Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach, Unopposed Suits & Pleadings on Record

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

Background

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

Judgment Appealed Against

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

Grounds of Appeal

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

Criteria for Condonation of Non-compliance

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

(h) The avoidance of unnecessary delays in the administration of justice.

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

Whether Defence to Claim was Articulated

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

Which Prospects of Success

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

Whether Criteria for Condonation Properly Assessed

The appellant does not dispute that his erstwhile legal practitioners displayed a flagrant disregard for the Rules in the manner in which they conducted themselves in the main matter. Nevertheless, he avers that he has a viable and bona fide defence to the respondents claim in that matter.

In this respect, counsel for the respondents submits, that, condonation for non-compliance may be refused even if the applicant concerned has demonstrated good prospects of success.

This submission is clearly correct as is illustrated by the case of Kodzwa v Secretary for Health and Child Welfare & Anor SC50-99…, where SANDURA JA remarked:

“Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

While this approach is unassailable, it does not, whether expressly or impliedly, discount the need to consider, cumulatively, all of the factors to be taken into account, and to weigh them in a measured balancing exercise, before deciding whether or not condonation should be granted in any given case: see Maheya v Independent African Church SC58-07 …,.

This position is also aptly captured in Chiweza & Anor v Mangwana & Ors HH186-17 per DUBE J…, as follows:

“The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other.

The application for condonation is not decided on one exclusive factor.

The existence of strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter.

Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application.

The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavor [sic] to be fair to all the parties involved.”

In the instant case, it is evident that the court a quo focused solely on the reasons for non-compliance, i.e. the gross lack of diligence on the part of the appellant's erstwhile legal practitioners and the vicarious attribution of their incompetence to the appellant himself.

The court failed to assess all the other relevant aspects of the test for condonation.

In particular, it totally failed to evaluate the appellant's prospects of success, whether in respect of the intended application for rescission or in respect of the main matter. The court only considered the reasonableness of the explanation proffered by the appellant for the delay in applying for rescission of the default judgment.

Having found that the appellant's explanation was not reasonable, the court proceeded, without further ado, to dismiss his application for condonation.

However, it was imperative for the court to have assessed all the other salient factors to be considered, in a cumulative fashion, and then to have weighed them against each other, before declining to grant the application before it.

In failing to do so, it proceeded upon the wrong principle and consequently gravely misdirected itself.

Disposition

Given my findings in respect of the first and second grounds of appeal in favour of the appellant, I do not deem it necessary to consider the merits of the third and fourth grounds which are essentially tangential to and dependent upon the first two grounds.

A determination of those grounds is also rendered otiose in light of the amended relief sought by the appellant at the hearing of this appeal, viz. that the matter be remitted to the High Court, before a different judge, to deal with the matter de novo.

The decision of the court a quo was based on the exercise of its discretion on whether or not to grant the application for condonation.

It is trite that an Appellate Court will not readily interfere with the exercise of discretion by a subordinate court. It should only do so, having regard to the oft-quoted test enunciated in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, per GUBBAY CJ:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration.”

In casu, I have earlier adverted to the errors made by the learned judge a quo in the exercise of his discretion:

(i) Firstly, he mistakenly found that the appellant had not articulated his defence to the main claim and thereby failed to take into account the relevant considerations underlying the appellant's prospects of success.

(ii) Secondly, he confined his attention to the reasonableness or otherwise of the explanation advanced by the appellant for the delay in applying for rescission of the default judgment.

By not having regard to all the salient factors to be considered in an application for condonation, in particular, the appellant's prospects of success in either the intended application for rescission or in the main matter, and by not balancing those factors against each other, the learned judge proceeded on the wrong principle and thereby incurably misdirected himself.

Consequently, the foregoing errors and misdirections, in the injudicious exercise of his discretion, operated to vitiate his decision to dismiss the application for condonation before him. It follows that the decision cannot be allowed to stand and must be set aside.

As regards the relief to be granted in casu, the most appropriate remedy would be to remit the matter to the High Court to enable a different judge to address and determine the application for condonation on a proper basis.

Furthermore, it also seems expedient, in order to expedite the finalisation of the matter, that the application for rescission be adjudicated at the same time as the application for condonation.

In my view, there is nothing, in principle, to preclude the composite adjudication of the two applications together, especially as the considerations to be applied in the determination of both applications are virtually identical.

As regards the costs of this appeal, there is no compelling reason why they should not follow the cause.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted to the High Court, before a different judge:

(a) To determine the application in Case No. HC1067/18 for condonation of the late filing of the application for rescission of the default judgment granted in Case No. HC2424/17 on 26 October 2017; and

(b) Thereafter, in the event that the aforesaid application for condonation is granted, to determine the aforesaid application for rescission of the default judgment.

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.

I also dismissed the respondent's application for upliftment of bar for reasons I here upon elucidate.

The background facts are these:

The applicant bought the property through a Sherriff's sale for $116,000. The property is described as Subdivision A, Lot 16, Block B of Avondale, held under Deed of Transfer Registration No.4835/05.

The sale was in execution of a debt owed to Genesis Bank by the first respondent and his business partners and for which the property belonging to both respondents had been used as security.

Mr Maxwell Kufakunesu Chisvo was declared the highest bidder for the property on 18 March 2013.

On 19 March 2013, the second respondent applied to have the sale set aside on the basis that the price realised was unreasonable, given that their own evaluation was for $215,000.

The second respondent's application, which was in terms of Order 40 Rule 359, also contained various averments regarding the impropriety of the security that the Bank had obtained in the initial instance.

The application was dismissed in July 2013 and the sale was confirmed since the judgment debtor had failed to produce the buyer for this higher price.

Issues relating to any impropriety regarding the obtainment of the initial security were said to be matters for the court.

The property was duly transferred into the applicant's name in January 2014, which was some six months later.

