The applicants seek the grant of interim relief in the form of a provisional order staying execution of a writ issued against them pending the determination of an application for rescission of judgment. This follows a default judgment granted under HC.,.

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal.

These are the reasons:-

The respondent was appointed executor of the estate of the late Phineas Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende.

This application was for condonation of late filing of an application for rescission of a default judgment granted by this court on 23 August 2010.

The bare bones of the matter are that prior to his demise, the late Lovemore Ngwende had instituted a court application, under case number HC1308/10, challenging the validity of the second Will said to have been executed by his late father, Phineas Ngwende. Apparently, a default judgment was granted against Lovemore Ngwende in that case after which he lodged an application for its rescission which he failed to prosecute timeously, prompting the respondent to make a chamber application, under case number HC5285/10, to have the application dismissed for want of prosecution.

On 23 August 2010, MUSAKWA J granted the chamber application by way of this order:

“Court application for Rescission of Default Judgment (sic) Case No. HC1308/10 be and is hereby dismissed for want of prosecution. First respondent pays costs of suit.”

In the present application, filed on 14 April 2011, the applicant was seeking condonation for late noting of an application for the rescission of MUSAKWA J's order of 23 August, 2010.

The law in an application of this nature is now trite.

In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC) A it was held that in terms of Rule 63(1) a defendant against whom a default judgment has been granted has a period of one month from the date he became aware of the judgment to apply for rescission of that judgment. If he does not make the application within that period, but wants to make it after the period has expired, he must first make an application for condonation of the late filing of the application. If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for rescission but also for the delay in seeking condonation. There are thus two hurdles to overcome. See also Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135..,.

In the instant case, the default order sought to be rescinded was granted on 23 August 2010. The late Lovemore Ngwende died in December 2010. The application for condonation was only filed on 14 April 2011. The applicant is non-committal as to when exactly he became aware of the default order save to say in the founding affidavit;

“We only became aware of the existence of the application (sic) when the respondent wrote a letter threatening to sell the house in Highfield which the window (sic) of late Lovemore Ngwende is residing…,. We could not challenge the application (sic) during the relevant time before the appointment of executor hence this delay. The delay was not wilful.”

The papers filed of record ventilate that at least by 3 January 2011 the widow of the late Lovemore Ngwende had become aware of the default order of 23 August 2010 for on that date she wrote to the Master of this Court complaining about the respondent's threat to dispose of the Highfield house to offset the liabilities of the estate. Even if the court were to be benevolent and accept that both the application for the rescission of the order as well as for condonation could not be filed before appointment of the executor, I would still be minded to find the explanation for the delay unacceptable.

The applicant was appointed executor dative of the late Lovemore Ngwende's estate on 1 March 2011. By then, Lovemore Ngwende's widow had long been aware of the existence of the default order. The application for condonation of late filing of the application for rescission of the default order was only filed on 14 April 2011 – one month 14 days after the appointment of the executor. The peroration in the applicant's founding affidavit that the delay was occasioned by the wait to have the executor appointed amounts to digging in the ashes. No explanation as to why the condonation was not sought as soon as possible after 1 March 2011 or why the application for rescission was also not filed soon after that date, or, at most, within one month post 1 March 2011 has been proferred.

In the event, the two hurdles the applicant had the onus of scaling remained insurmountable to him.

Even if one were to look at the prospects of success regarding the default order sought to be impugned, the complaint is that a matter should not be dismissed for want of prosecution due to a delay of only four months, I would still find the applicant non-suited if account is had to Order 32 Rule 236(3)(b). It provides that where the respondent has filed a notice of opposition and an opposing affidavit and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent may, on notice to the applicant, make a chamber application to dismiss the matter for want of prosecution.

This is exactly what the respondent did and I have no reason to doubt that my brother MUSAKWA J, in granting the chamber application, was satisfied, on the papers before him, that the requirements of the relevant Rule had been complied with.

It is not sufficient for the applicant in casu to merely baldly allege that he was not served with the notice for the chamber application or that the matter had been set down for hearing. If that was so then the proper procedure was for the applicant to invoke Rule 449(1)(a) for it would have been clear that the order was granted in error.

The applicant also attempted to go further on prospects of success regarding the main matter of challenging the Will.

While that aspect does not fall within the realm of the present application it behoves me to utter some strictures concerning it vis-à-vis the principle of finality to litigation. The first and final distribution account of the late Phineas Ngwende was approved by the Master of the High Court and the plot in contention, which the first Will had bequeathed to the late Lovemore Ngwende but was later bequeathed to Lovemore's stepmother and two stepbrothers in equal shares by the second Will has long been sold by private treaty for value and transferred to an innocent third party and the proceeds shared amongst the beneficiaries and dissipated. The prospects of success, even in the main matter, seem to be only a pie in the sky.

The foregoing were the reasons why the application for condonation for late filing of the application for rescission was dismissed with costs.

This is an opposed application for rescission of an order of divorce granted by this court on 19 May 2011 in case No. HC3037/10.

The order sought by the applicant is couched in the following terms;

“IT IS ORDERED

1. That the judgment that was issued in default of filing of a plea by the applicant in case Number 3037/10 on 17 May 2011 (sic) be and is hereby rescinded.

2. That the applicant will file her plea within 48 hours of this order being issued.

3. That there will be no order of costs if this application is not opposed.”

The background facts giving rise to this application can be summarised as follows;

The applicant was married to the respondent in terms of the Marriage Act [Chapter 5:11]; which marriage was solemnised on 8 December 1989. There are now only two minor children born out of that marriage, namely, Blessing Tawanda Zulu born on 26 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000.

The applicant has been ordinarily resident in the United Kingdom for some time where she is said to be working as a nurse at the same time seeking to regularise her resident status. The applicant is in custody of the two minor children in the United Kingdom and the Magistrates Court in Zimbabwe granted a contributory maintenance order against the respondent in respect of the minor children in case No. M333/11. The respondent is resident in Zimbabwe.

On 7 May 2010, the respondent issued summons out of this court seeking a decree of divorce, an order governing division of matrimonial assets, an order governing custody of the minor children and cost of suit if the matter is defended.

The applicant was served personally with the respondent's declaration at the Magistrates Court (Civil) Harare on 18 February 2011 where she was attending a court hearing - presumably the maintenance case.

On 25 February 2011 the applicant filed an appearance to defend and gave her address of service as that of her legal practitioners who had assumed agency, Mujeyi Manokore Attorneys.

On 23 March 2011, the respondent filed a notice to plead and intention to bar which was served upon the applicant's legal practitioners on the same day.

The applicant did not file the plea and the dias induciae expired which meant that the applicant was barred in terms of the Rules of the court and an endorsement to that effect was made by the Registrar on 11 April 2011.

The respondent proceeded to set the matter down on the unopposed roll and a notice of set down was served on the applicant's legal practitioners on 4 May 2011 and the set down date was on 12 May 2011. The applicant did not attend court, and, on 19 May 2011, my brother judge CHITAKUNYE J granted the following order;

“It is ordered that;

1. Divorce Order:- That a decree of divorce be and is hereby granted.

2. Maintenance:- The plaintiff will pay maintenance as per the Magistrates Court order granted at Harare in case No. M333/11.

3. Custody:- Custody of two minor children, namely, Blessing Tawanda Zulu born on 23 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000 be and is hereby granted to the defendant. The plaintiff shall enjoy reasonable access.

4. Property:-

4.1 Movable:- It be governed and distributed as per Annexure “B” to this order.

4.2 Immovable: It be governed and distributed as per Annexure B attached to this order.

5. That the defendant pays the costs of suit.”

On 13 June, the applicant filed this court application seeking the rescission of the order granted in default by CHITAKUNYE J.

Let me comment briefly on the distribution of the matrimonial estate as per Annexure B to the order granted in default. Annexure B is similar to Annexure 'B' also attached to the respondent's declaration in the main action. In terms of Annexure B, the respondent was awarded a total of thirty five (35) movable assets including two motor vehicles, Honda Oddysey and Honda Prelude, water bowzer and a trailer. The applicant was awarded a total of forty (40) movable assets including a Mazda B2500 single cab truck and business interests in the Mabvuku Family Clinic and Maternity Home.

