The
default judgment was granted under cover of case number HC1676/07. The first
respondent issued summons against the two applicants and the second respondent
for replacement of her water pump using the current market value. The
applicants were personally served with the summons on 15 July 2008. The amount
claimed was denominated in Zimbabwe Dollars i.e. Z$300 million. On 25 June
2008, the first respondent sought to amend her claim and filed a notice of
amendment on that date. The effect of the amendment sought was to do away with
the Z$300 million claim and substituted it with a prayer in the following
terms:-
“Wherefore,
plaintiff claims –
(a)
That defendant jointly or severally compensate plaintiff with a new pump; or
alternatively
(b)
That defendants, jointly or severally, pay to the plaintiff the current fair
market value of the pump at the time of judgment.
(c)
…,.
(d)
…,.”
Going
through the papers in the application for default judgment (under HC1676/07),
it does not seem that this application for amendment was served on the
applicants. This is a material amendment which should have been served. There
is no evidence that the application for amendment was granted either. When the
matter was set down on the unopposed roll, the first respondent (who was the
applicant) merely filed three quotations for a similar new pump. The court
granted an order in favour of the first respondent in the sum of US$1,500=. One
of the issues raised by the applicants in their application for rescission, and
in this application, is the replacement value of the pump. This value was
“amended” from Z$300 million to US$1,500=. As alluded to above, the papers do
not evince that the application for amendment was served on the applicants.
This service would have highlighted to them that the original amount in the
claim was being altered. Further, there is no evidence that the application for
amendment was granted. With these flaws, it seems to me that there is merit in
the application for stay of execution….,.
Accordingly,
I grant the provisional order in terms of the draft.
