MAKONI J: On 29 April 2010 and in case
number HC 2816/10 the applicant instituted action proceedings against the
respondents claiming the sum of GBP 39 848-00, interest on that amount at the
prescribed rate from date of summons to date of payment in full and costs of
suit on a legal practitioner client scale and collection commission. The
defendant filed a Special Plea and Exception. There was no response to the
Special Plea and Exception. The defendants proceeded to set the matter down on
the unopposed roll. On 11 August 2010 the Special Plea and Exception were
upheld and the plaintiff's claim was dismissed with costs.
On 12 October 2010 and in HC 7205/10, the first respondent
instituted action proceedings against the applicant claiming delivery of the
original Deed of Transfer number 12197/01 and costs of suit. The applicant
entered appearance to defend. On 2 February 2011 the first respondent filed a
court application for summary judgment. On 16 February 2011 the applicant filed
a “Respondent's Opposing Affidavit.” On the same date the first respondent's
legal practitioners, in response to a letter from the applicant's legal
practitioners, advised the applicant's legal practitioners on the procedural
problems in relation to the summary judgment proceedings. There was no response
from the applicant's legal practitioners. The first respondent proceeded to set
the matter down on the unopposed roll seeking an order to have the
'Respondent's Opposing Affidavit', struck off of record and an order for
summary judgment. The order was granted on 9 March 2011.
On 23 March 2011, the applicant then approached this court
seeking that the two default judgments in HC 2816/10 and HC 7505/10 be set
aside and that the respondents, jointly and severally pay the costs of suit. The
main basis for the application is that his erstwhile legal practitioners Messrs
Chigwanda Legal Practitioners had not been served with notices of set down of
the hearing of both matters.
In the same application, the applicant seeks condonation of
the late filing of the application for rescission of judgment in HC 2816/10.
His basis is that immediately upon learning about the judgment he instructed
his erstwhile legal practitioners to file an application for rescission of
judgment. He made several follow ups with his legal practitioners without
success. He then sought the assistance of his present legal practitioners.
There were further delays as he could not give full instructions to them. They
later managed to get some papers from the applicant's legal practitioners. When
these were furnished, his legal practitioner, Mr Bull, had to go on a short
leave. He only managed to file the application after his return.
On the merits, the applicant avers that he has a sound
claim for reimbursement of the money on an agreed sum of GB39 584-00. He was
given title deeds and keys to the first respondents' immovable property in
Marlborough as security. He further avers that the summary judgment be
rescinded if the court sees it fit to reinstate his money claim. This is
because the subject matter of the summary judgment, namely the claim for the
return of title deeds, is prescribed. There is a supporting affidavit by Mr
Bull where he outlines procedural deficiencies in the money claim which, in his
view, entitles the applicant's claims to be reinstated. These are:
(i)
In terms of r 138, the exception and special plea is to be set down for hearing
in accordance with the provisions of r 223 (2).
(ii)
Rule 223 (2) specifically provides that, inter alia, exception,
applications to strike out and other applications which are opposed (his
under lining) shall be set down for hearing (a) in Harare, on a business day
agreed to with the registrar, by filing a notice of set down with the registrar
not less than six business days before the day of set
down.
In
respect of the summary judgment order, Mr Bull avers that the founding
affidavit does not correctly states all facts as how the first respondent
acquired possession of the first respondent title deed.
Secondly, he avers that the first respondent does not deny
owing the entire amount and therefore it will be unfair for the court to oblige
the applicant to release the title deed held as security.
Thirdly, the claim for the title deed has expired. Lastly
the notice of set down should have been served on the applicant's legal
practitioners as the applicant intended to oppose the matter because he filed
what is entitled “Respondent's Opposing Affidavit.”
The application is opposed mainly on two grounds.
Firstly, it is averred that the applicant was in default
and he has failed to file an explanation from his erstwhile legal practitioners
as to why he did not respond to the special plea and exception and as to why
they did not file an application for rescission when instructed to do so.
Secondly, on the merits, the first respondent does not owe
the applicant any money but he is owed by third parties.
Mr Moyo filed a supporting affidavit to which he responded
to the procedural aspects raised by Mr Bull. He avers that there is nowhere in
the rules where it is prescribed to set down on the unopposed roll a special
plea and exception. As regards the summary judgment order, he avers that the
applicant's erstwhile legal practitioners did not file an explanation as to why
they did not file a proper notice of opposition. Further, they did not respond to
the letter from him pointing out the irregularity.
At the hearing of the matter, Mr de Bourbon took
issue, in limine, with the manner the applicants handled the issue of
his heads of argument. Mr de Bourbon submitted that the applicant's
heads of argument were filed on 20 September 2011 and were only served on 29
September. There is no explanation at all regarding the delay. This is an
applicant who is seeking the court's indulgence.
