MAKONI J: The applicant approached this court seeking
an order to rescind the order granted by this court on 1 April 2009 in HC
6379/07. He approaches the matter from two fronts He seeks rescission in terms
of r 63 as well as in terms of r 449 of the High Court Rules (1971) (the
rules). His basis for seeking the order is that he was not aware that the
matter had been set down for a pre-trial conference. He did not receive the
correspondence from his legal practitioners advising him of the set down date.
He would receive correspondence from his legal practitioners through his son's
garage address. The person who would receive the correspondence left the employ
of his son. He did not handover the correspondence to anyone.
The
applicant also avers that he has a bona
fide defence on the merits on the basis that the respondent has no locus standi to bring a rei vindicatio claim against him. The
land in dispute was acquired and ownership now vests in the State.
The applicant also avers that the
judgment was erroneously sought and erroneously granted as the proceedings of
the pre-trial conference were not done in terms of r 182(11). No oral
application was made to strike out the applicant's plea.
The
application is opposed on the basis that the applicant failed to give a
reasonable explanation of his default. He did not file a supporting affidavit
from his legal practitioners to support his story. The respondent also avers
that it did not file a rei vindicatio claim
but a claim for damages.
I
will first deal with the application in terms of r 63.
Rule
63(2) provides that a court may set aside a default judgment if it is satisfied
that there is good and sufficient cause. The factors to be taken into account
in considering whether or not there is good and sufficient cause to rescind a
judgment have been set out in a number of cases in our jurisdiction. In Roland & Anor v Macdomeli 1986(2)
ZLR 216 (SC) at 226 E – F the then learned CHIEF JUSTICE DUMBUTSHENA had this
to say:-
“In coming to a final decision one
has to ask whether the defendant has shown 'good and sufficient cause' within
the meaning of r 63 of the High Court Rules. Did the court a quo take into account:-
(a)
the
defendant's explanation of his default
(b)
the
bona fides of the application to rescind the judgment and
(c)
the
bona fides of the applicant's defence
on the merits of the case, and did the court normally consider these matters in
conjunction with each one and cumulatively”.
See also Dewera's Farm (Pvt) Ltd
& Ors v Zimbabwe Bankury Corp Ltd 1998 (1) ZLR 368(5), Stockhil v Griffiths
1992 (1) ZLR 172(5) Songore v Olivine Industries (Pvt)Ltd 1988(2) ZLR 210(5)
I will deal with each of the factors
in turn.
Applicant's explanation for his
default
The applicant's explanation is that
he was not aware that the matter had been set down for
a pre-trial conference. Mr Paul conceded, in his submissions, that
the applicant was not aware of the set down date. He took issue with the fact
that the applicant's legal practitioners should have filed an affidavit to
explain their conduct. It was his submission that the legal practitioners did
not do enough to bring the date to the attention of the applicant. The issue
that then falls for determination is whether the applicants default was wilful.
Wilful default was defined in Zimbabwe
Banking Corporation v Masendeke 1995(2) ZLR 400(5) at 402C as occurring:-
“When a party, with full knowledge
of the service or set down of the matter, and of the risks attendant upon
default, freely takes the decision to refrain from appearing”
See also Matambanadzo v Zvidzai Jameson Zvavamwe SC 99/02
It is clear from the above
authorities that the applicant's default cannot be described as
wilful. He did not have any
knowledge of set down date of the pre-trial conference neither did he have
knowledge of the subsequent renounciation of agency by his legal practitioners.
He did not take a conscious decision not to attend the pre-trial conference.
In
my view, the conduct of the applicant's legal practitioners is beyond reproach. They did what they could in
the circumstances. They directed correspondence to the address provided by the
applicant. When they did not receive a response, they proceeded to renounce
agency. In my view, once there is a concession that the applicant was not aware
of the set down date, that is the end of the enquiry.
The bona fides of the application and the bona fides of the applicant's defence on the merits
I agree with the applicant's
counsel's approach to deal jointly with the above factors as
they have a direct bearing on each other.
What
constitutes a bona fide defence has been
dealt with in Greenberg v Meds Veterinary
Laboratories (Pvt) Ltd 1977(2) SA
277 (TPD) (quoted with approval in Roland & Anor supra at 227 D-E), in the following terms:-
“The sole question for decision,
therefore, is whether the applicant has a bona
fide defence to that application. The onus is on the applicant for
rescission to establish that fact. The requisites for success in establishing
it were stated in Grant v Plumbers (Pvt)
Ltd 1949(2) 470 (O) as:
“It is sufficient if he makes out a prima facie defence in the sense of
setting out averments which, if established at the trial, would entitle him to
the relief asked for. He need not deal fully with the merits of the case, and
produce evidence that the probabilities were actually in his favour”.
The
plaintiff's (respondent in this matter) claim in HC 6379/07 is that it
legitimately carries on farming operations from Frogmore farm. The defendant
(applicant in this matter) wrongfully and unlawfully moved his belongings and
personnel onto a portion of the farm and wrongfully and unlawfully interfered
with the plaintiff's farming operations. This resulted in the plaintiff
suffering damages in the sum of US $38 250-00 which he now prays for.
