KAMOCHA J: This is
an application for the rescission of two default judgments in case number HC
1460/07 and case number HC 907/08 with costs being jointly and severally borne
by 1st, 2nd and 3rd respondents, one paying
the others to be absolved. The applicant
was not a party to the proceedings relating to the two judgments. He, however, seeks to rely on the provisions
of order 49 rule 449 (1)(a) of the rules of this court.
The circumstances giving rise to
these proceedings are these. On 22 March
2007 the parties signed a memorandum of agreement. The first respondent Mfanukhona Phiri
hereinafter referred to as “Phiri” and his wife purchased house number 6780
Nkulumane, Bulawayo – “the property” from the second respondent David Mpofu and
his wife the third respondent.
David Mpofu was allegedly
represented by his wife. The couple was
acting through an agent known as Defiant Hardware and Construction which
prepared the agreement of sale for the parties.
Under mode of payment in clause 3
the agreement of sale reflects that a cash payment of $50 million (fifty
million dollars) had been paid. Clause 6
stipulated that the seller would give vacant possession to the buyer upon three
months notice since she had received full payment. Clause 8 stipulated that transfer would be
initiated as soon as possible.
But trouble started on 25 June 2007
when Phiri approached David Mpofu's wife seeking vacant possession of the
property.
The wife, who was still resident at
the property, would simply not co-operate.
Phiri went to Defiant Hardware and Construction – the sellers' agent
which was not helpful either. While the
sellers alleged that they had not received their purchase price from their
agent, the agent alleged that the agreement of sale was illegal because the
equivalent of the $50 million was paid in South African rands. Instead the agent suggested that Phiri should
accept another stand. This is difficult
to follow.
On realizing that the sellers were
not going to let them take vacant occupation of the property Phiri launched a
court application on 3 July 2007 in case number HC 1460/07 wherein he sought an
order directing David Mpofu to attend at the relevant Housing Office and sign
all the necessary documents to effect change of name in respect of the property
to that of Phiri within 7 days of the order, failing which the Deputy Sheriff
would do so in his place and stead to give effect of such transfer.
The application was served in
respect of both respondents on 24 July 2007 by handing copies to their daughter
Dalphin who was found at the property.
As stated earlier in this judgment the wife was still resident at the
property. There was proper service of
the application upon them by the Deputy Sheriff but they did not oppose it
resulting in the court entering a default judgment in favour of Phiri on 30
August 2007.
Since David Mpofu did not comply
with the court order the Deputy Sheriff acted in his place. City of Bulawayo granted its consent for
cession of right, title and interest in the property to Phiri on 20 November,
2007 in terms of this court's order in case number HC 1460/07. The consent is filed of record as annexure
“B” in case number HC 907/08.
The Mpofus were not only unwilling
to vacate the property but they also were busy trying to find another buyer for
the same property. They attempted to
sell it to one Mlamleli Mswazi who tried to obtain this court's order against
them, but fortuitously Phiri got wind of what was about to happen and
intervened to stop the proceedings.
In light of all this Phiri filed a
court application in case number HC 907/08 on 29 April 2008 wherein he sought
an order that the Mpofus be ordered to vacate the said property within seven
(7) days of the court order failing which the Deputy Sheriff would be
authorized to carry out their eviction from the property and all those who
claimed through them.
According to the return of service
filed of record copies of the application were served on 13 May 2008 by handing
them to a Ms Ndlovu who was found at the house.
The parties to the contest were Mfanukhona Phiri and David Mpofu and his
wife Takatso Mpofu.
The couple did not file any opposing
papers. The result was that an order was
granted by default on 26 June 2008. The
service that was effected was proper, in my view.
A month later on 25 July 2008 the
Mpofus and all those who were claiming through them were evicted from the
house. Amongst those claiming through
them was Mr Timothy Sijiye the present applicant for the rescission of the two
judgments to which he was not a party.
The applicant Mr Timothy Sijiye
hereinafter referred to as “Sijiye” does not state in his draft order what is
to happen in the event of the court granting him the order he seeks. The draft order is couched thus:-
“It is ordered:-
1.
That judgment
granted in case number HC 1460/07 be and is hereby rescinded.
2.
That judgment
granted in case number HC 907/08 be and is hereby set aside.
3.
That costs be
borne by the 1st, 2nd and 3rd respondents
jointly and severally, the one paying the others to be absolved.”
The basis for claiming the order was that he had allegedly
purchased the said property much earlier than Phiri in 1998 and had already
taken occupation of the property. That, ipso facto, made him an interested
party. He further alleged he had
instituted proceedings in this court in case number HC 1552/08 seeking to have
the sale between Phiri and the Mpofus set aside.
A look at case number HC 1552/08 reveals that after Sijiye
had been evicted in terms of an order granted by this court in case number HC
907/08 he instituted proceedings in case number HC 1552/08. He sought, inter alia, to have Phiri evicted from the said property so that he
himself could regain occupation thereof.
He also sought to interdict the transfer of the property from David
Mpofu to Phiri pending the finalization of that matter or case number HC
3804/01, whichever of the two cases would be finalized first. In the final order he sought to have the sale
of the property between Phiri and the Mpofus set aside.