In response, Mr Uriri submitted that a bar does
not take effect because of non-service of the heads. There was no
prejudice suffered by the respondents as they filed supplementary heads.
The respondents in this matter filed their heads of
argument on 6 September 2011 and they were served on the same day. They
prepared the record and applied for set down. The applicant filed its heads of
argument on 20 September 2011. These were only served on 29 September 2011 on
the respondents' legal practitioners. The respondents' legal practitioners then
filed supplementary heads of argument on 24 November 2011.
The issue being taken by Mr de Bourbon is that
once heads of argument are filed, they should immediately be served on the
other side and failing an explanation the other party would be barred.
In terms of r 238, it is imperative on a party filing heads
of argument to immediately deliver a copy of the heads of argument to every
other party and file with the registrar proof of such delivery. The rule is
silent on what happens when the heads are not immediately afterwards served.
In my view, where a party does not immediately serve heads of argument and it
is put in issue, it must give an explanation as to why it failed to serve heads
of argument as soon as is reasonably possible in the circumstances. Where the
delay does not cause prejudice to the other party that should be the end of the
matter. Where there is prejudice then the defaulting party must be visited with
costs.
In casu, the respondents did not suffer any
prejudice as they were able to file supplementary heads of argument before the
hearing of the matter. I will therefore dismiss the point in limine.
Mr Uriri for the applicant submitted that although
the founding affidavit made out a case for rescission of judgment in terms of r
63, the undisputed facts of the matter brings the application squarely
within the provisions of r 449. The orders in question were wrongfully
sought and granted in error in the absence of the applicant.
In the money claim, the respondents set down the exception
as unopposed in the erroneous view that party upon whom an exception is served
must oppose the exception in the same way an application is opposed under the
rules.
In the summary judgment proceedings, the applicant filed an
opposing affidavit but did not do so under cover of a notice of opposition. The
respondents then set down the matter on the unopposed roll and argued that
there was no notice of opposition.
Mr de Bourbon submitted that the change of
direction from r 63 to r 449 comes out in the heads of argument and not in the
founding affidavit. There is no mention of error in the founding affidavit. The
change was mainly because the applicant had no arguable case on the merits.
He further submitted an application in terms of r 449 that
must be brought expeditiously. In this matter there were inordinate delay
caused by the applicant. The respondents had to arrange for the set down of the
matter. The public policy rule of finality to litigation should be applied to
decline to grant the relief that the applicant seeks.
He further submits that both orders were properly granted.
Regarding the money claim, the applicant restricted his arguments to the
exception. There is no mention of the special plea of prescription. Therefore
the applicant concedes that there was no error. As regards the exception, the
applicant did not indicate whether it opposed the exception. There was no error
when the judge dealt with the matter as unopposed.
In the summary judgment proceedings, there was no
opposition filed in terms of the rules. There was no need to give notice of set
down to the applicant. No error was committed in granting the order.
Change of Direction
I agree with the submissions made by Mr de Bourbon
on this point. The applicant belatedly sought to change the whole thrust not
only on the application itself but of the argument thereof from r 63 and r 449.
Rule 449 is mentioned for the first time in the heads of argument. There is no
mention of error in the founding papers. In effect, the applicant
painstakingly, sought to address the requirements of r 63 viz condonation for
the late filing of the application for rescission, the explanation for the
default and the merits of his claim in the money claim and his defence in the
summary judgment proceedings. Even Mr Uriri floundered when asked by
the court the basis for r 449 in the founding papers. He however pointed the
court to para 5 of the founding affidavit and para 4 of the supporting
affidavit. However, he could not explain the averments by the applicant in
para(s) 8 and 19. My view is that the applicant decided, midstream, to resort
to r 449 so that he can avoid to deal with the prospects of success.
It is trite that an application stand or falls on its
founding papers. The applicant did not make out a case for setting aside of the
orders in terms of r 449.
Assuming I am wrong I will proceed to consider whether the
orders were erroneously sought or granted and in the absence of the affected
party.
Rule 449 allows this court either mero motu or
upon the application of any party affected, to correct, rescind, or vary any
judgment or order, inter alia, that was erroneously sought or
erroneously granted in the absence of a party affected thereby. The purpose of
the rule as stated by SANDURA JA in Matambanadzo v Govsen
2004 (1) ZLR 399 (S) at 404 A – C by reference to the South African equivalent
of the rule as described in Theron NO v United Democractic Front
& Ors 1984 (2) SA 532 © at 536 D-F were it was stated:
“Rule 42 (1) entitles any party affected by a judgment or
order erroneously sought or granted in his absence, to apply to have it
rescinded. It is a procedural step designed to correct an irregularity and to
restore the parties to the position they were before the order was granted. The
court's concern at this stage is with the existence of an order or judgment
granted in error in the applicant's absence and, in my view, it certainly
cannot be said that the question whether such an order should be allowed to
stand is of academic interest only.”