In respect of immovable property, the respondent was awarded two immovable properties, namely, the matrimonial home, No.28 Churchill Avenue, Malborough, Harare and a four roomed house in Chipatiko Village in rural Domboshava. The respondent was also awarded business interests in the company known as Germini Medicines Supplies (Pvt) Ltd trading as Pharm Chem. The applicant was awarded also two immovable properties, being No.1034 Shambare Street, Old Mabvuku, Harare and a seven (7) roomed house with several out-buildings in Zimbwa Village in rural Domboshava….,.

I now turn to the merits of the application.

THE LAW

In terms of Order 9 Rule 63 of the High Court Rules, 1971 (hereinafter the Rules) this court may set aside judgment given in default. The relevant provision, Rule 63(2), is couched as follows;

“63 Court may set aside judgment given in default

1….,.

2. If the court is satisfied, on application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”…,.

In terms of the rules, therefore, the applicant has to prove, on a balance of probability, that there is good and sufficient cause to rescind the Divorce Order granted in default.

Counsel for the applicant, in argument, also placed reliance in section 9 of the Matrimonial Causes Act [Chapter 5:13] which provides as follows;

“9 Variation, etc of orders

Without prejudice to the Maintenance Act [Cap 5:05] an appropriate court may, on good cause shown, vary suspend or rescind an order made in terms of section 7 and subsections (2), (3) and (4) of that section shall apply mutatis mutandis, in respect of any such variation, suspension or rescission.”…,.

The above cited provision became more relevant in view of the applicant's position that she has no qualms with parts of the order granted in default by CHITAKUNYE J in relation to decree of divorce in terms of section 5 of the Matrimonial Causes Act [Chapter 5:13] and the order in relation to custody of the two minor children.

Counsel for the applicant argued that the rescission sought is a partial rescission of the order granted in default in relation to the division of the matrimonial estate in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

In my view, this argument can only be relevant if this court is satisfied that there is good and sufficient cause or that good cause has been shown justifying the rescission of the default judgment.

It is now trite law that the court, in setting aside or rescinding a default judgment, considers the following factors;

(i) The explanation for the default. In this regard, the court considers the reasonableness and the acceptability of the explanation given.

(ii) The bona fides of the applicant or application.

(iii) The bona fides of the applicant's defence on the merits as well as prospects of success or the prima facie strength of the applicant's case.

See; Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S); Beitbridge Rural District Council v Russel Construction Co (Pvt) Ltd 1998 (2) ZLR 190 (S)…,.

I now proceed to apply these principles to the facts of this case.

1. Applicant's explanation for the default

It is common cause that the applicant was served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b) of the Rules and that after the dies induciae the respondent proceeded to seek a final order in terms of Order 35 Rule 272(2)(b) of the Rules. It is common cause that the applicant, even after being served with the notice of set down in terms of Rule 272(2)(b), did not attend court. The probability is that even if the applicant had attended court on the date of set down the applicant could still not be heard on the merits without seeking the upliftment of the bar in terms of the Rules.

I have to consider whether there is a reasonable and acceptable explanation given by the applicant for failure to comply with Order 35 Rule 272(1)(b), and, to some extent, Rule 272(2)(b) of the Rules.

I am not persuaded by counsel for the applicant's belated submission that I should grant the order sought on the basis of Order 49 Rule 449 which relates to correction, variation and rescission of judgments and orders. The order granted by CHITAKUNYE J, on 19 May 2011, was not issued in error but in terms of Order 35 Rule 272(2)(b).

The explanation given for the default by the applicant is not clear in her founding affidavit. In fact, in her founding affidavit, the applicant did not see it fit and proper to give any reason as to why the order granted by CHITAKUNYE J should be rescinded. The applicant had only this to say:

“The exact details of the order I seek will be expressed in the affidavit that has been deposed to by my attorney, Bruce Mujeyi. I incorporate the contents of his affidavit as is specifically traversed herein.”

The applicant, in her wisdom, decided to shy away from proffering any explanation to her default in her founding affidavit which is crucial to her case. In other words, the applicant gave no explanation as to what she did about this case after she instructed her attorneys to enter an appearance to defend on 25 February 2011 until four months later, on 13 June 2011, when she filed an application for rescission of the order granted in default. It is not clear whether she was, during that period, in Zimbabwe or not. She does not explain again if she communicated with her attorneys, and, if so, how she did that. The applicant does not explain if indeed she gave her attorneys any instructions to file a plea to the plaintiff's claim. All these questions are not answered in Mr Mujeyi's supporting affidavit which the applicant seeks to rely upon. It is therefore clear to my mind that the applicant had not, in her founding affidavit, given any explanation for the default save to leave matters in the hands of her erstwhile legal practitioners.

It may be worthy to consider what explanation is given by the applicant's erstwhile legal practitioners Bruce Mujeyi (hereafter Mujeyi). It is pertinent to note that after deposing to the supporting affidavit on 10 June 2011 and filing this application on 13 June 2011, Bruce Mujeyi renounced agency barely two days later, on 15 June 2011.

The thrust of Bruce Mujeyi's supporting affidavit is to try and explain the failure by the applicant, in particular Mujeyi himself, to file a plea after being served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b). Mujeyi's explanation is that after he entered an appearance to defend, on 25 February 2011, he left the country. He does not explain as to when he left the country or where he went or for how long he was out of the country. There is no explanation as to what instructions he left in relation to the applicant's file at his law firm and with whom.

Was it prudent for Bruce Mujeyi to simply enter an appearance to defend and leave the country for an unspecified period without ensuring that other legal practitioners in his firm would attend to his matters in his absence?

That conduct, in my view, is not only unreasonable but unacceptable.

It is not clear as to whether Bruce Mujeyi had been given instructions or taken instructions to file the applicant's plea. All he says is that the notice to plead and intention to bar was served when he was out of the country. Again, it is worthwhile to quote his own words:

“The notice to plead and intention to bar was dealt with in a matter (sic) that decries sheer incompetence by a member of my staff. The document was simply filed away in the file instead of being referred to one of the several legal practitioners in my firm who were there during the time I was away. The matter was subsequently heard as an unopposed matter and judgment was granted on 17 May 2011.”…,.

As already said, there is no explanation as to when Bruce Mujeyi left the country and for how long he was away. In fact, the respondent challenged this averment and said that on the day he served the notice to plead and intention to bar on Bruce Mujeyi's legal firm, Mujeyi was present at the firm. In fact, the respondent said soon after effecting service of this notice to plead he was called by Bruce Mujeyi who was in his office, and, as persons known to each other, they had a discussion on social issues unrelated to the matter.

I am constrained to find that the respondent would lie on this aspect and fabricate such evidence.

In any case, this has not been refuted by Bruce Mujeyi who has not offered any proof to show that he was indeed out of the country, for example, through his passport. He said he only became aware of the default judgment when an unnamed legal practitioner in his firm sent him an e-mail indicating that the applicant was being evicted from the matrimonial house on account of the default judgment.

It is again unclear if by then the applicant was in Zimbabwe. No proof of such an e-mail is provided. It is also important to note that there is no supporting affidavit from the receptionist in Mujeyi's legal firm who received the notice to plead and the notice for set down to confirm the averments by Mujeyi on what happened when Mujeyi was ostensibly out of the country. No explanation for that omission is made. The receptionist would indeed confirm why she would act in the manner alleged and indeed take the blame if it is true that it is what she did.

The explanation given by Mujeyi is that the applicant was not at fault for the default as she was not alerted to the fact that the respondent had filed a notice to plead and intention to bar, and, subsequently a notice of set down. He further avers that the level of delinquency exhibited by his law firm in the matter is deplorable, which blame he shifts to the receptionist, and that this should not be held against the applicant who is not to blame for this fiasco.