The application which had been filed on a certificate of
urgency was filed on 30 July, 2008. It
was set down for a hearing in chambers on 20 August 2008. The application was dismissed with costs on
the appointed date.
In case number HC 3803/01 Sijiye issued summons on 19
December 2001 seeking an order compelling David Mpofu to sign all the documents
necessary for the transfer of rights, title or interest in the said property
from David Mpofu's name into Sijiye's name, failing doing so within seven days
of the order, the Deputy Sheriff would be empowered and directed to do so.
In his declaration Sijiye alleged that on 16 May 1998 he had
entered into an agreement of sale of the property with David Mpofu. The purchase price was $120 000,00. He allegedly paid the sum of $55 000,00 on
signing the agreement. The balance would
be paid in monthly installments of a minimum of $2 000,00 until it was
liquidated.
He averred that he had paid the full purchase price of $120
000,00 and was therefore entitled to have the rights, title or interest in the
property transferred from David Mpofu's name into his name.
The other side of the coin as averred by David Mpofu was that
Sijiye had not paid the purchase price in full.
In fact, he had not even paid the deposit in full. Instead of paying the deposit of $55 000,00
he had only managed to pay the sum of $42 400,00. The explanation he gave to David Mpofu for
his failure to pay the deposit in full was that he had applied for a loan whose
approval he expected before December 1998.
The funds from the loan would enable him to clear the balance owed. But, alas, that did not materialize. Sijiye had taken occupation of the property
which prompted David Mpofu to demand rentals from him at the rate of $2 000,00 per mensem. Sijiye allegedly failed to pay the rentals as
well. David Mpofu alleged that since
Sijiye breached the agreement by his failure to pay the purchase price he had
no option but to cancel it. The
cancellation was allegedly communicated to Sijiye in December 1998. A civil trial has already commenced in that
matter but the hearing was postponed sine
die in April 2006.
The present application was hotly contested by Phiri who
raised points in limine. The first point was that applicant should have
firstly applied to be joined to the two cases which he seeks to have
rescinded. This point is without merit
since those two matters had already been finalized. One cannot seek to be joined in cases that
have already been finalized.
The second point was that applicant was not entitled to have
recourse to the provisions of order 49 Rule 449 (1) (a) of the rules of this
court which he sought to rely on. The
provisions are couched thus:-
“449 Correction,
Variation and rescission of judgments and orders
(1)
The court or
judge may, in addition to any other power it or he may have, mero motu or upon the application of any
party affected, correct, rescind or vary any judgment or order –
(a)
That was
erroneously sought or erroneously granted in the absence of any party affected
thereby;”
It
was contended that the above provisions did not apply to the present case but
only to
civil trials and judgments
obtained following such civil trials, not applications.
I disagree. The rule applies to any judgment or order
which was erroneously sought or erroneously granted in the absence of any
affected party – even in court applications.
What is important is that the judgment or order must have been
erroneously sought or erroneously granted.
Like for instance what happened in the case of Matambanadzo v Goven 2004
(1) ZLR 399 (S) where the court granted an eviction order without the
pre-requisite certificate in terms of section 30(4) of the Rent Regulations
1982, to the effect that the requirement that the lessee vacate the dwelling
was fair and reasonable. The court did
not have the power to grant an eviction order unless the Rent Board had issued
the requisite certificate and yet it went ahead and erroneously did so in the
absence of the affected party. The order
was accordingly set aside.
The Supreme Court went to spell out
the requirement for a party to establish whether or not he/she has the
requisite locus standi in judicio to
seek the rescission of a judgment or order granted in his or her absence. SANDURA
JA had this to say at 404C-E
“The
issue which I now wish to consider is what the applicant for an order
rescinding a judgment or court order ought to show in order to establish that
he has the requisite locus standi in
judicio. That question was answered
by CORBETT J, as he then was, in United
Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (c) at 415A-C as
follows:
“In
my opinion, an applicant for an order setting aside or varying a judgment or
order of court must show, in order to establish locus standi, that he has an interest in the subject matter of the
judgment or order sufficiently direct and substantial to have entitled him to
intervene in the original application upon which the judgment was given or
order granted.”
I entirely agree with the learned Judge
and that is the test which I shall apply in considering whether Matambanadzo had the requisite locus standi to seek the rescission of
the order granted on 19 December 2001.”
I, too, shall apply the same test
and accordingly find that Sijiye had the requisite locus standi in casu.
But the final issue to be determined
is whether or not the two judgments Sijiye seeks to have rescinded were
erroneously sought or erroneously granted.
I have found that David Mpofu and his wife were properly served in terms
of the rules as the applications were served on responsible people found at the
premises.
No notice of opposition was filed in
respect of each case. The court made no
error in granting each of the judgments Sijiye sought to have rescinded. His application must, accordingly fail.
In the result I would dismiss the
application with costs.
Shenje & Co, applicant's legal practitioners
Job Sibanda & Associates, 1st
respondent's legal practitioners
