MATHONSI J: This matter has a checkered history dating
back more than 6 years to April 2005.
Since then no less than 6 court processes have been issued out of this
court involving the same parties. The
parties have been to the Supreme Court and back but have regrettably come
nowhere near resolving the dispute between them.
The
genesis of the matter is that about 20 April 2005 a decision was taken to
remove first respondent from the positions he held in the church namely being
the chairman of the church board and Southern African overseer of the Apostolic
Faith Mission of Portland, Oregon as well as the pastor of the Apostolic Faith
Church in Bulawayo, Zimbabwe. A decision
was also taken to appoint the first applicant as his replacement. When that was communicated to the first
Respondent he resisted the decisions resulting in him filing an urgent
application under Case No. HC 707/05 and
obtaining interim relief allowing him to remain Southern African overseer and
pastor for the Bulawayo church pending the finalisation of the dispute. The
confirmation of the provisional order granted by Ndou J on 19 May 2005 was
opposed and it was subsequently discharged.
On
30 June 2005 the first respondent filed a court application for the review of
the decision to remove him from his post aforesaid and the appointment of the
first applicant in his stead. That
application was served on 1 July 2005 giving the respondents in that matter 10
days thereafter to file opposition. They
did not.
The
papers before me suggest that about the same time the parties engaged each
other in out of court deliberations aimed at resolving the dispute among
themselves. During those deliberations
it was the understanding between them that court action would be held in
abeyance. It has not been disclosed what
the full terms of that moratorium in litigation was and what was to become of
the court application which had already been filed.
In
fact the closest one gets to the understanding between the parties is what is
contained in the last paragraph of a letter written by Musunga and Associates, then representing the applicants, addressed
to Cheda and Partners for the
respondents on 26 July 2005. In that
letter, after addressing a number of issues the parties were discussing, Musunga and Associates concluded by
saying;
“As
agreed earlier all court litigation remain suspended until the round table
conference is convened and completed.”
It
is not apparent from the papers whether that round table conference was ever
convened and when it was convened. What
is clear however is that the applicants did not do anything at all about the
court application that had been served upon them on 1 July 2005 until it was
set down on the unopposed roll for 24 January 2008 about 2 and a half years later. Whereupon Ms D Vundla representing applicants, appeared to seek a postponement
of the matter.
When
the matter came up again on 7th February 2008, the legal
practitioner representing the applicants was again in attendance although no
documents had been filed for the applicants either to oppose the application or
to seek an extension of time considering that they had been barred more than 2
years earlier. One gains some insight
into the attitude of the applicants towards the matter at the time from a
letter written to the Assistant Registrar by Musunga and Associates on 6 February 2008 which reads in part as
follows:
“RE: REV. R. J. SIBANDA AND ANOTHER
VS REV D. L. BALTZELI DARREL, D. LEE AND TWO OTHERS: HCB 1170/05
We
refer to the above matter.
We
note with concern that the Applicants through their legal practitioners are
attempting to obtain an order as unopposed in this matter.
We
understand that the Honourable Justice Ndou recused himself and handed over the
matter to his Lordship Justice Bere. We
request herewith that any determination of this matter as unopposed be stayed
in the interim for the following reasons:
(1) When Musunga and Associates assumed agency on
behalf of respondents sometime in 2005, it was specifically agreed between
ourselves and applicants through their legal practitioners to hold this matter
amongst many others in abeyance. We
attach our letter to Cheda and Partners
dated 26th July 2005. Our
clients should have been served with the application round about the same
time. Thus of course this matter was
shelved from thereon.
(2) Secondly, the
applicant's action in setting this matter down is really an ambush. They never advised us that they were now
taking that course nor did they invite us to file opposing papers.
(3) ----.
(4) When we were told by our
correspondents that this matter was enrolled as unopposed, we erroneously
thought matter HCB 2937/07 was the one enrolled. Thus we filed matter HCB 227/08 on the 31st
January 2008.
We
advise that we intend to oppose the matter enrolled but because of the
complexities thereto we need more time to prepare the papers and make an
application for extension of time within which to file the opposition. We undertake to file our papers on or before
the 21st of February 2008.
We
have addressed our concerns to the court simply as an advice of the fact that
the matter is improperly before the court and would and will be opposed as
matter HCB 707/05 and ancillary matters reflect.
We
hope our letter will be on record.
Yours
faithfully
(signed)
Musunga
and Associates.”
Bere J was not swayed by the request
and despite the appearance of Ms Vundla
in motion court, he granted the order.
It is that order of 7 February 2008 which applicants seek to have
rescinded in this application.
Mr Nyandoro for applicants argued that the applicants have given a
reasonable explanation for their failure to file opposition timeously in that
when the parties agreed to hold litigation in abeyance it was on the
understanding that should negotiations fail and litigation was to be resumed,
that would be on notice to the other party.
He further argued that when the respondents sought default judgment they
did not give notice to the applicants and that the applicants only got to know
about the existence of the judgment when they attempted to evict the first
respondent from the church premises he occupied.
When Mr Nyandoro's attention was drawn to the letter written by the legal
practitioners representing the applicants which is quoted above, he could only
state that he was unaware how Musunga and
Partners got to write that letter.
He could not reconcile the fact that the applicants were represented by
Ms D. Vundla in court when the order
was made to his earlier submission that the applicants were not aware of the
existence of the order.