I am not persuaded by this argument not only because it had not been shown that what Mujeyi says is indeed correct but also on account of the fact that our courts have long pronounced, loudly and clearly, to all and sundry that where legal practitioners fail to take appropriate action to protect their clients' interest such conduct besides being treated as wilful non-compliance with the rules would be treated as wilful disdain by the clients themselves.

It is not good enough for the applicant to shift the blame to Mujeyi's law firm and for Mujeyi to run away from the blame by shifting blame to an unnamed secretary in the law firm and by renouncing agency in this matter. Mujeyi was the legal representative of the applicant whom the applicant chose herself. I therefore find no reason why, in relation to failure to comply with Rule 271(1)(b) of the Rules, by not entering a plea, the applicant should be absolved from the normal consequences of such a relationship and choice, no matter what the circumstances of the failure are.

The wise words by McNALLY JA in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S)…, apply with equal force in this case;

“The time has come to remind the legal profession of the old adage, vingilantibus non dormientbus jura subvenient - roughly translated, the law will help the vigilant but not the sluggard.”

It is therefore my finding that the applicant has dismally failed to proffer a reasonable and acceptable explanation for her default to enter a plea.

2. The bona fides of the applicant

The applicant's sincerity in the matter is very doubtful. As already explained, besides instructing attorney to file or enter an appearance to defend the applicant does not explain if she took any further action in this matter like instructing her attorney to file a plea or to make any follow ups on such a matter of importance to her. After filing the application for rescission of judgment, in June 2011, and after her erstwhile legal practitioner renounced agency, the applicant simply did nothing in ensuring that the matter is prosecuted. In fact, it is common cause that it is the respondent who had to push for the matter to be heard by setting the matter down. The applicant just filed an application for rescission and abandoned as it were. Even after the matter had been set down, on 1 November 2011, it had to be postponed on account of the applicant who engaged her current legal practitioner of record who was not available. It is therefore doubtful if this application is made in good faith. This point is more pertinent when one considers the next aspect which relates to the prima facie strength of the applicant's case.

3. Prospects of success as prima facie strength of this case

The applicant, in paragraph 4 of her founding affidavit, objects to the award made in respect of the matrimonial house, No.28 Churchill Drive, Malborough, Harare and the family businesses, that is, the clinic in Mabvuku and the medical supply companies. The applicant avers that this property was jointly acquired by the parties and the respondent cannot unilaterally determine how the property should be shared. The applicant's view is that the court should revisit this issue so as to take into account her own contribution to the matrimonial estate.

The applicant also indicates that she would want the issue of maintenance of the two minor children to be revisited without explaining in what regard.

In my view, the applicant does not explain why the order granted in default should be deemed unfair. The applicant does not explain how the matrimonial estate should have been distributed.

The complaint raised by the applicant, in relation to the maintenance order granted by the Magistrates Court being incorporated in the Divorce Order is difficult to appreciate as the applicant does not explain why she did not appeal against the maintenance order at the time it was granted or seek an upward variation of the order. The applicant does also not explain at all why she has not enforced her rights in terms of the Maintenance Act [Chapter 5:09] if the respondent is not complying with the maintenance order. I am surprised that Bruce Mujeyi, in his supporting affidavit, would also raise this issue of non-compliance with the maintenance order by the respondent! One would expect him to be better informed on how to enforce compliance with such an order rather than to seek a rescission of the relevant order.

I have already alluded to how the matrimonial estate was distributed as per Annexure B to the Divorce Order. The applicant would have no qualms with the decree of divorce, the custody of minor children, and distribution of most of the movable property. The division of the matrimonial estate, at divorce, is in accordance with section 7 of the Matrimonial Causes Act [Chapter 5:13].

The factors which the court has to consider are listed on section 7(4)(a)–(g) of the Matrimonial Causes Act [Chapter 5:13]. The only factor the applicant has alluded to is her alleged contribution to the matrimonial estate. The applicant does not explain how the order granted did not take this into account in view of what was awarded to both parties. The applicant only made a bold and unsubstantiated assertion that the division of the matrimonial estate was unfair and unjust without explaining how with specific reference to Annexure B. These omissions in the applicant's founding affidavit are fatal as such averments are crucial as her application is premised within the four corners of the founding affidavit.

There is therefore nothing in the applicant's founding affidavit to show that the matrimonial estate was not justly and equitably shared taking into account the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13].

All in all, the applicant did not address her mind to the fairness or otherwise of the distribution of the matrimonial estate as per Annexure B. In my view, both the movable and immovable property was shared in almost equal proportions between the parties. The applicant admits that the marriage has irretrievably broken down and that the decree of divorce is in order.

The applicant accepts that it was proper for her to be awarded custody of the two minor children.

The issue pertaining to the current maintenance order can be dealt in the context of other domestic remedies available.

The applicant raises no issue with the respondent's rights to reasonable access to the minor children.

No wonder why counsel for the applicant conceded that he was now seeking a partial rescission of the order contrary to the order initially prayed for. I am therefore of the view that the applicant has not shown, on a balance of probability, any prospects that the matrimonial estate may be distributed in a different manner if the default judgment is rescinded.

The applicant did not even explain why it would be unfair to award the matrimonial house to the respondent who is residing in Zimbabwe while she is resident in the United Kingdom with the children.

Lastly, counsel for the applicant raised the issue that I should rescind the Divorce Order granted in default on account of the fact that there was no personal service effected upon the applicant in terms of Rule 272(2)(b) of the Rules in relation to the notice of set down. Reference was made to the case of Le Roux v Le Roux 1957 R & N 831 (SR)…, in which BEADLE J…, discusses the effect of the non-compliance with the provision of a similar provision to Rule 272(2)(b) of the Rules. See also Butler v Butler 1951 SR 122.

It is considered view that Rule 272(2)(b) of the rules requires that the notice of set down shall be served upon the defendant and that the court can only proceed if it is satisfied that personal notice of the defendant has been drawn to the fact that the matter had been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.

In casu, default judgment was granted on account of non–compliance with Rule 272(1)(b) – failure to enter a plea. In addition to that the respondent complied with Rule 272(2)(b) by serving notice of set down on the applicant's legal practitioners of record.

It would be absurd, in my view, where, like in this case, the applicant was represented and had given her address of service as that of her legal practitioners to expect the respondent to serve the notice of set down upon both the applicant and also on her legal practitioners of record.

In casu the applicant, who is resident in the United Kingdom, had given an address of service in Zimbabwe which is of her legal practitioners of record. One may therefore ask where in the United Kingdom would the respondent have been expected to serve the notice of set down and would such notice be proper when it is not given at the applicant's address of service. I am satisfied that the court which granted the default judgment was properly satisfied that the notice of set down had been drawn to the personal notice of the applicant as it was served upon her legal practitioners of record at her instance. The manner in which Rule 272(2)(b) is drafted, in my view, is different from Rule 39(1) of the Rules.

I am therefore satisfied that the judgment was granted in compliance with Rule 272(2)(b) of the Rules.

It is my finding that the applicant has failed to establish good and sufficient cause to warrant the rescission of this default judgment granted on 19 May 2011.

Accordingly, the application is dismissed with costs.

The applicant seeks rescission of an order of this court granted against him in favour of the first respondent.

The order was granted on 10 March 2011 under case number HC205/11. Under case number 205/11 the first respondent instituted proceedings through summons against the applicant seeking the transfer of Stand Number 70250/2 New Lobengula to herself from the applicant. The applicant entered an appearance to defend, but did so outside the prescribed time specified in the High Court Rules, 1971. The first respondent then proceeded to make an application for default judgment as the applicant had been barred automatically, which application was granted on 10 March 2011.

Pursuant to the above, the applicant then made this application for rescission of judgment. The first respondent is opposed to the application.

This application is made in terms of Rule 63 of the High Court Rules.

The applicant has to show, before the indulgence of rescission is granted, that he has sufficient cause for the indulgence. The applicant has not shown any good and sufficient cause for the court to rescind the judgment. The reason that he proffers for not having filed his appearance to defend on time is that the respondent's lawyers knew that the matter was defended, and, as such, they should have informed his lawyers that he should file the plea.

