This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.
The facts relevant to the resolution of the dispute between the parties are briefly these:
The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.
The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.
As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.
The respondent filed an application for rescission of the default judgement under case number HC548/14.
The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:
“MEMORANDUM OF AGREEMENT
It be and is hereby recorded that following a meeting between:
Plaintiff and her legal practitioner Mr G. Nyoni
Defendant and his legal practitioner Mr S.S. Mazibisa
It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:
1.The execution of Defendant's property be stayed only and strictly on the following conditions:
(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.
(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.
2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.
3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.
4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.
DATED at BULAWAYO on this the 26 day of MARCH 2014.”
It was signed by both parties and their respective legal practitioners.
As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.
The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.
On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:
“RE: M. NCUBE vs SIPIWO NKOMO
The above matter refers and to our previous conversation.
Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.
In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”
The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.
On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.
The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:
“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13
The above matter refers and to the attached court order.
Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.
What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.
In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.
As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”
That letter elicited a response from the applicant's legal practitioners in this vein:
“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”
This letter provoked no response from the respondent hence the current application.
At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.
I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.
As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.
I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.
In his heads of argument, the respondent raised three issues in opposing the grant of this application. I herewith deal with them hereunder:...,.
(b) That respondent did not withhold information from the court when he obtained rescission of the default judgment
The argument by the respondent here is that he did not conceal the existence of the agreement when he applied for and was granted the default judgment in HC548/14 because that agreement had been “filed with the Registrar and became part of the record in the main matter which was cross-referenced to in the application for rescission.”
The paucity and fallacy of this argument is too glaring to escape censure.
Firstly, the respondent does not say who had filed it and in which case number of the three cross-referenced cases.
What he refers to as the main matter can only be HC2869/13 wherein the applicant is the owner of the litigation and she could not have filed it therein when the agreement had not yet been concluded.
In any event, it was the respondent's duty to bring the existence of that agreement to the court's attention in HC548/14 by either attaching a copy, or, if, as he alleges, a copy had already been filed in one of cross-referenced cases, to lead the court to the particular cross-referenced case.
Surely, the respondent cannot expect the Honourable Judge to peruse all cross-referenced files for a document not alluded to in the current matter, especially in Bulawayo High Court matters, where, for some very amiss and inexplicable reason, except to push volumes by legal practitioners in order to maximize on fees, those cross-references are a volume of files in almost all matters civil.
Further, the argument that the respondent concealed the existence of the agreement in question from the court is corroborated by his prior sly conduct evinced in annexure “E” to the applicant's founding affidavit, namely, the letter of 3 September 2014, quoted above, wherein he fooled the applicant by alluring her into believing that he would pay what was due with effect from end of that month, and, if he could be obliged with copies of the filed pleadings to replace his which had been lost.
He deliberately hoodwinked the applicant because he very well knew that the purpose for which he required those copies was to go behind the applicant's back and resume the application for rescission which had already been settled via the agreement which he had breached by failure to pay.
This indeed is dishonest and unethical conduct, by a litigant who is a legal practitioner and an officer of court, of the highest order.
No wonder the applicant expressed shock and disbelief after receiving the respondent's legal practitioners letter of 19 November 2014, gleefully waving a copy of the default judgment surreptitiously obtained on 23 October 2014.
I am convinced, that, had the existence of the agreement been brought to the attention of KAMOCHA J in HC548/14 and also the respondent's letter of 3 September 2014, the Honourable Judge would certainly not have granted that default judgment, or, at the very least, he would have directed the respondent to give the applicant notice that he was going back to court to resume his application for rescission of judgement.
From the foregoing findings, it is apparent, that, the applicant has shown good cause for the granting of rescission of the default judgment in case number HC548/14.