In his plea, the defendant contends
that his actions were lawful as his occupation of the farm was consequential
upon an offer letter from the Government of Zimbabwe.
There is a dispute, as between the
parties, whether the farm in question has acquired. The applicant contends that
is was acquired and as a result the respondent has no locus standi to bring the claim as it is based on a rei vindication claim. The respondent
contends that the farm was not acquired and that there are judgments of this
court to that effect. In any event the respondent's claim is not a vindicatory
action.
In
my view, the applicant has made out a prima
facie defence which if established at the trial, would entitle him to the
relief applied for. He is putting in issue the legitimacy of the plaintiff to
carry on farming activities on the farm. He has also claimed to have moved on
the farm legitimately based on the offer letter given to him by Government.
These issues need to be ventilated at a full trial. The issue of whether the
respondent has the necessary locus standi
in judicio to sue the applicant as an occupier is before the Supreme Court in
SC 31/08 and SC 163/08. It is a live
issue which needs determination.
Having
made a finding that the applicant has a bona
fide defence, it means that the application is made bona fides.
Rule
449
The
applicant submits the that the judgment could be set aside in terms of r 449 as
it was erroneously granted in that the provisions of R 182(11)(b) were not
followed. The record reflects that no oral or chamber application to strike out
the defendant's defence was made as is provided for in the rules. It can only
be inferred that the judge who dealt with the pre-trial conference struck out
the applicant's defence mero motu.
Mr
Paul, who also represented the
respondent at the pre-trial conference, conceded that no oral application to
strike out the applicant's defence was made. The concession by Mr Paul is very noble as he could have
argued otherwise as the applicant was in default.
Rule
182(11) deals with course of action available to the court at pre-trial
conference where one party is in default.
It
provides:-
“A judge may dismiss a party's claim
or strike out his defence or make such other order as may be appropriate
if
(a)
the
party fails to comply with directions given by a judge in terms of subrule (4),
(6), (8) or (10) or with a notice given in terms of subrule (4); and
(b)
any
other party applies orally for such an order at the pre-trial conference or
makes a chamber application for such an order”.
The rule makes use of the
conjunctive 'and' between par (a) and (b). What this means is
that the situations contemplated in those
paragraphs must both be fulfilled in order for the court to validly strike out
a defaulting party's defence.
In
casu is not in dispute that the
applicant failed to comply with a notice given to him in terms of r 182(4).
There is a concession from the respondent that it did not make an oral
application for the striking out of the defendant's defence. This suggests that
the judge struck off the applicant's defence mero motu. This brings out the issue whether a judge has the power
to strike out a defendant's defence mero
motu.
An
almost similar issue was dealt with in Sibindi
v ARDA 1994(1) ZLR 284 (S) at 287G-288 A-B. GUBBAY CJ (has he then was) was
dealing with a situation in which the court a
quo had dismissed the plaintiff's claim when the defendant was in default
of appearance at the trial. There was no application before the judge to grant
such an order. He had this to say at pp 287G-288A-B;
“It is well established that a
superior court has an inherent jurisdiction to dismiss an action. See Meyer v Meyer 1948 (1) SA 484 (T) at
487; Broughton v Manicaland Air Services
(Pvt) Ltd 1972 (1) RLR 350(G) at
352B-C, 1972 (4) SA 458 at 460 A-B; Schoeman
en Andere v van Tonder 1979 (1) SA 301 (O) at 304 G-H; Kuiper & Ors v Benson 1984 (1) SA 474 (W) at 476H-477B. But I
am unaware of any decision in which that power has been exercised by the court mero motu and in favour of a defendant
who is in default. Invariably its exercise has followed upon the making of an
application and, I believe, correctly so.
An examination of the Rules of the
High Court appears to me to support the view I take. They reveal that an action
may be dismissed on application by the defendant where the plaintiff has been
barred from declaring or making a claim (rule 6); or on the ground that the
action is frivolous or vexatious (rule 75); or for non- compliance with an
order compelling production of a document (rules 168 and 169(4) or requiring
answers to an interrogatory (rule 196). No provision is made for dismissal of
an action solely at the instance of the court or judge”
I would add r 182(11) to the rules
referred to in the above quotation. It does not provide for
a dismissal of an action solely at
instance of the court or judge.
I
would agree with the applicant that the order to strike out the defendant's
defence was granted in error. In terms of r 449 (1)(a) the court may inter alia, upon application of any
party affected, rescind an order that was erroneously granted in the absence of
any party affected by it. The facts of this case fall squarely within the ambit
of R449 (1)(a).
In
the result, I will make the following order.
1.
The
judgement of this court granted on 1 April 2009 be and is hereby rescinded.
2.
The
respondent to pay the applicant's costs of suit.
Chikumbirike &
Associates,
applicant's legal practitioners
Wintertons, respondent's legal practitioners