The applicant cannot expect for the respondent to litigate and defend on his behalf. His lawyers are the ones who were supposed to file his defence and they failed to do so. In the circumstances, the applicant does not have an acceptable reasonable explanation. In any event, applicant's legal practitioners were advised of the late filing of the appearance to defend and they ignored this. The letter reads:

“The above matter refers.

Please take note that your client's appearance to defend was filed out of time, and, as such, your clients are barred.

Further, what exactly are your client's defence when they know that they sold the said property to the plaintiff, we wonder!!

We advise that we are proceeding to set this matter down as your clients are barred.

Be well advised….,.”

This letter was written to the applicant's erstwhile legal practitioners on 16 February 2011. The applicant's legal practitioners did nothing until the 10^th of March 2011 when the order under HC205/11 was granted. The applicant's legal practitioners should have known the next step to take.

The letter was delivered to the address provided in the appearance to defend.

The applicant does not say exactly how his erstwhile legal practitioner let him down. In fact, he tries to defend him and blame the respondent's legal practitioners. I am, therefore, unable to assess his erstwhile legal practitioner's moral blameworthiness. He has not even sought an affidavit from the erstwhile legal practitioner explaining why he did not regularize the appearance to defendant by seeking condonation – Independence Mining (Pvt) Ltd v Soko SC188-93; Cobra and the Wildcat (Pvt) Ltd v Tundu Distributors (Pvt) Ltd 1990 (1) ZLR 133 (H); and Challenge Auto (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd 2003 (1) ZLR 17 (H).

The applicant was informed of the non-compliance with the Rules in the abovementioned letter. About a month later he had not done anything to seek the court's indulgence to condone the non-timeous filing of the appearance to defend. His explanation, as alluded to above, is not reasonable.

His case, on the merits, is not convincing.

He was sued together with his maternal aunt Sepelong Nyathi. They were both represented by the same legal practitioner when they attempted to file the appearance to defend. Yet, in this application, he states that the said aunt committed a fraud by forging his signature and other contractual documents. The respondent bought the disputed property and paid for it. Assuming what he is saying now is part of the instructions given to his erstwhile legal practitioner I wonder how the latter would have proceeded to represent both of them.

The explanation for the dilatoriness lacks bona fides. The applicant's case is weak on the merits. The convenience of the court demands that there be finality in this matter. The case of Ndebele v Ncube 1992 (1) ZLR 288 (SC) is instructive on the penalization of a party for the negligence of lawyers and a failure to follow or to comply with court rules. At 290C-E, McNALLY JA has this to say –

“It is a policy of law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays, either by the individual or his lawyers, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt – roughly translated; the law will help the vigilant but not the sluggard.”

See also Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; and V. Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H).

In casu, this application is devoid of merit and is accordingly dismissed with costs.

The basic requirements for the application of rescission of judgment to succeed were laid down way back sixty years ago.,. In that case BRINK J had occasion to remark that:

"I am of the opinion that an applicant who claims relief under Rule 43 should comply with the following:

(a) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance.

(b) His explanation must be bona fide and not made with the intention of merely delaying the plaintiff's claim.

(c) He must show that he has a bona fide defence to the plaintiff's claim. It is sufficient if he makes a prima facie defence in the sense of setting out averments which if established at trial would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probalities are actually in his favour."

On 1 June 2009 this court granted an order that case numbers HC2190/09 and HC2224/09 be heard urgently and simultaneously, consequent to an application that the matters be heard on an urgent basis and simultaneously. For ease of reference, I will refer to the parties as they are cited herein in both matters.

The brief background to the matter is that on 13 May 2009, this court, and on the unopposed roll, granted an order(“the order”) directing that the applicants and all persons acting on their authority shall forthwith vacate Homefield Farm or any portion of the farm and that they pay the respondents' costs. On 14 May 2009 the applicants filed an application for the rescission of that judgment. On 15 May 2009 the Deputy Sheriff attempted to serve the order. A disagreement arose between the applicants on one side and the first and second respondents and the Deputy Sheriff on the other side. It degenerated into an assault on the Deputy Sheriff and the first respondent.

The court order was finally served on 18 May 2009.

On 19 May 2009 the applicants filed an application for stay of execution of the order pending the determination of the application for rescission of judgment. On 20 May 2009 the respondents filed an application for contempt of court for failure to abide by the order served on them on 18 May 2009 by the applicants.

On 4 June 2009, the parties entered a gentlemen's agreement whereby the respondents undertook not to enforce the order pending the determination of the matters before me.

At the hearing of the matters, I decided to deal with case number HC2224/09 which is the application for rescission of judgment.

In this matter, the respondents raised a point in limine to the effect that the applicants cannot be heard as they were in contempt of the order referred to above. My reasoning was that if I upheld the point in limine, then the application will be dismissed at that stage. If I dismissed the point in limine, I would then proceed to determine the issue of rescission of judgment. It was also my reasoning that the arguments advanced in respect of the point in limine in HC2224/09 would assist in disposing of case number HC2190/09.

The point was taken, by the respondents, that the applicants should not be heard as they were in contempt of court. The order of 13 May 2009 directed that the applicants vacate the farm forthwith. The applicants remain in occupation.

The applicants deny that they are in contempt of court and advance, in the main, three reasons;

(i) Firstly, they contend that prior to 18 May 2009, the order had not been served on them personally. Upon being served with the order, they applied, on a certificate of urgency, for stay of execution.

(ii) Secondly, that the applicants immediately filed an application for rescission of judgment. The application was filed within twenty-four hours of the judgment being granted.

(iii) Thirdly, that the order was vague by its use of the word “forthwith”.

(iv) Fourthly, that the applicants could not be in contempt of court after the “gentlemen's agreement” entered into on 4 June 2009....,.

The applicants submitted that they were not in contempt of the order as they immediately filed an application for rescission of judgment. It was further argued that the Rules give the defendant a window period of one month to set aside a judgment granted in default and that the application for rescission suspended the order until the determination of the application.

This is a novel argument.

It is a settled position in our law that an application for rescission does not suspend an order of court. If that was the position, the procedure of an application for stay of execution would not have been necessary. Instead, there would have been a provision for an application for execution pending the determination of the application for rescission of judgment. We do not have such a procedure as an application for rescission does not suspend the order. The applicants must have been aware of this position and this explains why they proceeded to file an application for stay of execution on 19 May 2009.

The first and second respondents rely on a written Agreement of Sale which was allegedly entered into by the parties. The applicants deny that an Agreement of Sale was concluded.

In the declaration filed under case number HC456/07, the averment is made that the applicants were represented by the third respondent. There is no averment that the applicants signed the Agreement.

In an application of this nature, all an applicant has to show is that he has a defence to the claim. The court cannot, at this stage, subject that defence to close scrutiny as long as prima facie there appears, to the court, sufficient reason for allowing the defendant to lay before the court the facts he thinks necessary to meet the plaintiff's claim.

In this matter, there is no signed Agreement between the parties, the Agreement having been signed by the Purchasers and the estate agent. The applicants deny that they concluded an agreement for the sale of the Stand, and from the inception of the dispute they have adopted this stance. They have shown a prima facie defence and should be given an opportunity to place facts before the court on which their defence is reliant.

I will therefore issue an order in the following terms:

1. The automatic bar operating against the applicants as a result of their not having entered appearance to defend the summons issued against them in case number HC2383/08 be and is hereby uplifted.

2. The first and second respondents be and are hereby ordered to arrange service of the summons referred to in para 1 above at their correct addresses, or upon their legal practitioners of record.

This is an application for rescission of a default judgment that was granted against the deceased, Andrew Benjamin Woodburn Charumbira, who was the applicant's husband.

In case number HC2534/06, the deceased instituted proceedings against the first respondent for the transfer of Stand 776 Fort Victoria Township of Victoria District. The matter was set down for 16 January 2008 when it was dismissed for want of appearance on the part of the deceased.