On 22 January 2014, the applicant gave the respondents notice to vacate the premises.

On 24 January, the respondents practitioners wrote to the applicant's representative advising them of pending proceedings to challenge the terms on which the property had been acquired.

It was the applicant's position, that, the sale was no longer conditional but a confirmed sale, and, accordingly sought eviction on 10 February 2014 and holding over damages.

The respondents filed a notice of opposition, on 25 February, in which they argued, that, the highest bidder was one Mr Kufakunesu Chisvo and that they were surprised that the property was then transferred to Ladrax Investments (Pvt) Ltd.

Their primary objection was that the applicant is an imposter.

The applicant filed its answering affidavit, on 25 February, explaining that the applicant is a company whose directors are Mr Kufakunesu Chisvo and his wife, Joyce Chisvo.

He further explained, that, Mr Chisvo had made a request for the property be transferred into the applicant's name, which wish was acceded to by the Sherriff.

On 24 April 2014, the applicant filed its heads of argument. This is not disputed (the certificate of service confirms says that these were served on the Respondent on the 24th of May 2014. However the Registrar's stamp on proof of service reads 23rd of May so the assumption is that 24th of May is most likely a typing error and should have read 24th April which was when the heads were filed with the court).

It is also not in dispute, that, the respondents failed to file their heads of argument and were therefore barred.

The relevant Rule of the High Court, 1971 reads as follows:

“Rule 238(2a)

Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than 10 days after the heads of argument of the applicant or excipient, as the case may be were delivered to the respondent in terms of sub-rule (1); provided that –

(i) No period during which the court is on vacation shall be counted as part of the ten day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on merits or direct that it be set down for hearing on the unopposed roll.”

On 8 October 2014, some five months after the filing of the applicant's heads, the matter came before me for hearing.

The respondents, being barred, they sought to make an application for upliftment of the bar through their practitioner…,.

He stated, that, the respondents case for upliftment of the bar is based on prior proceedings in which the allegation of fraud were made. He clarified to the court, that, when his firm received instructions from the respondents, its view was that an independent assessment of the allegations was necessary. As such, he said they were reluctant to push the matter without independent evidence. He went on to state, in his quest, that, a report had since been produced, on 25 September 2014, which would now form the basis of the application for upliftment of the bar.

It is necessary here to say a few words about the nature of those allegations as gleaned from the papers filed of record.

The respondents made allegations of fraud in the acquisition of the loan by one of the husband's business partners, particularly in that he had forged the second respondent's signature in order to register the bond.

The respondents had purported to bring two applications against Genesis Bank - one for condonation of late filing for rescission of the default judgment that the Bank had obtained resulting in the sale (HC973/13), and, another, for the actual rescission of the judgment itself (HC11069/11).

However, the respondents, having failed to pursue these applications to their logical conclusion, the documents filed of record indicate that Genesis Bank had brought chamber applications to have these matters dismissed for want of prosecution.

Also, no report had been made to the police concerning the alleged fraud.

The applicant was naturally opposed to the upliftment of the bar, arguing that the reasons could not be ventilated in an oral application.

Counsel for the applicant relied on the case of Kudakwashe Nyakambangwe v Jaggers Trador (Private) Limited HH146-03 which drew on HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4ed…, for the considerations that the court takes into account in considering an application for condonation which include:

“The degree of non-compliance; the explanation for it; the importance of the case; the prospects of success; the respondent's interest in the finality of his judgment; the convenience of the court; and the avoidance of unnecessary delay in the administration of justice."

Where a respondent has been barred for failure to files heads of argument on time, Rule 238(2b) of the High Court Rules allows a court to deal with the matter on the merits: see GMB v Muchero 2008 (1) ZLR 216 (S) 216…,.

Counsel for the applicant therefore emphasised, that, no police report had been made against Mr Christopher Mawere, who is supposed to have forged the signatures. He also pointed out the first respondent had admitted to receiving US$94,000 to acquire mining equipment which is the reason why they bonded their property.

He maintained, that, the quest for upliftment of bar is an abuse of court process as the respondents have no case at all.

He also dismissed the argument by the respondents, that, the Sherriff should have proceeded against movable property first maintaining that it is a long standing practice to declare hypothecated property executable: see Meda v Homelink (Pvt) Ltd HB195-11.

His position was that it was unreasonable, under the circumstances, for the respondents not to have filed heads of argument.

Although an application for upliftment of the bar can indeed be made at the hearing; however, whether or not a party will be permitted to file their substantive application for the court's consideration, and for assessment by the other party, is not a given and should not be approached as such.

In my view, in light of the facts of the case, this was not a case where an application could simply be made casually on the date of the hearing without grave prejudice to the other side.

The applicants were seeking eviction and the respondents were well aware of this fact.

When they did not file their heads in accordance with the Rules, they were very much aware that they were barred; only to wait to come to court, on the date of the hearing, to tender an explanation that they were, all along, carrying out investigations to strengthen their case.

Furthermore, no correspondence came from them.

Even when they had gathered the information which they thought would bolster their case, they were still dilatory in seeking to bring it to the attention of the court.

Where an applicant has all the time in the world to make a substantive application for the court to consider, and does not do so, he only has himself to blame if the court then refuses to grant his application for non-compliance with the Rules.

My reasoning, in dismissing the respondents application for upliftment of the bar, is very much in line with the sentiments expressed by MAKONESE J in Ndlovu v Guardforce Invstms (Pvt) Ltd & Ors HB03-14.

He re-emphasized the need for legal practitioners to operate within time limits and in terms of laid down procedures, whose purpose is for litigants to know when they are expected to act.

As he explained, when time limits have not been observed, it is the duty of the practitioner to give a credible and convincing explanation why he failed to act timeously.

He also emphasised, that, the court may only excuse failure to act where the explanation given is credible. Significantly, as he stated, the courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on the litigant.

