NDOU J: Before
dealing with these applications I wish to record my apology for the delay in
finalization of these matters. Although
some of the cross reference files were misplaced for a period of time, the
delay is unacceptable and I shoulder some of the blame for not using my notes
to reconstruct the record of proceedings when the problem was highlighted. This is the route I have finally decided to
follow in order to bring the matter to finality. At least now, save for one, all the files and
cross-reference files have been placed before me.
Coming back to the matters, the
parties made submissions in respect of both matters under HC 234/08 and HC
1388/08. These matters were
consolidated. The understanding is that
if on the one hand HC 234/08 is ruled in favour of the applicant, there would
be no need to deal with the matter under HC 1388/08. If on the other hand, the application under
HC 234/08 is dismissed, only then will I be required to determine the merits of
the application under HC 1388/08. I have
also heard oral submissions in respect of the latter matter.
(1) HC 234/08
This is an application for dismissal for want of
prosecution. The salient facts are the
following. The applicant, on 27 November
2007, instituted a court application against the respondents. On 12 December 2007, the respondents filed a
notice of opposition accompanied by opposing papers. In terms of Order 32 Rule 236(3)(b) of the
High Court Rules 1971 the applicant should have filed an answering affidavit or
alternatively should have taken steps to ensure that the matter was set down
for hearing within one month from the date that the opposing papers were
filed. This application was filed on 13
January 2008. The point in limine raised is whether this matter
was prematurely set down i.e. before the lapse of the one month stated in the
rules.
In terms of section 33 (6) (c) of
the Interpretation Act [Chapter 1:10] a month is as it stands in the calendar
e.g. 1 December to 31 December 2008. In
the circumstances, no month begins from the middle of the month and end in the
middle of another. A calendar month runs
from the beginning of a month to an end of that month.
Accordingly, this application was
prematurely filed. On that basis alone I
dismiss the application with costs on a legal practitioner and client scale.
(2) HC 1388/08
This is an application for rescission of the judgment of this
court granted in default of the respondents under HC 2507/07. There is a point in limine raised that the application for rescission was made out
of time and therefore the party applying must first obtain condonation by this
court in terms of Order 9 Rule 63 of the Rules.
Without such condonation it is argued, that this application is fatally
flawed and should be dismissed.
Respondent relied on the following cases Sibanda v Ntini 2002 (1)
ZLR 264 (S); Viking Woodwork (Pvt) Ltd
v Blue Bells Enterprises (Pvt) Ltd
1988 (2) ZLR 249 (S) and Highline Motor
Spares (1933) (Pvt) Ltd & Ors
v Zimbabwe Corporation Ltd 2002 (1)
ZLR 514 (S). (See also Theunissen v Payne 1940 TPD 680 at 685).
The facts reveal that the respondent obtained the order in question
outside the knowledge of the applicant.
The order was served on the applicants on 26 June 2008. The applicants became aware of the order on
that date. On 4 July 2008, applicants filed
this application. Only six (6) days
passed from the date applicants became aware of the judgment to the date that
this application was filed. There is,
therefore, no merit in the point in
limine raised and it is dismissed – see Rule 63 (1) which provides –
“(1) A
party against whom judgment has been given in default …, may make a court
application, not later than one month after he has had knowledge of the
judgment, …” (Emphasis added)
The facts of this
matter are the following. On 21
November, 2008 respondent instituted a court application under case number HC
2507/07 against the applicants seeking the following relief:
“1. The
applicant's right of refusal entrenched on the agreement of lease dated 30
September 2002 between the applicant and the 1st respondent be and
is hereby upheld or declared binding as between the parties.
2. The
purported agreement of sale over stand number 9 Preston Street, Belmont,
Bulawayo entered on or around 6 October 2006 be and is hereby declared null and
void and is set aside.
3. The
applicant be and is hereby directed within 30 days to offer stand number 9
Preston Road, Belmont, Bulawayo to the applicant on the same terms and
conditions as those to 3rd respondent on or about 6 October
2006. An order that the respondent
jointly and severally sign transfer papers at the Registrar of Deeds offices
for the transfer of stand number 9 Preston Street, Belmont, Bulawayo within 30
days of granting of this order, failing which the Deputy Sheriff, Bulawayo be
and is hereby directed to sign all transfer papers or all documents necessary
to effect transfer to the applicant.