In her founding affidavit, the applicant states that the deceased died on 17 December 2006. The applicant was subsequently appointed executor of the estate on a date not specified. However, annexure “A” to the founding affidavit purports that an edict meeting was held on 18 December 2006. She advertised the estate in the Government Gazette of 15 June 2007 as well as in The Masvingo Mirror of 28 August 2007. She gave her address as 30 Elliot, Rhodene, Masvingo.

No process in the name of the deceased was ever brought to her attention. Thus, she contends that there was no wilful default.

On the merits, she contends that there is a good claim against the first respondent as he conducted a double sale. It is also her contention that since the deceased's claim is one of real rights, it is transmissible to his estate.

The second issue raised by counsel for the first respondent was that the applicant had not demonstrated why she believes she has prospects if rescission is granted.

This is because she did not show that there is a prima facie claim against the first respondent apart from making a bald averment that the deceased purchased the disputed property from the first respondent.

It is further contended that the applicant must show that the claim against the respondent has prospects of success. The issue of a double sale was never raised by the applicant's late husband when he instituted the application.

It is also contended that the applicant's late husband failed to provide proof that he paid the full purchase price for the property.

As regards an application for rescission of judgment, it is a requirement that an applicant has to establish the following –

(a) An explanation for the default.

(b) The bona fides of the application for default.

(c) The bona fides of the applicant's case on the merits.

In this respect, see the cases of Roland & Another v McDonnell 1986 (2) ZLR 216 (S) and Washaya v Washaya 1989 (2) ZLR 195.

Regarding the bona fides of an applicant's case on the merits, McNALLY JA had this to say in the case of Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (SC)..., -

“Before I go further, I think it is necessary to say something about the kind of allegations one may expect from an applicant for rescission of judgment. The effect of the cases is summed at p371 of the edition of Herbstein and van Winsen: The Civil Practice of the Superior Courts in South Africa as follows –

'the applicant must show that he has a bona fide defence to the plaintiff's claim, it being sufficient if he sets out averments which, if established at the trial, would entitle him to the relief asked for, he need not deal with the merits of the case or produce evidence that the probabilities are actually in his favour.'”

Now, in the present matter, the applicant claims that the deceased was first to purchase the house in question, and that the first respondent subsequently sold it to another.

Although not stated, it is also common cause that the applicant is in occupation of the house.

It cannot be said that on the face of it the applicant has no prospects of success in her claim.

I note that the first respondent's defence is that he cancelled the Agreement of Sale because he did not receive the purchase price in full. Suffice to further note that the Agreement of Sale was subsequently amended in respect of the purchase price and vacant possession. That is why the deceased was able to assume occupation. In his notice of opposition, the first respondent does not explain how the Agreement was cancelled.

In the result, the application is granted in terms of the draft order save that costs shall be on the ordinary scale.

This is an application for a rescission of judgment.

The applicant is the Executrix Dative of the Estate Late Clement Ndlovu, and is also the surviving spouse. During his lifetime, Clement Ndoluvu entered into an Agreement of Sale of an immovable property with the first respondent on the 26^th of July 2001. One of the terms of the Agreement was that the first respondent was to pay an initial deposit and thereafter pay the first instalment on or before the 30^th of August 2001. She, however, failed to pay the other instalments for three months.

On the 22^nd of October 2001, Clement Ndlovu gave the first respondent a grace period up to 30 November 2001 to remedy the breach, at the same time advising her that in the event of her failure then the Agreement would be cancelled.

Unknown to the applicant, the first respondent paid $205,000=, which was twelve months after the first breach.

In October 2002, the first respondent mounted a legal action against the late Clement Ndlovu, which was opposed. However, the first respondent did nothing from June 2003 to April 2006. Clement Ndlovu passed away in August 2006. After his death, the first respondent filed her Heads of Argument.

The question then is, was the late Clement Ndlovu in wilful default.

It is the applicant's argument that he was not, as he was under the impression that the first respondent had abandoned her claim. It is a fact that the first respondent did nothing until after Clement Ndlovu's death.

In order for an application for a rescission of a judgment to succeed, it is trite that the applicant must show that he was not in wilful default and that he had a bona fide defence.

It is a fact that the late Clement Ndlovu genuinely believed that the first respondent had abandoned her claim as she did not pursue it for so many years, but, only to do so immediately after his death.

As to whether or not the applicant had a genuine defence, one has to look at the first respondent's action right from the beginning of this matter.

Upon realizing that the first respondent had breached the contract, he advised her of the breach and the consequences thereof. The first respondent did not heed this advice and only paid after twelve months.

It is clear, therefore, that the late Clement Ndlovu has always wanted to defend this matter which therefore shows his bona fides.

In my opinion, the first respondent's argument is baseless and cannot be believed. She failed to prosecute her claim timeously, only to do so immediately after the late Clement Ndlovu's death, and she had, after all, breached the contract as she had defaulted in her payments.

In light of the above, the application succeeds and the following order is made:-

1. The Judgment which was granted in the first respondent's favour under Case Number HC 2631/02 be and is hereby rescinded.

2. Applicants be and are hereby authorised to defend the said action.

3. Applicants shall file their Heads of Argument in the abovementioned action within fourteen days of this Order.

This is an application for rescission of judgment.

The first respondent has raised a point in limine that this application is not properly before this court in that it was not heard and determined within thirty (30) days of the default judgment being granted.

The first respondent is saying that the application should have been heard and determined before 14 October 2007. Failing which, the applicants should have applied for condonation. In other words, the point raised by the first respondent is that the application for rescission has been made outside the thirty days period set under Order 9 Rule 63(1), High Court Rules, 1971.

The first respondent argues that the interpretation and impact of Order 9 Rule 63(1) was put to rest by the Supreme Court in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S) and Highline Motor Spares (1933) (Pvt) Ltd & Ors v ZIMBANK Corporation Ltd 2002 (1) ZLR 514 (S) – see also Theunissen v Payne 1940 TPD 680...,.

The applicants' case is that the first respondent's argument is not in tandem with the Rules of this court, which are peremptory and ought to be complied with by the applicants.

It is argued that Rule 226(1) requires that all applications shall, for whatever purpose, be made -

(a) As a court application; or

(b) As a Chamber application.

In other words, all applications have to comply with Order 32.

The pith and marrow of the argument are the following.

First, there is no way an application of this nature can be filed, heard, and determined within a thirty (30) day period. The periods referred to..., as stipulated in Order 32, exceed thirty (30) days.

Second, in terms of the Rules and the Bulawayo High Court Practice Note 1 of 2003, the applicant does not set down the matter. Such set down is the province of the Deputy Registrar and the judge allocated the application.

The delay in set down beyond the thirty (30) day period is beyond the applicants' control.

In casu, the application was filed on time, i.e. the first working day after the granting of the default judgment. The delay in the set down of the matter cannot be attributed to the applicants, as such why should they apply to be condoned?

This is an appealing argument in terms of logic.

But, the Supreme Court has decided to follow the decision in the Theunissen v Payne 1940 TPD 680 case, that the making of the application is when the application is set down and not merely when it is filed – see Sibanda v Ntini 2002 (1) ZLR 264 (S)..., and Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S) case. This reasoning of the Supreme Court may seem unfair to the litigants who file their applications within thirty days but the same are not set down by the judge, or the Registrar, within thirty days.

But the law is now settled, if the application for rescission is not heard and determined within thirty days, the applicant must first seek an indulgence, or condonation, before the application for rescission is heard.

This court is bound by the precedents set by the Supreme Court. To argue against such Supreme Court decisions is the domain of academics and not this court.

After hearing both counsel, I dismissed the application with costs and indicated that my written reasons would follow in due course. These are they.

On 15 January 2009, the first and second respondents, who were applicants in that matter, sought and were granted an order by default against the present applicant jointly with the present third, fourth and fifth respondents.