I declined the application as the explanation as to why the application was being made at the eleventh hour was far from satisfactory.

There appeared to me to be a reckless and deliberate non-compliance with the Rules as the respondent had been aware, from as way back as April 2014, that, they were under an obligation to file heads.

In light of the facts of the matter, it seemed clear to me, that, the applicant would be prejudiced in the main matter and would not be compensated with a suitable order as to costs, largely because, up to the date of this hearing, the respondent had thus far failed to show any valid reasons for objecting to the sale and to the eviction.

I was not convinced, that, the application for upliftment of the bar was not being made with the intention of delaying the realisation of the applicant's claim for eviction.

If indeed a credit worthy report was now available, there was absolutely no reason why it could not have been the basis for making a chamber application for upliftment of the bar before 8 October.

Against the backdrop of the totality of the above facts, the application for upliftment of the bar clearly lacked merit.

The degree of non-compliance with the Rules, in my view, was inexcusable.

The explanation for the non compliance lacked credibility since the respondents did not even proceed to treat the “report” it had now purportedly obtained with the urgency that it deserved by making an application for upliftment of the bar - assuming it bolstered their case.

Having purchased the property, and transfer having been effected, the applicant clearly has an interest in the finality of his judgment.

In light of the above, I was of the view, that, there was no justification for delaying the administration of justice in the applicant's favour.

It was for the above reasons that I granted the order as follows:

1. The respondent, being barred for failure to file heads of argument, the Notice of Opposition is accordingly struck off.

2. The application, by the respondents, for upliftment of bar, is dismissed.

3. The respondents, and all those who claim title through them, be and are hereby ordered to vacate a certain Subdivision A of Lot 16 Block B of Avondale, also known as No.50 Broadlands Rd Emerald Hill, Harare within 48 hours of being served with Writ of Execution.

4. In the event of the respondents failing to abide with paragraph 3, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them.

5. The first and second respondents, jointly and severally, one paying the other to be absolved, be and are hereby ordered to pay costs of suit on an attorney and client scale.

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

The appellant instituted summons at Rusape Magistrate Court claiming $5,000 from the respondent being general damages arising from the alleged unlawful destruction of the appellant's temporary structure constructed at No.7688 without a valid court order as well as for harassing the appellant's wife at the latter's work place without the appellant's consent.

After the issuing out of the summons, the appellant served the respondent with various court processes, and, on 9 April 2019, the appellant filed an application for default judgment.

Unfortunately, on 19 April 2019, the learned magistrate dismissed the application.

Un-amused by the dismissal, the appellant noted an appeal on 16 August 2019 outlining the grounds of appeal as follows:

“1. The respondent failed to plead hence the request for default judgment.

2. The learned magistrate erred to take into cognizance the appellant served the respondent with all the papers including the ones he further requested, but, for the second time, he defaulted to submit his plea.

3. The learned magistrate erred in failing to take cognizance that the appellant had stated, in case No. 2030/17 that the demolition of the temporal structure was illegal and it would attract costs.

4. The learned magistrate erred in failing to take into cognizance, that, the appellant applied for an interdict against the respondent in case 2030/17 and (he), the respondent, went further to demolish the appellant's structure without a court order.

5. The learned magistrate failed to consider, that, the appellant was allowed to erect a temporal structure after he had approached the Housing Director for approval.

6. The learned magistrate erred in failing to take into cognizance that no building plan is required in the Model Building By Laws Part 4 section 39 (1, 2, 3 and 4).

7. The learned magistrate erred in failing to take cognizance that the section she quoted from the respondent's papers does not apply to the contract and structure that the appellant had put up, the section consists of enforcement and prohibition orders.

8. The learned magistrate failed to take into cognizance that the respondent had harassed the appellant's wife without any reason to do so, on the matter she was not aware of.

9. The learned magistrate failed to take into cognizance that it was not the respondent's call to demolish the structure without a court order, thus, no need for the appellant to appeal for case no. 2030/17.”

When the respondent was served with the summons, it entered appearance to defend providing its address of service as 294 Chimurenga Street, Box 414 Rusape - its legal practitioners offices.

The appellant filed a notice to plead, and other subsequent pleadings, not on this given address, but, at 398 Manda Avenue Rusape - the Rusape Town Council's Offices.

The subject notice to plead, dated 28 March 2018, which led to the appellant applying for default judgement, was not served on the respondent's address of service but at the Town Council's physical address.

Order 10(3)(b) of the Magistrates Court (Civil) Rules, 2019 SI11 of 2019 provides as follows:

“(b) Subject to subrule (2), given an address for service within a radius of 15km of the courthouse from which the summons was issued, and;”

The operative clause relating to the issue of address of service is identical to the one which was in SI290 of the Magistrate (Civil) Rules, 1980.

Once a party has notified the Clerk of Court of its address of service, the other party shall serve all proceedings, pleadings, or processes on the chosen address.

Service of process, on any other address, other than the chosen address of service provided by the litigant, in my view, will not be in terms of the Rules and will be a nullity: see Order 7 Rule 5(2)(b) of the Magistrates Court (Civil) Rules, 2019…,.

On 9 April 2018, when the appellant filed a request for default judgment, on the basis that the defendant had been duly served and had not submitted its plea, it was not correct.

The appellant had failed to serve the process on the supplied address of service for the respondent, which was Messrs Chiwanza and Partners Legal practitioners, 294 Chimurenga Street. P.O. Box 414 Rusape.

That was the address of service to be used by the respondent, and that was where the Messenger of Court was to serve the process or pleadings.

The appellant did not follow the procedure in the rules of the court a quo and the application for default was not properly before the court; the appellant's papers were not in order, and the learned magistrate ought to have given directions to the appellant to comply with the rules than to dismiss the application on merits.

In doing so, the learned magistrate misdirected herself.