MAKARAU JP (as she then was) in Tiriboyi v Jani
Anor 2004 (1) ZLR 470 (H) at 472 D-E makes the same point but puts it
differently:
“The purpose of r 449 appears to me to be to enable the
court to revisit its orders and judgments to correct or set aside its orders or
judgments given in error and where to allow such to stand on the excuse that
the court is functus officio would result in an injustice and will
destroy the very basis upon which the justice system rests. It is an exception
to the general rule and must be resorted to only for the purposes of correcting
an injustice that cannot be corrected in any one way.
The rule goes beyond the ambit of mere formal, technical
and clerical errors and may include the substance of the order or judgment. See
Grantully (Pvt) Ltd v UDC Ltd 2000 (1) ZLR
361 (S).”
It is now settled in our law that the requirements
for the grant of an order for rescission under r 449 are that:
(i)
The judgment was erroneously sought or granted;
(ii)
The judgment was granted in the absence of the applicant; and
(iii)
The applicant's rights or interests are affected by the judgment. See Tiriboyi
supra at 473 B-C.
Once these requirements are met, the applicant is entitled
to succeed and the court should not inquire into the merits of the matter to
find good cause upon which to set aside the order or judgment. See Tiriboyi
supra at 473 C.
The Money Claim
The applicant contends that the exception was set down as
unopposed because of the erroneous view that a party upon whom an exception is
served must oppose the application in the same way as an application is opposed
under the rules. There is no rule for opposition to an exception. Once an
exception is filed it must be set down in terms of r 138 (a) and (b).
The underlying requirement of r 138 (a) is the consent of
both parties and that of r 138 (b) is the filing of Heads of Argument and a
request for set down within a further four days in terms of r 223 (2) of
failing to secure consent.
The respondents challenge the applicant's contention from
two fronts. Firstly the applicant, in its Heads of Argument is only attacking
the set down of the exception. He is not challenging the set down of the
special plea. Secondly that the special plea and exception were not opposed and
were therefore properly set down on the unopposed roll.
The observation by Mr de Bourbon is correct. The
applicant in its Heads of Argument attacked the set down of the exception.
There is no mention whatsoever of the Special Plea of prescription. There was
an obligation of the applicant to oppose the Special Plea as it bore the onus
to defeat the claim of prescription. It appears the applicant is conceding that
there was no error in dismissing the claim of the ground of prescription. If
that is the position, then the claim was properly dismissed. There was no error
in granting the order as the claim had prescribed.
In respect of the exception, a litigant is obligated to
indicate to the court and the other party whether or not he opposes the
exception despite the fact that there is no rule which specifically provides
for that. Where there is no indication that the exception is opposed there
would be no error to treat the matter as unopposed.
In order to bring an exception within r 223 (3) for set
down on the opposed roll, the matter must be opposed. Rule 223 (2) provides:
“Set down of other matters on notice.
(1) …
(2) Subject to subrr
(3), (4), (5) and r 238, exceptions, applications to strike out and other
applications which are opposed shall be set down for hearing –
(a) …” (my own
underlining)
The rule uses the words “which are opposed”. This can only
be known to the Registrar and the other party if intimation of such opposition
has been given. These words also suggest that matters which are not opposed are
set down in terms of a different rule altogether. My view is that the drafters
of the rules could not have intended that every exception be set down in terms
of r 138 as an opposed matter. This would lead to an absurdity which
would adversely interfere with the administration of justice. The rules have
provided for an avenue or mechanism to speedily allow matters that are
unopposed to be dealt with. Such matters can be set down in terms of r 223 (1)
on unopposed applications. The respondents were therefore correct in setting the
matter down on the unopposed roll.
It must be appreciated that rules are practical ones for
the proper administration of the courts and a court must never be a slave of
its own rules. See Scottish Rhodesian Ltd v Honiball 1973 (2)
SA 747 (R) where BECK J (as he then was) said at p 748:
“The Rules of court are not laws of the Medes and Persian
and in suitable cases the court will not suffer sensible arrangements between
the parties to be sacrificed on the alter of slavish obedience to the letter of
Rules.”
See also Nxasana v Minister of Justice &
Anor 1976(3) SA 74 S (D) at 781 where DIDCOTT J stated:
“The rules, after all, are the court's tools, fashioned for
its own use. They are more flexible, and more easily adapted to meet particular
needs, than a statute can ever be.”
