In
casu, the appellant`s legal representative was barred from making
submissions before the court a quo by virtue of his failure to
timeously file heads of argument. As a result, the judgment was
granted in default.
The
question of what is meant by “default” was considered in
Katritsis v De Macedo 1966 (1) SA 613 (A)…, as follows:
“It
is clear from the authorities that the default in regard to a
defendant is not confined to his failure to file the necessary
documents required by the Rules in opposition to the claim against
him, or to appear when the case is called, but comprises also failure
to attend Court during the hearing of the matter.”
In
the above case, the court, in quoting, VOET, also emphasised that a
defendant who is present, but does not make a defence, is deemed to
be absent. It held at 618D-E:
“Voet,
2.11.11., makes it even clearer. I quote from Gane's translation:
'Moreover,
not only is he who does not attend at all on the day fixed to be
accounted a dallier and defaulter, but also he who does indeed attend
but does not take in hand the business for the taking in hand of
which the day had been appointed. For instance, a plaintiff appears
and makes no claim: or a defendant does not challenge the plaintiff's
claim when he should do so. He who, though present, makes no defence
is surely reckoned in the position of one who is not there; and he
who, when called upon, does not plead is deemed to have been futile
and is expressly classed as contumacious.'”…,.
It
therefore becomes apparent that the appellant, because of his failure
to file heads of argument, was not before the court a quo and could
not address it. In the circumstances, the court properly entered a
default judgment against him.
Having
determined that the judgment which was handed down by the court a quo
was a default judgment, the question that obtains is whether the
appellant could properly appeal against it.
At
law, one cannot appeal against a default judgment. Rather, the proper
procedure is for the aggrieved party to seek rescission of the
judgment.
This
position was laid down in Sibanda and Ors v Nkayi Rural District
Council 1999 (1) ZLR 32 (S).
In that case, the applicants in an
application for rescission of a default judgment sent their legal
counsel to appear on the scheduled hearing date, with instructions
not to prosecute the application but to seek a postponement. The
court turned down the request for postponement and proceeded to
dismiss the application. The applicants noted an appeal against that
decision. At p 33E-F the court held as follows:
“The
present appeal is therefore against the order of 23 May 1997
dismissing the application for rescission of the order made on 8
November 1996.
That
order, of 23 May 1997, as I understand it, was effectively a default
judgment. The practitioner who appeared for the appellants presented
no submissions on the merits. There were no reasons given for
judgment. Once the postponement was refused, the appellants were
effectively in default. Procedurally, therefore, the appellants
should have sought a rescission of the default judgment of 23 May
rather than appeal against it.
On
this ground alone, the appeal must fail.”
In
Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S) the lower court, in granting
a default judgment, had proceeded to give reasons thereof. In
upholding the nature of the default judgment notwithstanding the
reasons given by the court a quo, the Court, per GWAUNZA JA…, held
as follows at 375B-C:
“Counsel
for the respondent contends, correctly, that a default judgment can
only be set aside by a successful application for rescission of the
judgment under the rules of the relevant court. The application must
be made by the defaulting party himself, as indicated by the
expression 'purging his default'. It follows that, in casu, the
appellant's default remained un-purged even as the learned judge a
quo considered the merits of the matter and gave reasons for his
judgment. By virtue of Rule 62, the learned judge a quo could simply
have 'absolved' the respondent from the application, that is,
dismissed it, as long as he was not considering postponing the
application or making any other order. The consideration by the judge
a quo of the merits of the case, and the giving of his reasons for
judgment, therefore had no effect on the status of the judgment
given, which remained that of a default judgment.”
More
recently, the position was fortified by BHUNU JA in Guoxing Gong v
Mayor Logistics (Pvt) Ltd and Anor SC02-17…, where he re-iterated
the position in the following words:
“It
is trite that, save in special circumstances which do not concern us
here, no appeal lies to this court against a default judgment which
is normally reversed by rescission of judgment or a declaration of
nullity. It therefore follows that, in the absence of special
circumstances, no valid ground of appeal can be laid at the door of
this court concerning the propriety or otherwise of a default
judgment. Whether or not there was non-joinder or any other
irregularity pertaining to the default judgment, that is a complaint
to be laid at the court a quo's door and not this court. There
being no special circumstances pleaded in this case, this court will
not entertain any argument calculated to impugn the validity of the
default judgment at hand.”
The
reason why an Appellate Court cannot set aside a default judgment on
appeal is that the merits of the dispute between the parties will not
have been conclusively determined. This is in the sense that the
default judgment is susceptible to rescission at the instance of an
aggrieved party. An Appellate Court cannot make a pronouncement upon
it.
As
such, it is for the trial court to make a determination of the
dispute as a court of first instance.
In
June Chung v Shanique Cunningham [2017] JMCA Civ 22 the Jamaican
Court of Appeal, per P WILLIAMS JA, held the following…,:
“[27]
Given the main thrust of the submissions made on behalf of the
appellant in this regard, it is best to bear in mind the fact that
the entering of a default judgment is, in the majority of cases, an
administrative process without any real determination of the claim.
While the default judgment remains unchallenged or where challenges
to it have not been successfully made, it is to be properly
considered final on the issues of liability as far as a claimant can
then move to have his damages assessed, and the issue of liability
cannot then be raised.
[28]
The principle which underlies the jurisdiction for setting aside a
default judgment has been long established as pronounced in the case
of Evans v Bartlam [1937] AC 473. LORD ATKIN at page 480 stated:
'The
principle obviously is that, unless and until the court has
pronounced a judgment upon the merits or by consent, it is to have
the power to revoke the expression of its cohesive power where that
has been obtained only by a failure to follow any of the rules of
procedure.'”
By
parity of reasoning, where a default judgment has not been challenged
or has been unsuccessfully challenged, it remains extant and binding.
The court seized with the jurisdiction to rescind such a default
judgment is the court which granted the judgment.
In
casu, it is not in dispute that the appellant subsequently lost the
benefit of legal representation and that he made efforts to rescind
the default judgment that was granted against him. However, the
efforts came to nought and the default judgment, not having been set
aside, remained extant.
Having found that the default judgment is
extant and that no appeal can lie against it, it was for this reason
that the Court found that the appeal was improperly before the Court
and consequently struck it off the roll.