In an application for default judgement, where the plaintiff is claiming damages, as in casu, the plaintiff has to comply with Order 11(4)(5)(a) of the Magistrates Court (Civil) Rules, 2019 which provides:

“5. The Clerk of Court shall refer to the court any request made for the entry of judgment on a claim for damages; and –

(a) The plaintiff shall furnish to the court evidence, either written or oral, of the nature and extent of the damages suffered by him or her;”

See also matter of Mavheya v Mutangiri and Others 1997 (2) ZLR 462…,.

The order of the court a quo, in dismissing the application, was, in my view, not proper in the sense, that, the appellant's claim was prematurely terminated, and, for certain, the appellant did not know the way forward in the circumstances.

In his mind, he believed that the respondent had failed to file its plea within the time expected of it - albeit the wrong method of service of process.

As already ruled above, the court ought to have given the appellant an opportunity to comply with the Rules and resubmit its application in the event that the respondent continued to be in default of filing its plea or other processes....,.

The appeal succeeds on the reasons outlined herein, and the following order is returned:

1. The appeal is upheld.

2. The matter is remitted to the Magistrate Court for continuation before any magistrate.

3. The plaintiff is granted leave to issue a fresh notice to plead in terms of the Magistrate Court Rules and serve it on the defendant at the registered address of service.

4. Costs to be in the cause.

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

The matter came before me on the unopposed roll on 1 September 2016. I dismissed it on the basis that:

(a) There is no cause of action, therefore, the relief sought is incompetent.

(b) The papers are defective in that they do not comply with Order 32 of the Rules of this court.

After having been subjected to a barrage of letters by the applicant, the contents of which are self explanatory, and which form part of the record of proceedings, this is a formal setting out of the reasons for the dismissal of the application.

The court application filed of record, on 8 July 2016, made reference to five other applications filed before this court: HC11009-12, HC9428-14, HC2826-16, HC1511-16 and HC2622-16.

The draft order…, is a prayer for an order that the applicant be granted his wish to be allowed to pay lobola at his own convenience, on a date to pay that he will request from the inlaws - only if the respondent is a virgin.

The court was asked, further, to order the respondent to stop her part in the “beaming”.

The court was unable to determine, from the founding affidavit, what the cause of action was.

The court was unable to accede to an order that the respondent accept the applicant as a prospective husband; an order that the parents allow the applicant to pay lobola for her hand in marriage at his convenience; an order that she demonstrates that she is still a virgin; or an order that the respondent stops her part of the 'beaming'.

A cause of action is defined as “the facts that entitle a person to sue:” see Oxford Dictionary of Law, 8th ed Southern Law…,.

The cause of action may be a wrongful act, such as trespass, or the harm resulting from a wrongful act, as in negligence.

A reading of the founding affidavit suggests, that, the applicant's cause of action purports to be founded in delict.

A 'delict' is a civil wrong: see Principles of Delict, JONATHAN BURCHELL…,.

In a delictual claim, the plaintiff normally seeks damages as compensation from the defendant for infringement of his or her rights.

There is nothing in the applicant's founding affidavit which shows what civil wrong the respondent committed.

There is nothing in the founding affidavit to justify the relief sought by the applicant, in delict or in any other recognisable cause of action.

The court was not furnished with sufficient information or averments to understand what 'beaming' is.

To order the respondent to stop her part in the 'beaming' without sufficient foundation as to what this 'wrong' is would be incompetent.

It would be incompetent to order 'that the respondent' furnish the applicant with evidence of her virginity or that she agree to be 'lobolaed' by him.

The second aspect of the court's dismissal of the application was that the papers are in shambles and do not comply with the Order 32 procedure.

Order 32 Rule 227 of the High Court Rules sets out the nature and form of all written applications.

No documents were attached to verify the numerous jumbled, garbled, and insensible averments made by the applicant. The court could not make head or tail of the averments. No useful purpose could be served by repeating the averments as they form part of the record, but, a few examples will demonstrate and highlight the embarrassing nature of the averments:

Record p6 - clauses 2.3:

“2. I am…, To ask Mary Gorongoza if I remember well her surname, to clarify about two things: in delict.

3. Mercy must come out clearly officially in court whether or not certain persons have abused her or not. I am mentally suffering or in psychological pain or still in emotional shock or further still mental distress due to her failure to conclusively clarify.”

Paragraph 4 alludes to the applicant's sister, his son, and his Excellency, the President of the Republic of Zimbabwe.

Paragraph 6 alludes to political problems, an independent public enquiry, and 'beaming'.

The founding affidavit contains thirty-four pages of these garbled averments.

Clearly, the application is not properly before the court in terms of the rules of this court. The application is fatally defective and ought to be dismissed. The application stands on nothing. It is a nullity. It has no legal or factual basis. The relief sought is incomprehensible. No cause of action was established in the founding affidavit.

The application is an attempt to stand the law on its head. It cannot succeed.

For these reasons, even though the application was unopposed, it is dismissed.

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

The applicant and his son, Ian Masamba, in HC0051/15 sued the respondent claiming damages for what they termed “professional negligence for mental suffering” in the sum of USD1,200,000.

The applicant further claimed payment of USD1,400,000 for what he termed “defamation libel.”

The respondent excepted to the summons as well as filed a Special Plea.

The matter was determined by MUNANGATI-MANONGWA J who made the following order:

“1. The special pleas raised by the defendant be and is hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

3. The first and second plaintiffs to pay defendant's costs on an attorney–client scale jointly and severally, the one paying the other to be absolved.”

The applicant now approaches this court seeking an order in the following terms:

“1. The order in case no: HC6051/15 be and is hereby set aside/rescinded against both plaintiffs.