4. An
order that the respondents jointly and severally cease to disturb the
applicants, use, possession and access to stand number 9 Preston Street,
Belmont, Bulawayo,
5. An
order that the respondents and the others to be absolved to pay costs of suit
on an attorney-client scale.”
The application
was properly served. On 12 December 2007
the applicants filed opposing papers, which were served on the respondent's legal
practitioners. On 31 January 2008
following the failure by respondent to either file an answering affidavit or to
set the matter down for hearing, applicants filed a chamber application in
terms of Order 32 Rule 236 (3)(b) of the High Court Rules, for dismissal of the
application for want of prosecution. The
respondent filed opposing papers under case number HC 234/08 on 8 February
2008. On the same day, respondent filed
its heads of argument in respect of case number HC 2507/07. The applicants filed an answering affidavit
in case number 234/08 and applied for a date of hearing. In the interim, unbeknown to applicants,
respondent after filing heads of argument aforesaid, proceeded to apply through
the chamber book to have the matter in case number HC 2507/07 dealt with as
unopposed because the applicants had not filed their heads of argument. The chamber application by which the
respondent applied for leave to enroll the matter as an unopposed matter was
granted by this court on 5 March 2008 under case number HC 535/08. This record was missing from the Registrar's
office at time of this application. As
alluded to above, that chamber application under case number HC 535/08 was not
served on the applicants. On 8 May 2008,
respondent enrolled case number HC 2507/07 as an unopposed matter, and was able
in the circumstances described above to secure a default judgment. Having obtained the default judgment,
respondent did not advise the applicants of that judgment. The respondent disclosed the existence of
this order through some fortuitous circumstances in another matter between the
parties under case number HC 156/07.
The applicants now
apply for an order rescinding the order under case number HC 2507/07 and the
application is opposed by the respondent.
It is trite that the factors which court takes into account in such
applications are:
(a)
the
degree of non-compliance with the Rules;
(b)
the
explanation therefor
(c)
prospects
of success on the merits
(d)
the
importance of the case
(e)
the
convenience of the court, and
(f)
the
avoidance of unnecessary delay in the administration of justice – Bishi v Secretary for Education 1989 (2) ZLR 240 (H) at 243B-C; V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H)
and Challenge Auto (Pvt) Ltd & Ors
v Standard Chartered Bank Zimbabwe Ltd
2003 (1) ZLR 17 (H) at 19.
In Songare v Olivine Industries (Pvt) Ltd 1988 (2)
ZLR 210 (S) at 213A-B, McNALLY JA stated-
“One is naturally reluctant to reach a decision which would
result in the giving of judgment against a person without his being heard, when
he protests that he has a valid defence.”
The impression must not be gained that the Rules may be
flouted with impunity. A reason for the
delay must be given and it must be an acceptable reason. As alluded to above, the applicants acted as
soon as they became aware of the existence of the default judgment. The explanation for the default is that the
application under HC 535/08 was not served on the applicants. When the applicant brought this issue of
non-service of the application in case number HC 535/08, the file disappeared
from the Registrar's office. This is an important case as it involves immovable
property. It would not be in the
interest of justice for the transfer of such immovable property to be based on
legal technicality in the face of the missing file case number HC 535/08 at the
time of application. There is a bona
fide explanation for the default.
There seems to be prospects of
success on the merits in that 1st applicant in casu, did not sell the property in question. Only shares in shares in the 1st
applicants were transferred by previous shareholders to new shareholders. There is an arguable case on whether this
constitutes the transfer of the immovable thus granting the respondent the
cause of action. Taking into account all
the above I am persuaded that the applicants made a case for rescission.
Accordingly, the order granted by
this court in case number HC 2507/07 be and is hereby rescinded with costs on
the legal practitioner and client scale.
Cheda & Partners, applicant's legal practitioners in
case number HC 234/08 and respondent's legal practitioners in case number HC
1388/08
Messrs Job Sibanda & Associates,
respondents' legal practitioners in case number HC 234/08 and applicants' legal
practitioners in case number HC 1388/08