In essence, the order was to the effect that the notice gazetted by the Minister, on 26 September 2008, purporting to acquire the piece of land under consideration be declared unlawful and invalid to the extent that such action was in breach of the terms of the Certificate of No Present Interest issued in favour of the first respondent on 4 September 2008 pursuant to the provisions of section 47 of the Land Acquisition Act [Chapter 20:11].

Consequently, the executor i.e. Jan David Gutherless, was granted leave to proceed with the transfer of the said property in favour of Donald Mazwi Sibindi, the second respondent herein, in terms of the Agreement of Sale entered into by the parties on 19 September 2008.

The Registrar of Deeds was authorized and directed to register the Deed of Transfer in favour of the second respondent.

Castro Ndlovu, together with all those who claimed through him, were ordered to vacate the property immediately so as to give vacant possession to the executor who, in turn, gave vacant possession to Donald Mazwi Sibindi, as stipulated in the Agreement of 19 September 2008.

In the event that Castro Ndlovu, and all those who derived claims through him, failing to vacate the said property, the Deputy Sheriff of this Court was authorized to evict them from the property.

He claimed to have proffered a reasonable explanation for failing to defend the matter timeously, and believed that he had a good defence to the respondent's claim. In any event, the respondent would suffer no prejudice if execution is stayed pending the application for rescission.

It was his view that the scales of justice were heavily tilted in his favour.

The respondent contended that the applicant's explanation for failure to defend the matter was unreasonable and unacceptable.

Castro Ndlovu was personally served with the court application on 17 December 2008. He is a well-educated and sophisticated businessman who decided to ignore court process. His reason for doing so was that after he had received the court application, he went to consult a lands officer who, according to him, advised him to ignore the court process.

No affidavit was obtained from such land officer to support the applicant's allegation.

The applicant's explanation is grossly unreasonable.

A reasonable person of his status is not expected to believe that a lands officer's authority supercedes that of a court of law. An ordinary Zimbabwean who receives court process would either seek legal advice from a legal practitioner, or would approach the court to find out what one is expected to do. Yet, the applicant, who is a sophisticated businessman, chose to consult a lands officer..,.

It is trite law that the factors which are taken into account in deciding whether default judgment should be rescinded are –

(a) The reasonableness of the applicant's explanation for the default;

(b) The bona fides of the application to rescind the judgment; and

(c) The bona fides of the defence on the merits of the case and whether that defence carried some prospect of success – Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86; Roland & Anor v McDonnell 1986 (2) ZLR 216 (S)...,.; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)...,; Stockil v Griffiths 1992 (1) ZLR 172 (S)...,.; Mdokiwa v Shoniwa 1992 (1) ZLR 269 (S) and Ndebele v Ncube 1992 (1) ZLR 288 (S).

I propose to consider these factors in turn.

(a)  The reasonableness of the applicant's explanation for the default

The applicant's explanation is that she initiated the application and thereafter left for her communal home to plough. She was represented by one Alpheus Ncube, who she thought was an estate agent. Alpheus Ncube referred her to one Elder Sam, who was said to be a lawyer.

Alpheus Ncube was not an estate agent, and Elder Sam was not a legal practitioner.

Elder Sam consulted with her, and filed a court application under HC2612/07 on her behalf.

She trusted Elder Sam when he said he would do everything on her behalf thereafter, and she proceeded to her communal home to do the ploughing...,. She was content with Elder Sam's ability to do her legal work after seeing that he had managed to file the said court application.

In the circumstances, she said it was not by design that she did, initially, file her answering affidavit under HC 2612/07 timeously, nor was it by design that she did not file, right away, a notice of opposition under HC40/08. She was not in Bulawayo, and Elder Sam did not communicate these issues to her. She said that she was ignorant of court practice, and she was under the mistaken belief that Elder Sam was a lawyer, and was in control of the situation. Upon her return from the communal lands she went to see Elder Sam, only to be told more papers needed to be done so that she could sign them.

Her explanation is, briefly, that she had been duped by Alpheus Ncube, and Elder Sam, into believing that the latter is a legal practitioner capable of handling the matter on her behalf.

There is no suggestion that her explanation is false, but, certainly, she was gullible. Her gullibility, bearing in mind she is a rural dweller who trusted the wrong guys, does not make the explanation unreasonable. She should not be condemned for being a victim of deceit.

Her explanation for the default is, therefore, reasonable.

(b) The bona fides of the explanation for rescission

It is not clear which is the correct purchase price. There are two prices given, viz. $600 million and $300 million. It does seem to me that one of the prices was given to cheat the Zimbabwe Revenue Authority of the capital gains tax. This is what I glean from the papers.

With such unexplained disparity of the purchase price, it is difficult to determine the merits of the cancellation of the Agreement of Sale.

(c) The bona fides of the defence on the merits

I have already alluded to the problem on the purchase price. There is, it seems, the correct price in the minds of the parties, and another price for tax evasion. The applicant and the estate agent seem to know of the price of $600 million. The conclusion, and execution, of the Agreement is characterized by misrepresentations to the applicant...,. She was deceived by a person who purported to be an estate agent and another who purported to be a lawyer...,. The impact of these issues have to be examined vis-a-vis the legality of the contract.

In the circumstances, the applicant has made out a case for the order sought.

Accordingly, it is ordered as follows:-

(a) That the order of this court granted on 6 February 2008, under case number HC40-08 be and is hereby rescinded.

(b) That the second respondent be and is hereby interdicted from allowing the transfer of Stand Number 4656 Nketa 7, Bulawayo, registered under Deed of Transfer..., 611/08, to anyone else, pending the outcome of this matter.  

This is an application for rescission of judgment.

The default judgment was entered on 26 July 2007 in favour of the respondent. The applicant states that he became aware of the judgment on 31 July 2007. This application was filed on 16 August 2007. By 30 August 2007 the application had not been set down by the applicant. In fact, over a year and a half later, still, the applicant had not set down the application

Even this set down was at the behest of the respondent.

The respondent's case is that the interpretation and impact of Order 9 Rule 63(1) was put to a rest by the Supreme Court in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S); and Highline Motor Spares (1933) (Pvt) Ltd & Ors v Zimbank Corporation Ltd 2002 (1) ZLR 514 (S). See also Theunissen v Payne 1940 TPD 680..., and Dube & Anor v Zondo & Anor HB28-09.

The law is now settled that if the application for rescission is not heard, and determined, within thirty days, the applicant must seek an indulgence, or condonation, before the rescission is heard.

This court is bound by the precedents set by the Supreme Court. Arguing against such clear decisions of the Supreme Court is the province of academics and not this court.

The respondent has raised a point in limine that the application is not properly before this court in that it has not been heard, and determined, within thirty (30) days of the default judgment being granted.

The respondent is saying that the application should have been heard within thirty days of the date on which the applicant had knowledge of the default judgment, or that an application for condonation of non-compliance with Rule 63(1) has been made and granted. In other words, the point raised by the respondent is that the application for rescission has been made outside the thirty day period set under Order 9 Rule 63(1), High Court Rules, 1971.

In casu, this point in limine was taken as early as December 2007. Over one and a half years later the applicant has not applied for condonation. It is not clear whether this was out of ignorance, arrogance, or negligence.

The third defendant, who was alleged to have bought the vehicle, was served with summons on 24 August 2006, and entered appearance to defend on 29 August 2006. He, thereafter, did not do anything further about the matter.

The plaintiff moved that a default judgment against him be granted in favour of the plaintiff.

This is an application for rescission of judgment.

Before the applicants made their submissions, the respondents, through their legal practitioner..., raised a point in limine, being that the applicants should not be heard on the merits because they failed to comply with Order 9 Rule 63(1) which states -

“63(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has knowledge of the judgment, for the judgment to be set aside.”

That the applicant did not apply for the setting aside of the judgment granted in default within one month admits of no doubt. It is for that fact that the respondents argue that the applicants should not be heard as they have not complied with that Rule.

Counsel for the applicants, while acknowledging that, indeed, the applicants did not file their application for rescission timeously, and did not apply for condonation of the late filing of the same, sought to argue that this court had discretion to hear the application for condonation together with the application on the merits.