2. Ian Farai Masamba be reinstated as the (1st) first plaintiff in case no: HC6051/15 in which he will invest me with a power of attorney in compliancy with High Court Rules book: Rule 5(4) with the caveat that the rules book itself does not reflect rule 5(4) only Form 1 is reflected and indicates as being originated by Rule 5(4).

3. An Independent Committee of Enquiry be hereby instituted within 3 months from the date of the issuing of this order respondent's ZIMSEC to hold an inquiry into this matter and related matters on the basis of cited record numbers found in this record and the others as the records are perused new records for perusal are found up until they are finished at the magistrate's court and high court report its findings including the performance of the magistrates and judges in the matters in terms of competence and bias and report whether or not the president of the country's hands are clean as well as whether or not his father was Malawian sourcing information from him and from wherever else possible so as to immortalize the correct official history as need to verify has arisen because there is the possibility that history could be falsified and enquiry about the beaming.”

The applicant's affidavit is 33 pages.

I have waded through the prolix affidavit and the draft order and have failed to decipher what exactly the applicant seeks from the court.

The record of the matter itself is 268 pages.

Most of the material is irrelevant to the issue at hand.

There is mention somewhere in the founding affidavit that he seeks the setting aside of the judgement in terms of Order 49 Rule 449(1)(b).

Rule 449(1)(b) provides:

“The court or a judge, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, vary any judgement or order -

(a)…,.

(b) In which there is an ambiguity or patent error or omission, but, only to the extent of such ambiguity, error or omission; or

(c)…,.”

The applicant summarises his complaint against the judgement in paragraph 56 of his affidavit where he states the following:

“On the premise that the hon justice Munangati-Manongwa's ruling ignored a filed and served Notice of Intention to Bar and ignored the effect of the Bar and on the premise that she addressed her dismissal ruling against the 2nd plaintiff basing it on a retrieved or entirely deleted Plaintiff's Declaration than base it on the filed and served Amended Plaintiff's Declaration and Notice of Amendment and on the premise that the ruling ignored that the Respondent did not oppose Amendments which are allowed by Order 20 Rule 132 thus the Order granted in case no. HC6051/15 arguably was not incorrectly or arguably was improperly, or irregularly or fraudulently or deceitfully granted.”

What I can pick from the above is that:

(i) The Judge ignored the fact that the defendants were barred.

(ii) She relied, in her ruling, on the plaintiff's declaration and yet they had filed a Notice of Amendment and the amended plaintiff's declaration which was not opposed by the respondent.

The issue regarding the bar of the respondent was not raised before MUNANGATI-MANONGWA J.

The applicant should have raised it as a point in limine before the Court. The Court could not, therefore, grant what had not been prayed for.

As regards the amendments, the court actually commented on them on p6 of the cyclostyled judgement when the Judge said:

“This claim borders on abuse of legal process as the second Plaintiff, on his behalf, and on that of the first Plaintiff, unprocedurally filed numerous voluminous documents at will including amendments to other amendments…,.”

The court did not, therefore, ignore the issue of the amendments. It had regard to them and made a finding on them.

The applicant has therefore not made out a case for the setting aside of the judgement in HC6051 in terms of Rule 449(1)(b).

The relief that he seeks in paragraph 2 and 3 is incomprehensible and meaningless and the court cannot be of assistance to him.

I made the following observations, after examining the law regarding vexatious proceedings, in another matter involving the same applicant, Ignatius Masamba v ZETDC HH699-16, that:

“The proceedings in this matter can safely be described as vexatious. The court must be able to protect and control the procedure and its proceedings to avoid abuse by litigants. It is my view, that, this sort of case where a litigant will in future be required to seek leave before filing and serving other litigants with his or her process. This would be in a bid to prevent abuse of its process and to other litigants from being harassed and being put out of pocket by vexatious litigants.”

The same can be said of the present matter.

In view of the above, I will make the following order:

1. The application is dismissed.

2. The applicant is required to seek leave of this court before he can issue any process out of this court.

3. There will be no order as to costs.

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

A default judgment is a court judgment that is granted in favour of either party when the opposing party fails to respond. It can spell the end of a lawsuit and become a final judgment if the opposing party does not seek to reverse it.However, if the opposing party seeks ...

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

A default judgement is given in favour of the plaintiff where the defendant has not responded to a summons or failed to appear in court.

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

The applicant made an application seeking the following order:“IT IS HEREBY ORDERED THAT:1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a ...

The applicant made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”

The application is opposed by the first respondent, the City of Mutare.

BACKGROUND

On 20 July 2016, Clayhill Trading (Private) Limited entered into an agreement of sale of a piece of land, namely, Stand No.11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, with the applicant and her late husband, Washington Jekanyika.

The purchase price was US$62,000.

Clause 3 of the agreement of sale stipulated the payment plan: US$20,000 was payable against the signing of the agreement; US$20,000 was payable three (3) weeks after the signing of cession papers; the balance of US$22,000 was going to be liquidated through monthly instalments of US$4,000 commencing 30 September 2016.

The preamble to the memorandum of agreement of sale between the seller and buyer provided, that, the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer; however, the seller was responsible for the payment of all cession costs, including the City Council's cession fees and capital gain tax, if any (clause 8 of the agreement of sale).

During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband.

Under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.”

Clause 14 thereto stipulates, that, the purchasers shall demand transfer of the Stand from the seller upon completion on the main building.

The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.

On 24 September 2019, the City of Mutare wrote a letter to the applicant's legal practitioners indicating that the agreement of sale between itself, the applicant, and her husband had been cancelled.

The first respondent alleged in the letter the applicant's late husband, Mr W. Jekanyika had misrepresented to the City Council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale.

As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale.

A lot of correspondences were exchanged between the City Council's legal practitioners and the purchasers lawyers but nothing came out of the correspondences until the applicant approached this court.

Clayhill (Pvt) Ltd had since issued summons against the purchasers claiming an amount of US$28,000 for arrear payments.

