KAMOCHA J: The
background information which is largely common cause is this:
The parties were married to each
other on 1 May 1996. The marriage was going through a turbulent period
resulting in the wife instituting divorce proceedings by issuing divorce
summons against the husband on 7 July 2006.
The husband entered appearance to defend and filed his plea.
The husband started developing
problems when notice to make discovery was served on his erstwhile legal
practitioners on 4 April 2008. For some
reasons he was unable to make discovery for two months prompting the wife to
file an application to compel discovery.
The application was granted on 25 June 2008. In it the husband was required to file
discovery documents within 5 days of service of the order upon his legal
practitioners. Failing which his defence
would be struck out and his wife would be granted leave to set down the matter
on the unopposed roll without notice to him.
When an attempt to serve the
application to compel discovery was made on Mabhikwa, Hikwa and Nyathi legal
practitioners, the legal practitioners refused to accept service stating that
their records did not show that they were ever engaged by the defendant. They also did not recall instructing Advocate
Nkiwane to act on their behalf in this particular matter. They concluded by suggesting that the
application to compel discovery should be served on the defendant
personally. There is nothing on record
to show that the said legal practitioners renounced agency nor is there any
assumption of agency by them.
What is clear is that S Nkiwane when
he entered appearance to defend on behalf of the defendant on 31 August 2006 he
gave out that the defendant's address for service was Messrs Mabhikwa, Hikwa
and Nyathi, legal practitioners. He went
on to state that those legal practitioners, in particular M. Nyathi, had in
fact instructed him. He repeated that on
30 January 2007 when he filed the defendant's plea. What all that means is that Advocate Nkiwane
was in fact not being instructed by the legal practitioners. He was dealing directly with the
defendant. Hence, serving the court
order on the said legal practitioners served no useful purpose.
An attempt to serve the order on
defendant personally at house number 29 Heythrop Road, Montrose was fruitless
as he was said to be in the Cement Siding area.
Finally substituted service had to be used to serve the court order by
publishing it once in the Chronicle newspaper on 7 November 2008. Defendant says he did not read that day's
paper.
The real cause of all the confusion
in this matter emanates from Advocate Nkiwane who without making adequate
arrangements for this matter went to Namibia on business. He referred to Mabhikwa, Hikwa and Nyathi,
legal practitioners as his instructing legal practitioners when they did not
retain him. His client who was in fact
his friend must have been led to believe that there were other lawyers who
would handle his case in Nkiwane's absence.
At one stage Nkiwane referred him to Munjanja & Associates. There is no assumption of agency by those
legal practitioners and yet they were to negotiate a consent paper with the
plaintiff. In the circumstances
applicant can be forgiven for believing that his matter was being handled by
some legal practitioners. In result I
hold that he was not in willful default.
He has good prospects of success in
the light of the fact that Nkiwane could not effect discovery due to other
commitments in Namibia. He failed to
make adequate arrangements.
The respondent argued that applicant
was bent on frustrating the finalization of this matter without giving specific
incidents showing such conduct.
It was further argued that
applicant's degree of non-compliance with the rules was gross. That is untenable in the light of the fact
that applicant only learnt about the order on 14 May 2009 and filed his
application for rescission on 21 May 2009.
In the light of the foregoing I hold
the view that this is a proper case to condone the late filing of an
application for rescission.
Lazarus & Sarif,
respondent's legal practitioners