Counsel for the respondents has argued that Rule 63 shows that the applicant should make the said application, and have it set down for hearing, and subsequent hearing, within thirty days.

 In Viking Woodwork (Pvt) Ltd v Bluebell Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)..., SANDURA JA stated -

“In terms of Rule 63(1), a defendant against whom default judgment has been granted has a period of one month from the time he becomes aware of the judgment, within which to file an application for the rescission of judgment. If he does not make the application within that period, but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application. This should be done as soon as he realizes that he has not complied with the rule. If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for rescission of the default judgment, but also for the delay in seeking condonation.”

Counsel for the applicants has argued that the interpretation of Rule 63 relates to the filing only, and not to the filing and hearing. This, he further argued by deduction, means that the application can still be entertained at the hearing of the main application.

The question that falls for determination, therefore, is the interpretation of the meaning of Rule 63.

In Sibanda v Ntini 2002 (1) ZLR 264 (S)..., MALABA JA stated -

“It is clear from r63(2) that before considering the question whether or not the application contains a “good and sufficient cause” for it to exercise the wide discretion conferred upon it in favour of the applicant, the court must be satisfied that the application has been made and granted.” (the emphasis is mine).

The learned judge made it clear in that judgment that it is not only the filing which is necessary, but it is the filing, hearing, and granting of the order. This does not only make legal sense, but common sense too, as the applicant's right of audience for the application for rescission to be heard is dependent on the condonation being granted by the court.

The same principle was followed in Highline Motor Spares (Pvt) Ltd and Others (1933) v ZIMBANK Co-operation Ltd 2002 (1) ZLR 514 (S) and Dube v Zondo HB28-09.

The background to this application is that on 11 April 2006 the respondents unlawfully disposed people who were manning the Church of the keys to that Church and barred everyone else out. Following this action, and on 12 April 2006, the applicants made an application for a spoliation order against the respondents in the Magistrates Court (Case No.5450/06). The matter was heard on the same day and a rule nisi issued in favour of the applicants. The return date was 3 May 2006.

The applicant's legal practitioner failed to attend court on the return date resulting in the discharge of the rule nisi. On 5 May 2006, the first respondent issued a default judgment which judgment the applicants are now seeking to be reviewed.

As to the events surrounding the default judgment, Onius Gumbo stated that assuming the applicants erstwhile legal practitioners forgot to, or were not aware of the return date how could the first applicant also forget the date. The first applicant applied for, and obtained, a rule nisi, and was made aware of the return date. The applicants were clearly in default and they had to explain their default.

I agree with the submissions by the respondents counsel that this application is an attempt to circumvent the prescribed process and procedure for seeking rescission of a default judgment in circumstances where the applicants knew that they were out of time. The arguments made in this application could still be made in an application for rescission of the default judgment.

Two issues arise from the manner in which the applicant sought to have the default judgment against it rescinded. It did not file a court application, on notice to the respondents, as provided for in the Rules of this Court. Order 10 Rule 63(1) of the High Court Rules, 1971 specifically provides that a party against whom a judgment has been given in default may apply to have that judgment set aside by filing a court application. It would appear that the Rules of Court do not envisage a situation where and when such relief can be obtained through the filing of a chamber application.

This is an application for rescission of the judgment granted by this court on 13 May 2009 in case number HC6215/08. The matter was argued before me on 3 September 2009.

The brief background to the matter is that the respondents filed a court application for spoliation in case number HC6215/08 on 27 October 2008. This was after the dismissal of an urgent chamber application for the same relief in case number HC4864/08. They proceeded to file another urgent chamber application on 12 November 2008 under case number HC6507/08 seeking the same relief based on fresh acts of spoliation. This case was heard by MUSAKWA J on 19 November 2008 and judgment was handed down on 28 January 2009 dismissing the respondents' application.

The applicants did not file opposing papers in case number HC6125/08.

The matter was set down on the unopposed roll on 6 April 2008 and was postponed to 29 April 2008. The record reflects that on 29 April 2008 Mr. Zhou appeared for the respondents and Mr. Chingore for the applicants. This appears on the motion roll result sheet. The matter was further postponed to 13 May 2008. The result sheet of that date reflects that, again, the parties were represented by the same legal practitioners who appeared on 29 April 2009. It also reflects that the order was granted as amended. The present application was then filed the following day.

The application is made in terms of Order 9 Rule 63. In terms of that Rule, the court may set aside a judgment entered in default if it is satisfied that there is good and sufficient cause to do so. The factors that the court takes into account in defining good and sufficient cause are now settled in our law. They have been discussed and applied in a number of cases in our jurisdiction. See Stochhill v Olivine 1988 (2) ZLR 210.

These factors are –

(i) The reasonableness of the applicant's application for the default.

(ii) The bona fides of the application to rescind the judgment.

(iii) The bona fides of the defence on the merits of the case which carries some prospect of success.

The applicants contend that they were not served with the court application. They got to know about the application when they were served with case number 6507/08 whereby the respondents were seeking, inter alia, amalgamation of that case with case number HC6215/08. This was around 18 November 2008. They further contend that the two matters were consolidated and dealt with by MUSAKWA J.

The respondents contend that the applicants were served with the court application by the Deputy Sheriff in October 2008. When the applicants put this factor in issue before MUSAKWA J they were, again, served with the application through their legal practitioner, Mr. Chingore. They did not file any papers in opposition hence the setting down of the matter on an unopposed roll.

Even if I were to disregard the returns of service by the Deputy Sheriff, the applicants have not disputed that they were served with the court application through their legal practitioner, during or after the hearing before MUSAKWA J.

Further to the above, on 29 April 2009, counsel for the applicants appeared before HUNGWE J in motion court. As is the nature of motion proceedings, one cannot tell from the record what transpired in court. However, what is significant about this fact is that by 29 April 2009 counsel for the respondent was aware that case number HC6215/08 was still alive and had been set down on the unopposed roll due to failure by his clients to file opposing papers. No papers were filed to regularize the default until 13 May 2009 when the default judgment was granted.

From the above account, it is clear that the applicants became aware of the existence of case number 6215/08, and with full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely took a decision to refrain from filing papers in opposition. See Zimbank Banking Corp. v Masendeke 1995 (2) ZLR 400 (S)...,.

In my view, the minefield that confronts a judge when considering an application for rescission of judgment was very succinctly stated by McNALLY JA in Deweras Farm v Zimbabwe Banking Corp. Ltd 1998 (1) ZLR 368..., as follows -

“I respectfully agree with the dicta of INNES J in the oft cited case of Cairns Executors v Gaarn 1912 A.D. 186. In particular his Lordship said –

This is an application for rescission of judgment in which the application was dismissed on the turn....,.   These are the reasons.

The applicant seeks rescission of judgment granted in default on 25 January 2010 under HC7064/08. In his founding affidavit, the applicant avers that he was not in unlawful default because he had punctually attended at Court J where the matter was scheduled to be heard. After waiting for business to resume, to no avail, he left Court J to seek assistance from the Registrar. He was assured that he was in the right court; he had to be patient. He went back to Court J. Later, the same officer approached him to advise that there had been a mix-up as this case was before the JUDGE PRESIDENT in Court N; when he eventually got into Court N business in that Court had concluded. A default judgment had been entered against him in favour of the first respondent.

The first respondent conceded, properly, that the applicant was not in wilful default as there was a mix-up of the courts that day. It says it was also affected by the mix-up.

It further contends, however, that the applicant cannot succeed unless he can show that he had a good defence to the first respondent's claim. The first respondent urged the court that as the applicant's case was very weak it was bound to fail. No purpose will be served by rescinding the default judgment since the applicant will fail anywhere in the main case.

I agree with the contention that where an applicant for rescission is unable to demonstrate that he has a plausible case, or a triable issue, or sufficient cause, he cannot succeed in a rescission of judgment. See Shinga (Pvt) Ltd v Hubert Davies (Pvt) Ltd 1989 ZLR 45 (H). It will be an abuse of process to allow hopeless resistance to just claims the discretion of rescission. Rescission is a step which is within the discretion of a court, which must be exercised judicially. To bend backwards so as to allow hopeless argument is not a judicial exercise of such discretion.