It is important to note, that, there is no allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.

The first respondent, in its opposing papers, contends, that, the applicant's application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings.

As already addressed in the foregoing above, the first respondent went on to state, that, the applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development: hence, the agreement of sale between City of Mutare and the applicant and her husband was a nullity, because, at the time it was drafted, the City Council did not hold any rights, interest or title in the Stand; instead, such rights were vested with Clayhill; and, as such, the cancellation of the agreement was above board; and, before the cancellation of that agreement, the applicant's legal practitioners were fully appraised of the whole scenario of the events.

To the respondent, the relief being sought by the applicant has no basis.

The second respondent is an estate of the late Washington Jekanyika. The executor had notified the Registrar of the court that he will abide by the decision of this court.

Both the applicant and first respondent had raised preliminary points in their respective papers; and, I directed the legal practitioners to holistically address the court by commencing with points in limine and then the main issues.

Applicant's point in limine

The applicant, on filing her affidavit, raised a preliminary point to the effect, that, the first respondent's Town Clerk, in filing the opposing affidavit, was not authorised by the Council. Hence, the application should proceed as unopposed.

The applicant amplified her argument by submitting, that, the first respondent's notice of opposition is fatally defective for want of a proper opposing affidavit.

The Town Clerk, Mr Maligwa, did not attach authority which he alleges to have to depose to the affidavit.

Counsel for the applicant, to advance his argument, cited section 136(2) of the Urban Councils Act [Chapter 29:15] which basically provides as follows:

“Functions of Town Clerk

(1) The town clerk shall be responsible for -

(a) The proper administration of the council; and

(b) Managing the operations and property of the council; and

(c) Supervising and controlling the activities of the employees of the council in the course of their employment.

(2) For the purposes of subsection (1),the town clerk, in addition to any other duties that may be assigned to him by the council shall -

(a)…,.

(b) Where so authorised by the council, sign orders, notices, or any document requiring authentication or execution on behalf of the council…,.”

As such, the applicant contended, the Town Clerk was required to produce a resolution on which he relies on to depose to the opposing affidavit. To the applicant, the Town Clerk has no automatic authority to oppose this matter.

The first respondent, in response to this point in limine, submitted, that, the absence of the resolution does not prove that the Town Clerk did not have authority.

The Town Clerk is the Chief Executive Officer of the first respondent and in charge of the entity - including litigation and defending Council.

Counsel for the first respondent went on to cite the cases of Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa HH626-15 (per MATHONSI J…,.) and also the matter of Zimbabwe Open University v Magaramombe and Another.

In summary, the first respondent submitted, that, the averment in the deponent's opposing affidavit is adequate, and, in its view, there was no need to attach the resolution reached by the full Council meeting.

Given the nature of the facts in this application, more particularly, the stance adopted by the first respondent towards the application, the applicant's contention holds firm.

It was incumbent upon the Council to deliberate on the facts of this matter and consider whether there was any basis to oppose the application brought about by the applicant, and also seriously outline the basis of such opposition.

This analysis would be dealt with below on the aspect of costs, but, given the provisions of section 136(2) of the Urban Councils Act, I agree with the applicant's counsel, that, there was need for a special resolution passed by the Council mandating the Town Clerk to depose to an opposing affidavit on its behalf.

At the same time, this court will not lose sight of the fact, that, there is an opposing affidavit before it which affidavit contains material documents that are going to be of a great assistance in the resolution of this application.

It will be in the interests of justice that I will condone the failure to file that resolution by the first respondent and allow the first respondent to be heard on the merits.

The applicant's point in limine, though valid, is dismissed.

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

The first and second plaintiffs in this matter are son and father, respectively, and are self-actors.The plaintiffs issued summons against the defendant claiming damages for what they termed “professional negligence for mental suffering” in the sum of US$1,200,000. In the very summons, the first plaintiff went on to claim against ...

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).The application was filed on 6 October 2021.The applicant intends to appeal against the whole judgment of ...

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

After initially reserving its judgment at the end of the hearing in this matter, the court later allowed the appeal and issued the following order;

“1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

(1) The first respondent and all persons claiming occupation rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claim, Tigress, held under registration number 10098BM and as identified by the second respondent.

(2) Failing such removal, the Sheriff of Zimbabwe be and is hereby authorised and directed to evict the first respondent and all those claiming occupation, rights, title and interest through and under him from mining claim being Tigress number 100098BM as identified by the second respondent.

(3) The first respondent and all those claiming with or through him are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.

(4) The first respondent is ordered to pay the costs of suit on an attorney and client scale.”

The court indicated that full reasons for the judgment would follow in due course. These are they.

This appeal is against the entire decision of the High Court handed down on 31 March 2022 in which the court dismissed the appellant's application for a spoliation order against the respondents.

FACTUAL BACKGROUND

The appellant and the first respondent have engaged in a litany of disputes in the court a quo, all related to their respective entitlements to the mining claims that they operate on. The two mining claims are situate in Insiza District, Matebeleland South and are adjacent to each other. The appellant is the holder of mining claims known as Tigress, while the first respondent has been conducting mining operations on claims known as Lion West 25.

Sometime in 2021, a boundary dispute arose between the appellant and the first respondent.

The former alleged that the latter had encroached onto its mining location and proceeded to mine gold ore, thereby depleting the finite resource on its mine. At the time that the boundary dispute arose, the first respondent had amassed a substantial amount of gold ore which was stockpiled on the part of the appellant's claim that he was accused of encroaching onto.

In disputing the allegations of encroachment onto the appellant's claim, the first respondent insisted that he had been carrying out mining operations on his mining claim, that is Lion West 25, for the past 17 years without interruption and that no encroachment had taken place.