I have already stated that no
attempt has been made by the applicants to shade some light as to when the moritorium
in litigation was to take effect and when it was to end. According to the letter from their then legal
practitioners which they rely upon in advancing the point that they could not
file their papers in time because of an understanding between the parties,
litigation was only suspended “until the round table conference is convened and
completed.” The applicants have not
taken the court into confidence as to the timing of this event.
What is common cause however is that
negotiations between the parties failed.
When this happened the applicants were required to take steps to oppose
the application. They did not. It is them who had the obligation to put
their house in order.
Rule 63 of the High Court of
Zimbabwe Rules, 1971 provides:
“(1) A
party against whom judgment had been given in default, whether under these
rules
or under any other law, may make a court application not later than one month
after he has had knowledge of the judgment; for the judgment to be set aside.
(2) If the court is
satisfied on an application in terms of subrule (1) that there is good and
sufficient cause to do so, the court may set aside the judgment concerned and
give leave to the defendant to defend or to the plaintiff to prosecute his
action, on such terms as to costs and otherwise as the court considers just.”
It would appear that the Supreme
Court has now resolved the controversy concerning the interpretation of subrule
(1) arising out of the seemingly contradictory interpretation of Rule 63(1) in Sibanda v Ntini 2002(1) ZLR 254 (S) and Viking Woodwork (Pvt) Ltd v Blue Bells
Enterprises (Pvt) Ltd 1998 (2) ZLR 249.
In the latter case SANDURA J A had
concluded that a defendant against whom a judgment has been granted in default
has a period of one month from the time he becomes aware of the judgment within
which to file an application for rescission of judgment failing which he must
first make an application for condonation of the late filing of the
application.
In Sibanda v Ntini (supra) MALABA J A (as he then was)
interpreted Rule 63(1) to mean that a person against whom judgment has been
entered in default must make the application within one month which is to say
must file and set down the application within one month failing which he has to
seek condonation.
When this matter was heard by Cheda
J, he followed the reasoning in Sibanda v
Ntini supra and ruled that the applicants were out of time having failed
to file and set the matter down within the one month period. He then dismissed the application as no
condonation had been sought. On appeal
the full bench of the Supreme Court, overturned the judgment of Cheda J and
remitted the matter to this court for the purpose of determining the merits of
the application. While I have not had
the benefit of a full judgment of the Supreme Court, the order made suggests an
acceptance that the proper interpretation of Rule 63(1) is that an applicant
must file the rescission of judgment application within one month. Where that
has been done there is no need for condonation if the application is not heard
within one month.
Subrule (2) of Rule 63 was
interpreted in Stockill v Grifiths
1992(1) ZLR 172 (s) at 173 D-F as follows;
“The
factors which a court will take into account in determining whether an
applicant for rescission has discharged the onus of proving 'good and
sufficient cause', as required to be shown by rule 63 of the High Court of
Zimbabwe Rules 1971, are well established.
They have been discussed and applied in many decided cases in this
country. See for instance, Barclays Bank of Zimbabwe Ltd v CC
International (Pvt) Ltd S -16-86 (not yet reported); Roland and Another v McDonnell 1986 (2) ZLR 216(s) at 226 E-H; Songore v Olivine Industries (Pvt) Ltd
1988 (2) ZLR 210 (s) at 211 C-F. They
are;
(i) the reasonableness of the applicant's
explanation for the default.
(ii) the bona fides of the
application to rescind the judgment; and
(iii) the bona fides of the
defence on the merits of the case which carries some prospects of success.
These
factors must be considered not only individually but in conjunction with one
another and with the application as a whole.”
I have already canvassed the
explanation given for the applicant's failure to act timeously which falls
short of being reasonable regard being had to the fact that the applicants
waited 2 ½ years before filing their opposition, did not do anything about the
automatic bar operating against them and yet they have not even explained what
happened to the round table conference for which litigation was suspended. If we assume that the conference in question
did take place at some stage, they were obliged to quickly take steps to oppose
the application the moment that conference failed to yield anything.
On the other hand, if the conference
never took place it would be unreasonable for applicants to say that for 2 and
a half years they were still waiting for the conference to materialise. It is also useful to note that the parties
had long resumed litigation against each other as shown by the litigation
instituted in both this court and the Supreme Court. Therefore applicants cannot be heard to say
that litigation was still suspended.
I am not persuaded that even on the
merits the applicants would have sustained a meaningful contest. In that regard I am indebted to Ndou J who
had already made findings in The
Apostolic Faith Mission of Portland, Oregon (Southern African Headquarters) Inc
and Another v Rev Dwight L. Baltzell and Others HB 48/05 who adverted to
the failure to comply with the provisions of the church's constitution and the
rules of natural justice, in particular, the audi alteram partem
rule in removing the first respondent from office.
In considering the merits of the
applicants' defence the court must be satisfied that they have tendered a
defence which on the face of it cannot be rejected out of hand and warrants
investigation Mdokwani v Shoniwa
1992(1) ZLR 269(S) at 274C. The
applicants are incapacitated by the fact that they have not set out fully a
defence on the merits of the application having busied themselves with
procedural issues they have not even articulated with sufficient clarity.
Taking into account the factors set
out in Stockill v Griffiths (supra)
individually and in conjunction with one another, I am unable to say that the
applicants have discharged the onus of proving 'good and sufficient cause' for
the rescission of the judgment entered on 7 February 2008.
In the result the application for
rescission of judgment is dismissed with costs.
Musunga and Associates, applicants' legal practitioners
Cheda and partners,
respondents' legal practitioners