Sentiments to the same effect were expressed by WINSEN AJA
(as he then was) in Federated Trust Ltd v Botha 1978 (3) SA
645 A at 654 when he said:
“The court does not encourage formalism in the application
of the rules. These rules are not an end in themselves to be observed for their
own sake. They are provided to secure the inexpensive and expeditious
completion of litigation before the courts.”
The above remarks apply to r 138. Rule 223 (1) 'provides to
secure the inexpensive and expeditious completion of litigation before the
courts..'
Summary Judgment Proceedings
It is common cause that the applicant filed its opposing
affidavit timeously. He did not file a notice of opposition. The respondent's
legal practitioner, but letter dated 16 February 2011 advised the applicant's
erstwhile legal practitioners of the procedural problems relating to the
matter. There was no response. The second respondent applied to have the
opposing affidavit struck off the record and for default judgment. He proceeded
to set the matter down on the unopposed roll. He did not serve the applicant in
the application.
Mr Uriri submitted that failure to attach a notice
of opposition is not fatal to the application. It is not peremptory as
suggested by the respondent. There was substantial compliance with r 233 (1)
and the court could have condoned the technical non-compliance in terms of r
4C. He also referred to Founders Building Society v Dalib (Pvt)
Ltd & Ors 1998 (1) ZLR 526 for the proposition that the correct
procedure would have been to file a motion to strike out the irregular pleading
on notice to the other party.
Rule 233 (1) reads:
“The respondent shall be entitled, within the time given in
the application in accordance with r 232 to file a notice of opposition in Form
29 A, together with one or more opposing affidavits.”
The use of the word 'shall' relates to the
entitlement to oppose an application and not to the filing of the notice of
opposition. The purpose of filing a notice of opposition is to notify the other
party that the application is being opposed. The opposing affidavit then sets
out the basis upon which the application is challenged. I agree with Mr Uriri's
position that failure to attach an opposing affidavit to the notice of
opposition is not fatal and is not a bar to the respondent to the grant of its
relief. There was an irregular pleading before the court.
I however do not agree with his interpretation of what
GILLESPIE J said in the Founders Building Society supra. At p 534 D he
stated:
“If he opts for the former course, then he must, in his
application, and in fulfilment of the well recognised duty of full disclosure
in exparte proceedings, inform the court (or the judge) of the
relevant irregularity and give reasons as to why the court's discretion should
be exercised in favour of the plaintiff. The fuller, and the more preferable
course is an application on notice, to strike out cojoined with a prayer for
default judgment.”
My view is that the plaintiff is being given a choice between
the two as GILLESPIE J used the term “preferable course”. The first one
being to advise the defendant of the irregularity and then making an
application for default judgment. In the application for default judgment he
must inform the court or judge of the irregularity and why the court should
grant him the relief that he seeks. The second one is an application, on
notice, to strike out coupled with a prayer for default judgment.
In casu, the second respondent's legal
practitioner informed the applicant's legal practitioner of the irregularity
and there was no response. He then made an application to have the irregular
proceeding struck out giving a basis why it should be struck out and why he
should get the relief that it sought. The application was not on notice and
that is not fatal.
My view is therefore that there was no error in granting
the order for summary judgment. The court was aware that there was an irregular
pleading before it and went on to grant the application to strike it out based
on the application filed by the second respondent.
Delay
An application under r 449 must be brought expeditiously.
See Grantully (Pvt) Ltd Anor v UDC Ltd 2000
(1) ZLR 361 (SC) at 366 where GUBBAY CJ stated:
“After all, r 449 is “a procedural step designed to correct
expeditiously an obviously wrong judgment or order; per ERASMUS J in Bakoven's
case supra at 471 E-F.”
Judgment in the money claim was given on in August 2010.
The applicant filed the present application on 23 March 2011. The notice of
opposition and opposing affidavits were filed on 6 April 2011. These were
commissioned in Australia. The answering affidavit was filed on 5 July 2011.
The respondent then filed its Heads of Argument on 6 September 2011 and
arranged for the matter to be set down. The applicant filed its Heads of
Argument on 20 September 2011. The above narration indicates that the applicant
was not in a hurry to have the application expeditiously dealt with. It took
him thirteen weeks to file an answering affidavit yet the first respondent, who
was in Australia, filed his notice of opposition within the ten days stipulated
in the court application. After a further period of eight weeks, the
respondents then filed their Heads of Argument and arranged for the matter to
be set down. It took the applicant two weeks to file his Heads of Argument and
these were only served on the respondents some nine days after they were filed.
There has to be finality to litigation and even if the applicant had brought
himself within r 449 I would have used my discretion to decline to grant the
relief sought due to the delays.
In the result I will therefore
dismiss the application with costs.
Atherstone & Cook,
applicant's legal practitioners
Gill
Godlonton & Gerrans, respondents' legal
practitioners