On 8 March 2021, the second respondent (Provincial Mining Director, Matebeleland South) wrote to the parties to the effect that after attending at the disputed claims to ascertain the co-ordinates of the parties mining claims, as ordered by the High Court at the instance of the appellant (HC276/21), his finding was that the first respondent had indeed encroached onto the appellant's mining claim.

The second respondent went on to direct the first respondent to vacate the appellant's claim and revert to his own coordinates.

The latter did not comply, prompting the appellant to later on request the second respondent's intervention.

The second respondent subsequently advised the appellant of his failure to prevail upon the first respondent to vacate the part of the appellant's claim that he had encroached onto. He consequently suggested that the appellant could seek an interdict against the first respondent, from the court a quo, since the court was already seized with the matter.

It is pertinent to note that both the appellant and the first respondent attended at the mining claims together with the second respondent, in compliance with the order of the court.

An interdict sought by the appellant was subsequently granted against the first respondent under case number HC884/21.

This was after the first respondent, who had consented to the provisional order sought against him, failed to oppose the confirmation of the final order interdicting him from further encroaching onto the appellant's claim.

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

The applicant sought an order nullifying the sale of a certain vehicle by the first respondent to the second respondent. At the end of the hearing I granted the order sought in terms of the draft. The order read as follows:“1. The agreement of sale by and between the 1st ...

“1. The agreement of sale by and between the 1^st and 2^nd Respondents in respect of the motor vehicle Nissan March ACP 3268 be and is hereby declared unlawful.

2. Applicant be and is hereby declared the lawful owner of the Nissan March ACP 3268.

3. Respondents jointly and severally shall pay costs of suit.”

I gave the reasons for my decision ex tempore. However, the second respondent has now asked for them in writing.

Here they are.

In December 2012, the first respondent purported to sell the vehicle in question…, to the second respondent. Apparently, it had been a swap deal. For the purchase price, the second respondent had surrendered his own vehicle, also a Nissan March, and had topped it up with cash. At the hearing, there was a conflict as to how exactly the sale had been arranged and what exactly had been the agreed purchase price. But it was common cause that the sale vehicle had belonged to the applicant.

At the time of the purported sale, the applicant had been in Kariba. The sale vehicle had been in Harare. The respondents had also been in Harare. The first respondent had contacted the applicant by phone that he had found a buyer for the sale vehicle. The applicant had arranged with his sister to make the sale vehicle available for inspection by the potential buyer. The buyer was the second respondent. The next thing was that the first respondent had sold the vehicle to the second respondent. The sale document was a crude Agreement in long hand on Kingstons Limited's stationery. It read as follows:

“I, RUZVIDZO KUDZAI, ID 63-1035356 V24, residing at Glennorah, do hereby solemnly and sincerely swear/declare the following:-Sold my Nissan March Reg no. ACP 3268 as an swop and top with a Nissan March Reg ABY 5930 with cash top of USD800 paid USD600 Balance of USD200 to be paid on or before the 15^th of December of 2012.”

The document was signed by the second respondent as “BUYER”; the first respondent as “SELLER” and by two other persons as witnesses.

The first respondent did not file any opposing papers.

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

This is an application for condonation for non-compliance with the Rules of this Court and for an extension of time within which to file and serve a notice of appeal in terms of the same Rules.The respondents oppose the application.FACTUAL BACKGROUNDThe first respondent is a medical aid society registered in ...

FACTUAL BACKGROUND

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is said to be the investment vehicle of the first applicant.

Both respondents are managed by two separate boards of directors.

It is common cause that the applicant was, in terms of his contract of employment, the Chief Executive Officer of the first respondent.

In a judgment handed down by two judges of the Labour Court on 10 March 2017, two awards made in favour of the applicant were set aside and in their place the court substituted an order dismissing the applicant s claims before the arbitrator.

Dissatisfied, the applicant appealed to this Court against that judgment on 1 March 2019.

The notice of appeal reflected that it had been filed pursuant to Rule 29 of the now repealed Supreme Court Rules.

At the hearing of the appeal, the matter was, by consent, struck off the roll for the reason that the appeal should more properly have been noted in terms of the then Supreme Court (Miscellaneous Appeals and References) Rules.

This was on 14 March 2019.

Prior to the above developments, in a practice directive issued as 3/13 by the late former Chief Justice of Zimbabwe, on 29 November 2013, the following requirement was, inter alia, made applicable to all the superior courts of Zimbabwe:

“Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may, on application, and for good cause shown, reinstate the matter, on such terms as he deems fit.”

So far as I am aware, the practice directive, together with a number of others issued at about the same time, were not discussed amongst judges of this Court.

I mention this at this stage because paragraph 5 of the practice directive, which is captured above, has given rise to a major difficulty in the interpretation of that paragraph.

The conundrum faces not just the applicants whose matters are struck off the roll, but also the superior courts to this date.

The extent of the problem is aptly illustrated by the events that unfolded following the striking off of the matter from the roll.

The appeal, having been struck off the roll, on 14 March 2019, the applicant was required, in terms of the practice directive, to rectify the defect within the period of 30 days failing which the matter would be deemed abandoned.

Taking into account weekends and public holidays, the period of thirty (30) days was to lapse on 30 April.

The present application was only filed on 2 May 2019 - one business day late.

That development formed the genesis of the applicant's difficulties in trying to prosecute his appeal against the decision of the Labour Court.

In the application filed on 2 May 2019, the applicant prayed for condonation and extension of time in which to appeal the decision of the Labour Court.

In his founding affidavit, he explained the reasons for the delay.

As regards his prospects of success, he attached a copy of his heads of argument in the matter previously struck off the roll and requested that his prospects of success be determined on the basis of those heads.

In their opposing papers, the respondents took two points in limine.

One of the two points was abandoned at the hearing of the application before me.

The preliminary point that remained related to the propriety of the application for condonation and extension of the time within which to note an appeal.

