MATHONSI J: In Case No. HC 1951/09 the Respondent issued
summons against the applicant seeking, among other things, the cancellation of
a lease agreement and the eviction of the respondent and all those claiming
through her from premises known as No. 12 Celrose Flats 3rd Avenue
and J. Tongogara Street, Bulawayo.
The basis for
that was that the applicant had neglected to pay rentals in terms of a rent
order issued by the Rent Board resulting in her falling in arrears and that she
was subletting the premises without the respondents consent in breach of the
lease agreement between the parties.
The
applicant, then represented by Cheda and
partners of Bulawayo, contested that action and in her plea filed of
record, other than making a bare denial that she was subletting the premises,
she only raised procedural objections which did not address the merits of the
matter. In particular, she did not deny
that she was in rent arrears.
When the
matter was set down for pre-trial conference on 16 November 2010, the applicant
and her legal practitioner defaulted despite being served with a notice to
attend on 5 November 2010. As a result,
her defence was struck out and respondent was granted leave to set down the
matter on the unopposed roll for finalisation.
This, the respondent did on 13 January 2011, almost two months after the
applicant's defence was struck out. The
applicant had done absolutely nothing about her default at the pre-trial
conference.
On 13 January
2011 default judgment was granted for the cancellation of the lease agreement,
eviction of the applicant, payment of arrear rentals and costs of suit. That notwithstanding, it was not until 16
February 2011, more than one month after judgment was entered that applicant
filed her application for rescission of judgment under case number HC 436/11.
On that same
date, she filed an urgent application in case number 450/11 for a stay of
execution pending the hearing of the rescission of judgment application. A provisional order was granted in her favour
to that effect on 17 February 2011. Both
applications have been opposed by the respondent and were consolidated for
purposes of argument.
The
applicant, who appeared in person, argued that she was not in wilful default
because her then legal practitioners' Cheda
and partners had written a letter to her advising her of the pre-trial
conference set for 16 November 2010 but their letter had not been posted to
her. She said, she “could not get a
satisfactory answer as to why” this was so.
It is for that reason that she was unable to attend court.
The applicant
has not proffered any explanation why her legal practitioner also defaulted at
the pre-trial conference.
Regarding the
merits of the matter she submitted that she should not be evicted because she
is a family person who has nowhere else to go.
She stated that she was being discriminated by the agent of the
landlord, Knight Frank, on tribal grounds.
She conceded that she was in rent arrears but said that this was occasioned
by the refusal of Knight Frank to accept her tender of monthly rentals in the
sum of US$55-00 in terms of the rent order as they insisted on her paying
US$70-00 per month.
She argued
that she had been forced to pay the rentals into the trust account of her own
legal practitioners in the hope that they would forward the money to the
respondent. She produced an
acknowledgement of receipt issued by Cheda
and partners showing that she had been refunded a sum of US$270-00 on 16
February 2011 when they ceased to act on her behalf. She also produced two receipts issued by
Knight Frank for US$105-00 on 30 May 2011 and 6 July 2011.
Given that
these documents were issued long after the eviction summons was issued on 24
November 2009 nothing turns from them as they do not show that applicant was
not in arrears when litigation commenced.
Against that
is the correspondence between applicant's then legal practitioners Cheda and partners and respondent's
legal practitioners showing that applicant admitted liability to pay the rental
of US$55-00 per month as far back as March 2010. She was advised that the arrears should be
paid to Danziger and partners,
respondent's legal practitioners. She
did not pay anything despite at one stage offering to clear the arrears in 14
days time from 18 March 2010.
Regarding the
claim that the applicant was subletting the premises, respondent filed a
document signed by one Lungile Ndlovu which reads in part as follows:
“TO WHOM IT
MAY CONCERN
FLAT 12 CELROSE MANSIONS
We the following students are
subleasing the flat from Rejoice Sibanda
(a) Lungile Ndlovu
signed
Signature
(b) Anitah Ncube Not
signed
Signature
As students we are paying R700
or US$70-00.
We agree to vacate premises on
the 31st August 2009”
The applicant
countered this by producing notes written by Lungile Ndlovu and Anitah Ncube
disowning the above document. Anitah
Ncube claimed that she had started staying at the flat because the applicant
was her aunt but she was not subleasing.
Lungile Ndlovu said she was invited by Anitah Ncube who was related to
the applicant. Surprisingly, in her oral
submissions in court, the applicant claimed that it was Lungile Ndlovu who was
her niece.
Clearly
therefore the applicant was not being truthful and did not disprove the claim
that she was subletting.
In terms of
rule 63(2) of the High Court of Zimbabwe Rules, 1971, a party seeking
rescission of a judgment given in default must show that there is “good and
sufficient cause”, to do so. The factors
which a court will take into account in determining whether an applicant for
rescission has discharged that onus are the reasonableness of the Applicant's
explanation for the default, the bona fides of the application to
rescind the judgment and the bona fides of the defence on the
merits. These factors must be considered
in conjunction with one another and with the application as a whole. Stockill
v Griffiths 1992(2) ZLR 172 (S) at 173 D – F. Roland
and Another v McDonnell 1986(2) ZLR216(S) at 226 E-H. Songere
v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210(S) at 211 C – F; Howera v Mudzingwa and others HB 123/10.
In my view,
not only has the applicant failed to give a good explanation for the default,
she has also dismally failed to show any bona fide defence to the
claim. She hopelessly breached the lease
agreement and cannot come back asking for the indulgency of a rescission of
judgment. This is a classic case of an
abuse of process by a litigant who has shown no shame whatsoever even after
being caught subletting the premises.
Her conduct deserves to be visited with costs at an enhanced scale.
The
application for rescission of judgment cannot succeed. As the provisional order staying execution
had been granted to allow her to prosecute the rescission of judgment
application, it follows that it must be discharged.
In the
result, I make the following order:
(1) The application for rescission of judgment in Case No. HC 436/11 is hereby dismissed.
(2) The application in Case No. HC 450/11 is
hereby dismissed and the provisional order discharged.
(3) The applicant shall bear the costs on an attorney and client
scale.
Messrs Danziger and
partners, respondent' legal practitioners
