CHEDA
AJ: This
is an application for rescission of a default judgment granted in favour of the
respondent against the applicants on 22 October 2009.
The applicants are husband and wife. In the applicants' founding
affidavit Mr Shumba says the respondent issued summons against them in case
number HC 1556/07 and then subsequently applied for summary judgment in case
number HC 1154/08. Judgment was handed down on the 2nd of
April 2009 and he was ordered to pay certain monies as well as vacate certain
premises known as Greengables Farm, the remaining extent of subdivision B of
Dunstal, Bulawayo. He says they appealed the judgment to the Supreme
Court. While the appeal was pending the respondent issued fresh summons
under case number HC 900/09 asking for the same relief. They defended the
matter and respondent applied for summary judgment on 15 July 2009 which was
also opposed. Instead of filing its heads of argument and setting down
the matter, the respondent issued a notice of intention to bar on 4th
September 2009. By this time they had no money and failed to pay the
legal practitioner's fees. He goes on to say “As a summary judgment
application was pending the notice to bar was irregular”. The respondent
then applied for default judgment which was granted on 22 October 2009.
The prayer in his draft order is that the default judgment entered on 22nd
October 2009 be rescinded and the status quo ante be restored which is
to say that 1st and 2nd applicants be and are hereby
restored, with immediate effect, into occupation of Greengables Farm.
The application is opposed by the respondent. The respondent points out
that the application is out of time and there is no application for condonation.
He goes on to deal with the merits of the original claim and the history of the
case. The respondent denies that the notice of intention to bar was
irregular.
Although the applicants filed what was called a consolidated file, it was not
properly consolidated, and the supporting documents for the various matters
referred to are not in it. Instead there are a number of files showing
that indeed, at some stage there were the following cases: 900/09 application
for default judgment; 1112/09 application for summary judgment; 1894/12
application for rescission.
To begin with, it seems the applicants are reluctant to fully inform the court
regarding the factual situation in this case. The papers relevant to each
of the cases referred to are incomplete. There is neither an order nor a
judgment for any of the applications. There is no copy of the notice of
appeal although it seems there was at some stage an appeal to be heard at the
Supreme Court. The fate of that appeal case is not disclosed.
The respondent's papers reveal that the matter proceeded to execution stage,
after the original judgment in case number 900/09 and that at some stage the
parties attempted to negotiate a settlement. The respondent does not deny
giving notice of intention to bar but does not explain the purpose for that if
they had already got summary judgment. The respondent filed its heads out
of time but did not seek condonation.
There was no need for the procedure adopted by the respondent. The
applicant did not file any supporting documents, but both parties argued on the
rescission of a judgment which was not filed. A party seeking rescission
against a judgment issued by a court should file such judgment. The court
cannot rescind an alleged judgment whose existence and contents or order is not
clear and such judgment or reasons for it are not provided.
In my view, the issue that resolves the matter is that the order sought by the
applicants, which they say should have the effect of restoring them into the
occupation of the respondent's property cannot be granted. It is a
different judgment from the one to be rescinded. The applicants seem to
mix the judgments against them. Even if the second judgment, in this case
the default judgment, was irregular, the original claim against them had been
proved and they have not shown that they successfully appealed against that
decision.
I agree with the applicants that if the respondent had already got summary
judgment on the same case there was no basis for another summons, judgment and
the notice of intention to bar which is referred to. Also if that
judgment had been valid the applicants would still need to show why rescission
was not applied for in time.
The applicants also raised argument to the effect that the respondent was
barred as he had not filed heads within the time limits. Without any
condonation the respondent would indeed be barred.
The end result is that the second judgment was null and void.
I consider that it was indeed irregular for the respondent to issue double
process for the same claim and relief.
On that basis the second judgment should be set aside. The fact that the
applicant did not enter appearance when called upon to do so is irrelevant.
However, the setting aside of that judgment cannot result in an order as prayed
for by the applicant. There is still a valid judgment which proceeded to
execution stage. It is on the basis of that judgment that it was ordered
that the applicants be evicted from the respondent's property. That order
cannot now be joined with the rescission of the other judgment.
Accordingly, the subsequent judgment granted in default is set aside. The
judgment in case number 900/09 is to stand. Since both parties were not
complying with the Rules regarding condonation I make no order for costs in
favour of either party and each party will bear its own costs.
Calderwood, Bryce Hendrie &
Partners, applicants' legal practitioners
Cheda
& Partners, respondent's legal practitioners