The respondents averred, that, in terms of paragraph 5 of the Practice Directive, once the applicant failed to rectify, within 30 days, the defects that had led to the striking off of his appeal, his matter was deemed to have been abandoned. He could only apply for reinstatement.

The other submissions made by the respondents, on the length of the delay and the reasons thereof, as well as the prospects of success, are not relevant to the issues that arise for determination in this application.

In his answering affidavit, the applicant also took the preliminary point, that, the deponent to the opposing affidavit, who stated that he was the chairperson of the Board of Directors of the first respondent, was not authorised to represent both respondents as no resolution to that effect had been attached.

The applicant submitted, that, in the absence of such authorisation, the application was unopposed....,.

On the basis of the submissions made by the parties, the first issue that falls for determination is whether the application for condonation and extension is properly before the court, regard being had to paragraph 5 of the Practice Directive.

If the application is not properly before this Court, then, that would be the end of the matter and the application would stand to be struck off the roll.

In the event, however, that the application for condonation and extension of time in which to appeal is found to be properly before the court, the issue that would arise is whether, in the absence of a Board resolution by the respondents, authorising the deponent to act on its behalf, the opposing affidavit filed by the deponent is properly before this Court.

If not, then, the matter would be regarded as unopposed. If it is found that it is properly before the court, then, the merits of the application would then require determination.

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

This chamber application was placed before me in terms of Rule 5 of the Supreme Court Rules 1964. Although it was unopposed, it raised an issue concerning the interpretation of Practice Directive 3/13.BACKGROUNDThe appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It ...

BACKGROUND

The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with Rule 4(2) and Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear ex facie the judgment that it had been hand down on 29 June 2012. However, the Notice of Appeal stated that it was handed down on 29 May 2012.

Secondly, a copy of the Notice of Appeal was served on the Registrar of the Labour Court contrary to the order by GOWORA JA.

The order granted by GOWORA JA stated as follows:

“1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No. LC/H/196/2012 handed down on 29 June 2012.

2. The Notice of Appeal shall be noted within fourteen (14) days of the date of this order.

3. There be no order as to costs.”

It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within fourteen days of the grant of the order.

The order was granted on 28 January 2014. It was only filed with the Registrar of the Labour Court on 28 February 2014 - a month later.

WHETHER THE APPLICATION IS PROPER

Following the decision to strike off the appeal, the applicant filed this chamber application seeking to reinstate the appeal.

The applicant stated, in his founding affidavit, that, the application was being made in terms of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 as read with Practice Directive 3/13.

In support of the application, the applicant's legal practitioner conceded, that, there was an error on the Notice of Appeal since the date the judgment had been delivered was 29 June 2012 and not 29 May 2012. He however sought to explain the error by stating, that, it was a genuine mistake on the part of the legal practitioner dealing with the matter.

He further explained, that, the failure to serve the Registrar of the Labour Court with the notice of appeal within the time specified in the order was due to the fact, that, the Labour Court registrar had refused to issue out any court process in the absence of the record of proceedings.

The notice of appeal was only accepted on 28 February 2014 - after the record had been located.

He therefore submitted, that, the delay in the service of the notice of appeal to the Labour Court was occasioned by circumstances beyond the control of the applicant.

It was his submission, that, since no prejudice had been occasioned to the respondent by his failure to comply with the rules of the court, the application should be granted.

It however seems to me, that, the applicant has filed a wrong application.

Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity.

This position has been stated in a number of decisions of this Court.

The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) where KORSAH JA stated as follows…,.:

“…, a Notice of Appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll…,.”

INTERPRETATION OF PRACTICE DIRECTION 3/13

It was the applicant's contention, that, the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013.

In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck off the roll:

“Struck off the Roll

3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.

It seems to me, that, a proper interpretation of paragraph 5 of Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules.

He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned.

It seems to me, that, the restriction on the period within which to rectify the defect was included in the Practice Directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files.

Thus, a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days.

However, an application for reinstatement is not the appropriate remedy.

This position is confirmed by the case of Hattingh v Pienaar 1977 (2) SA 182 (0) where the court had occasion to deal with a defective compliance of the rules, such as in the present matter. The court held as follows:

“…, a fatally defective compliance with the rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

I respectfully agree with this view.

The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll.

The applicant's remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of thirty days provided for in the Practice Directive.

DISPOSITION

In the result, the matter is struck off the roll with no order as to costs.

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

This is a chamber application in which the applicant seeks condonation for failure to comply with Rule 38(1)(a) of the Supreme Court Rules 2018 and for extension of time within which to file and serve a notice of appeal.The application is opposed.FACTUAL BACKGROUNDThe background to the matter is that on ...

prev 1 2 3 next

Back Main menu

Law Portal
Zimbabwe

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach, Unopposed Suits & Pleadings on Record

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

Categories

Law Portal Zimbabwe

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach, Unopposed Suits & Pleadings on Record

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE Ruled By: TSANGA J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL Ruled By: MWAYERA J and MUZENDA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA Ruled By: CHIGUMBA J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC Ruled By: MAKONI J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO Ruled By: MUREMBA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA Ruled By: MATANDA-MOYO J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika) Ruled By: MUZENDA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC Ruled By: MUNANGATI-MANONGWA J

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

Appealed SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA Ruled By: MAFUSIRE J

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD Ruled By: OMERJEE AJA

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS Ruled By: GARWE JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO Ruled By: GUVAVA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS Ruled By: MAVANGIRA JA

Categories

Your Donation.

Law Portal
Zimbabwe

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH188-17 : BEN MUNDANGEPFUPFU and ALBAN MUNDANGEPFUPFU vs INNOCENT CHISEPO
Ruled By: MUREMBA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

SC31-12 : ROBERT DOMBODZVUKU vs CMED (PVT) LTD
Ruled By: OMERJEE AJA

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA