Automated Summary
Key Facts
On 13 April 2023, the applicant filed a class action in HCH 2484/23 where the respondent was initially cited as 'Homelux Property Development,' which was later corrected to 'Homelux Land Developers (Pvt) Ltd.' On 27 March 2024, the court granted an order but erroneously cited the respondent as 'Homelux Property Investments,' a party that had never been cited in the proceedings. The applicant applied to correct this error on 8 July 2025.
Issues
- Whether the application to substitute Homelux Land Developers (Pvt) Ltd for Homelux Property Investments in the court order satisfies the legal requirements for party substitution under common law and High Court Rules, considering the test of prejudice to the other party and whether the amendment involves mere correction of wrong name versus material amendment to judgment.
- The court needed to determine whether the order granted in Case No. HCH 2484/23 contains a patent error by citing 'Homelux Property Investments' as the respondent when the correct party was 'Homelux Land Developers (Pvt) Ltd' which was never cited in the proceedings, and whether this error could be corrected as claimed under Rule 29(1) of the High Court Rules.
- The court had to consider whether to grant condonation for the applicant's late filing of the application for correction of the court order, which was filed approximately 14 months after the order was granted on 28 March 2024, despite the one-month time limit under Rule 29(2) of the High Court Rules, and whether the delay was justified.
Holdings
The court granted the applicant's application to substitute Homelux Land Developers (Private) Limited for the respondent in Case No. HCH 2484/23, correcting a patent error where the order had incorrectly cited Homelux Property Investments. The court also granted condonation for the late filing of the correction application and ordered the respondent to pay the costs of suit.
Remedies
- The respondent was ordered to pay the costs of suit following the granting of the application for correction or variation of the court order, following the general rule that costs should follow the cause.
- The court granted correction or variation of the court order in Case No. HCH 2484/23 by substituting 'Homelux Land Developers (Private) Limited' for 'Homelux Property Investments', correcting a patent error where the order was granted against a party that was never cited in the proceedings.
- The court granted condonation for the late filing of the application for correction or variation of a court order, as the application was filed outside the prescribed one-month period under r 29(2) of the Rules, but found it to be in the interests of justice given the patent error in the original order.
Legal Principles
- Rule 29(1) of the High Court Rules empowers courts to correct orders containing patent errors, ambiguities, or omissions. The court may correct its own judgments without altering the sense and substance of the order. Condonation requires showing sufficient cause, reasonable explanation for delay, and prospects of success. Substitution of parties is permitted where there is no prejudice that cannot be compensated by costs.
- A litigant cannot approbate and reprobate a step taken in proceedings—they must take one position consistently. Once a party corrects a name without objecting to the proceedings, they cannot later argue the parties are distinct entities. This principle prevents parties from taking inconsistent positions.
- The general principle that he who alleges or makes a positive assertion must prove the grounds for their claim. The party bearing the onus of proof must satisfy the court that their assertions are correct, as stated in Corpus Iuris and supported by Mobil Oil Southern Africa (Pty) Ltd v Mechin and January v Maferefu.
- When correcting a party citation, the court distinguishes between mere correction of a wrong name versus material amendment. Correction is allowed if it does not change the identity of the party and no prejudice results. The applicant must demonstrate the correct party was the one before the court, merely misdescribed.
Precedent Name
- Chiunga v AFC Commercial Bank Ltd SC 02/26
- Jongwe & Anor v National Foods Ltd SC 91/25
- Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (AD)
- S v Marutsi 1990 (2) ZLR 370
- Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (HC)
- Deputy Sheriff Karoi v Edward Chigango & Ors HH 310/14
- Hopcik Investments (Pvt) Ltd v Minister of Environment, Water and Climate and City of Harare HH 336/16
- Smith v S 2012 (1) SACR 567 (SCA)
- Mapondera & Ors v Freda Rebecca Gold Mine Holdings (Private) Limited SC 81/22
- Sergeant Mhande 04737T & Anor v The Chairman of the Police Service Commission & Ors SC 63/18
- Zimslate Quartize (Pvt) Ltd & Others v Central African Building Society SC 34/17
- Friendship v Cargo Carriers Ltd & Anor SC 01/13
- Mupindu & Ors v Mupindu & Anor SC 115/25
Cited Statute
- Class Actions Act [Chapter 8:17] Section 3
- High Court Rules 2021
- High Court Rules 2021 Rule 29(2)
Judge Name
Justice Dembure presiding over the High Court of Zimbabwe
Passage Text
- An error or omission as a result of which the judgment or order granted does not reflect the intention of the judicial officer pronouncing it.
- 1. The application to amend the citation by substituting Homelux Land Developers (Private) Limited for the Respondent in Case No. HCH 2484/23 be and is hereby granted. 2. Subsequently, the court order in Case No. HCH 2484/23 is hereby amended by substitution of 'Homelux Land Developers (Private) Limited' for 'Homelux Property Investments'.
- While the delay was inordinate and the explanation for the delay unreasonable, given the circumstances where the order clearly has a patent error which is common cause and that the applicant has good prospects of success, it would not be in the interests of justice to close the door on the applicant.