The applicants herein seek the
rescission of a judgment granted against them in default on 14 June 2010 as a
result of their failure to attend a pre-trial conference set down before
MTSHIYA J.
The background to the dispute is
as follows:
On 1 January 2009 the first
applicant and the respondent concluded an agreement for the lease by the first
applicant of the respondent's premises, specifically, Third Floor, Batanai
Gardens, situate in Jason Moyo Avenue, Harare. The agreed rental was $1,541=94
per month and the first applicant also agreed to pay operating costs.
It is common cause that a problem
arose between the first applicant and the respondent in relation to the payment
of rentals and operating costs. Summons was issued against both applicants and
served on the second applicant on 18 January 2009. The second applicant entered
an appearance to defend for both but was subsequently advised by the
respondent's legal practitioners of the defect in the appearance entered on
behalf of the first applicant. He engaged legal practitioners who filed an
appearance out of time. An attempt to have the automatic bar operating against
the first applicant was dismissed by this court. The first applicant, had,
however, gone on to file a plea which pleading is of no effect due to the bar.
The matter had, however,
proceeded to the pre-trial stage. This pre-trial conference was set down before
MTSHIYA J in chambers on 14 June 2010. The second applicant asserts, in his
founding affidavit, that neither he nor the first applicant were aware of the
date of set down.
The notice of set down was served
at the offices of the legal practitioners' then acting for the applicants. The
second applicant has attached affidavits from Thodhlanga and one I. Mandi.
Nothing much turns on the affidavit of Thodhlanga. I. Mandi is employed as a
receptionist by Phiri & Associates, a firm of legal practitioners which
shares the reception area with Thodhlanga & Associates, the applicants'
former legal practitioners. He confirms having received the Notice of Set down
for the pre-trial conference of 14 June 2010. He states that at the time the
receptionist for Thodhlanga & Associates was not at her desk but he had
placed the notice on her desk, directly in front of her chair so that she would
see it the minute she walked in. She was not called upon to depose to an affidavit
as she is the only person who can state what happened to the notice after it
was received. There is, in my view, evidence that the applicants' legal
practitioners were negligent.
Should this court, however, be
persuaded to accept the explanation of the default being advanced by the
applicants?
In S v McNab 1986 (2) ZLR (S)
DUMBUTSHENA CJ considered that a party should not escape punishment from the
consequence that befall him as a result of the negligence of his client. The
learned CHIEF JUSTICE had this to say -
“In
my view, clients should, in such cases, suffer for the negligence of their
legal practitioners. I share the view expressed by STEYN CJ in Saloojee &
Anor NNO v Minister of Community Development supra at 141 C-E when he said:
'There
is a limit beyond which a litigant cannot escape the result of his attorney's
lack of diligence or the insufficiency of the explanation tendered. To hold
otherwise might have a disastrous effect upon the observance of the Rules of
this Court. Considerations ad misericordiam should not be allowed to become an
invitation to laxity. In fact, this court has lately been burdened with an
undue and increasing number of applications for condonation in which the
failure to comply with the Rules of this Court was due to neglect on the part
of the attorney. The attorney, after all, is the representative whom the
litigant has chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant should be
absolved from the normal consequences of such a relationship, no matter what
the circumstances of the failure are. (Cf Hepworths Ltd v Thornloe &
Clarkson Ltd 1922 TPD 336; Kingsborough Town Council v Thirlwell & Anor
1957 (4) SA 533 (N).)'
I
have dwelt at length on this point because it is my opinion that laxity on the
part of the court in dealing with non-observance of the Rules will encourage
some legal practitioners to disregard the Rules of Court to the detriment of
the good administration of justice.”
I. Mandi's affidavit puts the
blame squarely at the door of Thodhlanga & Associates. The notice was on
the receptionist's desk in such a way that she could not have failed to see it.
The question that has to be answered by the applicants is; what happened to the
Notice? They have not found it necessary to answer this question and yet the
answer thereto, in my view, would be the deciding factor as to whether or not
the explanation is reasonable…,.
I turn next to the bona fides of
the application for rescission of judgment.
The first applicant concedes that
it is barred from proffering a defence. As regards the second applicant, his
contention is that the order does not reflect that the first applicant had
vacated the premises on 26 February 2010 - which is conceded by the respondent
in a letter dated 3 March 2010. Despite this order sought by the respondent and
granted on 25 August 2010 the applicants are ordered to pay holding over
damages, albeit from 29 September 2009, collection commission and costs on a
legal practitioner client scale. The respondent's legal practitioners should
have ensured that their claim, as presented to the court at the time judgment
was sought, reflected the correct position between the parties. The order
granted as at 25 August 2009 clearly was out of sync with the factual position.
The order also required the first applicant to pay operating costs from 29
September 2009 to date of ejectment. This was not correct.
The
respondent has attached to its papers certain documents which are supposed to
prove the extent of the operating costs owed. The applicants contend that the
respondent was unable, in its opposing affidavit, to state how much the first
applicant was obliged to pay every month as operating costs. In paragraph 5 of
the opposing affidavit the respondent boldly states -
“In terms of clause 6 of the
lease agreement the first applicant was obliged to pay operating costs.”
Clause 6 details the services
that result in the obligation to pay operating costs on the part of a tenant.
No amounts are mentioned. The transaction scheduled attached to the papers do
not specify in detail the operation costs and the respondent has made no
attempt to explain the schedules.
I therefore accept the contention
by the first applicant that the respondent should have responded to the request
for further particulars. I find that the application is bona fides.
The claim for operating costs, in
my view, is not established on the papers before me and the contention by the
second applicant that he has a bona fide defence on the merits with prospects
of success is borne out by the respondent's own inability to explain the
operating costs.
In the premises, it is my view
that the second applicant has established good and sufficient cause for the
judgment under case number HC195/10 of 25 August 2010 to be set aside.
Accordingly, there will be an order in terms of
the draft as amended.
