo, for the respondent

            MWAYERA J: The applicants approached the court seeking for rescission of judgment in terms of order 49 rule 449 (1) of the High Court Rules, 1971. The issue that falls for determination is whether or not the judgment sought to be rescinded was erroneously granted.

            It is worth noting that the second applicant is the Managing Director of the first applicant. The second to fourth applicants are shareholders to the first applicant. The second applicant and the respondent are a divorced couple. The applicant sought amendment on citation to reflect the first applicant as a private limited company. Given the common cause aspect that the order sought be rescinded under HC 9608/16 correctly spell out the then respondent as a private limited company and that the company was party to the proceedings therein in my view there is no prejudice which will be occasioned on the respondent by the  amendment of pleadings to reflect the first applicant properly as a private limited company.

            The brief background of the matter has to be put into perspective. The respondent obtained a judgment from this court under HC 9608/16. The order granted the respondent’s application for liquidation and it dismissed the applicants’ opposition over none filing of heads of arguments. Effectively the applicants were held to have been barred.