On 25 February 2014, the respondent (Luxor), as the plaintiff, issued, simultaneously, a summons and a declaration claiming, inter alia:“(a) Cancellation of the lease agreement between the Plaintiffs and the Defendants on the 31st January 2005;(b) Payment of the sum of US$11,127=55 being arrear rentals, operational costs, and rates ...
On 25 February 2014, the respondent (Luxor), as the plaintiff, issued, simultaneously, a summons and a declaration claiming, inter alia:
“(a) Cancellation of the lease agreement between the Plaintiffs and the Defendants on the 31st January 2005;
(b) Payment of the sum of US$11,127=55 being arrear rentals, operational costs, and rates as at 25 January 2013, for Shop 1 Luxor House, Fife Street/9th Avenue, Bulawayo;
(c) Eviction of the Defendant(s) from Shop 1 Luxor House, Fife Street/9thAvenue, Bulawayo together with all those who claim title through him;
(d) Payment of holding over damages of US$1,000 per month calculated from 1st January 2013 to the date of eviction and/or cancellation of the lease agreement;
(e) Costs of suit on a client Attorney (sic) scale.”
On 11 March 2013, the summons were served on the appellants by the Deputy Sheriff, Bulawayo who explained to them the exigencies thereof.
No appearance to defend was entered.
On 4 April 2013, Luxor applied for default judgment. The matter was duly set down for hearing on the roll of unopposed matters, and, on 11 April 2013, default judgment was granted by the High Court as prayed, save that costs were granted on the ordinary scale.
On 22 April 2013, a Writ of Execution and Ejectment was served on the appellants by the Deputy Sheriff. The date of ejectment was set for the 25 April 2013.
Certain items of movable property, as well as a motor vehicle, were attached and removed by the Deputy Sheriff pending their sale in execution on 9 May 2013.
On 29 April 2013, the appellants were evicted in terms of the writ.
On 7 May 2013, the appellants filed a court application for rescission of the default judgment.
They based their application on Order 49 Rule 449(1)(a) of the High Court Rules 1971.
They alleged, that, the default judgment was erroneously granted in that it disclosed no cause of action. In particular, they alleged that there was no allegation in the declaration of a breach of the lease agreement nor was there a computation as to how the amount claimed was arrived at.
The application was opposed by Luxor, whose opposing affidavit was deposed to by one Simon Moyo, a partner in Knight Frank estate agents, who are the letting agents of Luxor.
He averred that he was authorized to depose to the affidavit on behalf of Luxor and could swear to the facts.
He denied that the judgment was erroneously given and alleged that not only were the averments in the summons and declaration sufficient to sustain the cause of action alleged, which was a failure to pay rent and operational costs, but, that documentary evidence in the form of a schedule of payments by the appellants, deeds of suretyship signed by the second and third appellants, and a schedule showing the balance outstanding as at January 25, 2013 were produced to the Court which granted the application for default judgment.
The appellants, it was alleged, had followed the wrong procedure and should have brought their application in terms of Rule 63 of the High Court Rules.
Their failure to take action after service of the summons, coupled with their inaction even when they were served with the writ of execution and eventually evicted on 29 April 2013, was a clear indication that they had no defence to Luxor's claim.
In their answering affidavit, the appellants alleged that the opposing affidavit of Simon Moyo was not properly before the court in that he had no authority (in the form of a resolution by Luxor) to act on behalf of Luxor.
Further, there was no need for the appellants to enter appearance to defend, because, upon receipt of the summons, they approached Luxor and the parties reached an agreement that the court process be stayed as an agreement to settle the rental arrears was reached.
One notes, in passing, that the fact that the rentals were in arrears was accepted by the appellants.
The learned Judge found no merit in the application and dismissed it with costs, hence this appeal.
THE APPEAL
Two main points were taken by the appellants. They were:
(i) That, the court a quo erred in dismissing the application when there was clearly no cause of action; and
(ii) Secondly, that the deponent of Luxor's opposing affidavit had no authority to represent the respondent since not only had no resolution of the directors of Luxor been produced authorizing him to do so, but, in addition, one Mr Stirling, whom the appellants alleged to be a director of Luxor, had instructed Knight Frank not to proceed with the matter against the appellants.
The second point was taken in limine and I deal with it first.
THE AUTHORITY OF MR MOYO
It was submitted, on behalf of Luxor, that, Mr Moyo was not the litigant but had merely deposed to the affidavit, in terms of the High Court Rules, as one who could attest to the facts since he had represented Knight Frank as agent for Luxor in most of the dealings with the appellants in connection with the lease.
In my view, the criticism leveled against the respondent in this regard is misplaced.
The appellants served the court application on the legal practitioners for Luxor. The legal practitioners in question had been acting on behalf of Luxor in the past proceedings between the parties.
It is trite that a company, being an artificial person, must be represented by a legal practitioner.
All that Luxor was called upon to do, in response to the application filed by the applicants, was to file a notice of opposition in Form No.29A together with one or more opposing affidavits: see Rule 233(1) of the High Court Rules.
This is what it did.
The notice of opposition was filed by its legal practitioners.
The appellants cannot blow hot and cold. By serving the application on Luxor's legal practitioners, they have accepted that Luxor is represented by its legal practitioners in the litigation.
They cannot now deny that Luxor is the party litigating.
The affidavit by Simon Moyo is merely an accompanying affidavit filed in terms of Rule 233 of the High Court Rules.