In the present case, it is clear on the papers that the main basis for instituting the application for eviction was that the applicant had not paid his rentals since July 2008. Had this contention been false this could have been easily demonstrated by attaching proof of such payment at the outset of the proceedings. The fact that even in his application for rescission the applicant did not bother to show this proof demonstrates that the claim is not being seriously made.

As for his defence against the first respondent's claim; he claims that the first respondent is not the owner of the house in question so he has no right to evict him. He claims that he has no power of Attorney to act on behalf of the owner of the house, one Dennis Shoko. He denied that he was given the three months' notice to vacate that he would have been entitled to at law in terms of the Rent Regulations.         

The first respondent, in its opposing affidavit, pointed out that the applicant's affidavit is founded on false information.

It pointed out that the applicant has always known that the first respondent was the lawful estate agent of the lessor. The applicant had applied for his tenancy through it, and, as such, had recognized the first respondent as the lawful agent of the owner of the house.

It attached the applicant's application form for full measure.

It also produced a notice to vacate dated 25 July 2008 and received by one O'Connor, the brother to the applicant, on 26^th July 2008. In fact, the applicant stopped paying rent in June 2008, prompting the owner to file for the applicant's eviction, so the first respondent says.

Secondly, the first respondent disputed that Dennis Shoko owned the house. In support of this, it produced title deeds to the premises which showed that, in fact, the true owner of the house is Blessing Bessie Nyatsango.

The applicant had no answer to all these assertions besides stating that he had paid his rentals in advance. He was asked to prove his claims that his rentals were up to date till the day he received summons. He could not.

The applicant approached this court seeking an order to rescind the order granted by this court on 1 April 2009 in HC6379/07. He approaches the matter from two fronts. He seeks rescission in terms of Rule 63 as well as in terms of Rule 449 of the High Court Rules (1971)…,..

The applicant also avers that he has a bona fide defence on the merits on the basis that the respondent has no locus standi to bring a rei vindicatio claim against him. The land in dispute was acquired and ownership now vests in the State.

The application is opposed on the basis that the applicant failed to give a reasonable explanation of his default. He did not file a supporting affidavit from his legal practitioners to support his story. The respondent also avers that it did not file a rei vindicatio claim but a claim for damages.

I will first deal with the application in terms of Rule 63.

Rule 63(2) provides that a court may set aside a default judgment if it is satisfied that there is good and sufficient cause. The factors to be taken into account in considering whether or not there is good and sufficient cause to rescind a judgment have been set out in a number of cases in our jurisdiction. In Roland & Anor v Macdomeli 1986 (2) ZLR 216 (SC)..., the then learned CHIEF JUSTICE DUMBUTSHENA had this to say -

“In coming to a final decision one has to ask whether the defendant has shown 'good and sufficient cause' within the meaning of Rule 63 of the High Court Rules. Did the court a quo take into account:-

(a) The defendant's explanation of his default;

(b) The bona fides of the application to rescind the judgment; and

(c) The bona fides of the applicant's defence on the merits of the case, and, did the court normally consider these matters in conjunction with each one and cumulatively.”

See also Dewera's Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S); Stockhil v Griffiths 1992 (1) ZLR 172 (S); and Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210(S).

The applicant's basis for seeking the order is that he was not aware that the matter had been set down for a pre-trial conference. He did not receive the correspondence from his legal practitioners advising him of the set down date. He would receive correspondence from his legal practitioners through his son's garage address. The person who would receive the correspondence left the employ of his son. He did not handover the correspondence to anyone.

I will deal with each of the factors in turn.

Applicant's explanation for his default

The applicant's explanation is that he was not aware that the matter had been set down for a pre-trial conference. Counsel for the respondent conceded, in his submissions, that the applicant was not aware of the set down date. He took issue with the fact that the applicant's legal practitioners should have filed an affidavit to explain their conduct. It was his submission that the legal practitioners did not do enough to bring the date to the attention of the applicant.

The issue that then falls for determination is whether the applicant's default was wilful.

Wilful default was defined in Zimbabwe Banking Corporation v Masendeke 1995 (2) ZLR 400 (S)…., as occurring -

“When a party, with full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely takes the decision to refrain from appearing.”

See also Matambanadzo v Zvidzai Jameson Zvavamwe SC99-02.

It is clear from the above authorities that the applicant's default cannot be described as wilful. He did not have any knowledge of set-down date of the pre-trial conference, neither did he have knowledge of the subsequent renunciation of agency by his legal practitioners. He did not take a conscious decision not to attend the pre-trial conference…..,.

In my view, once there is a concession that the applicant was not aware of the set down date that is the end of the enquiry.

The bona fides of the application and the bona fides of the applicant's defence on the merits

I agree with the applicant's counsel's approach to deal jointly with the above factors as they have a direct bearing on each other.

What constitutes a bona fide defence has been dealt with in Greenberg v Meds Veterinary Laboratories (Pvt) Ltd 1977 (2) SA 277 (TPD) (quoted with approval in Roland & Anor v Macdomeli 1986 (2) ZLR 216 (SC)…,.) in the following terms-

“The sole question for decision, therefore, is whether the applicant has a bona fide defence to that application. The onus is on the applicant for rescission to establish that fact. The requisites for success in establishing it were stated in Grant v Plumbers (Pvt) Ltd 1949 (2) 470 (O) as:

'It is sufficient if he makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities were actually in his favour.'”

The plaintiff's (respondent in this matter) claim in HC6379/07 is that it legitimately carries on farming operations from Frogmore Farm. The defendant (applicant in this matter) wrongfully and unlawfully moved his belongings and personnel onto a portion of the farm and wrongfully and unlawfully interfered with the plaintiff's farming operations. This resulted in the plaintiff suffering damages in the sum of US$38,250= which he now prays for.

In his plea, the defendant contends that his actions were lawful as his occupation of the farm was consequential upon an offer letter from the Government of Zimbabwe.

There is a dispute, as between the parties, whether the farm in question has been acquired. The applicant contends that is was acquired, and, as a result, the respondent has no locus standi to bring the claim as it is based on a rei vindicatio claim. The respondent contends that the farm was not acquired and that there are judgments of this court to that effect. In any event the respondent's claim is not a vindicatory action.

In my view, the applicant has made out a prima facie defence which, if established at the trial, would entitle him to the relief applied for. He is putting in issue the legitimacy of the plaintiff to carry on farming activities on the farm. He has also claimed to have moved on the farm legitimately based on the offer letter given to him by Government. These issues need to be ventilated at a full trial….,.

Having made a finding that the applicant has a bona fide defence it means that the application is made bona fides.

The applicant seeks an order for the rescission of a default judgment entered against it on 1 April 2009.

The background to the dispute is as follows. The respondent is the registered owner of an immovable property, namely – Shop 1 Murandy Square West, Newlands, Harare. On 1 February 2001 the parties herein entered into a written agreement of lease, wherein the respondent leased to the applicant the premises referred to above for a period of three years commencing on 1 February 2001 and terminating on 31 January 2004. On 18 November 2008 the respondent, through its legal practitioners of record, sent a letter to the applicant which stated that the applicant had not paid rental and operating costs for the month of November 2008 resulting in it, the applicant, incurring arrears for the same in the sum of $881, 566,345,216=25. The applicant was informed in the said letter that the lease had been cancelled. The letter concludes by demanding the applicant pay the arrears, vacate the premises and hand the keys over to the respondent by no later than 20 November 2008. The applicant did not vacate the premises, and, as a result, the respondent caused summons to be issued out on 17 February 2009 under case number HC429/09 wherein the respondent claimed payment of the alleged arrears for rentals and operational costs, holding over damages, interest on the two sums being claimed and costs of suit.

It is common cause that the applicant did not enter appearance to defend resulting in the default judgment which is the subject matter of this application.

I will deal first with the issue of wilful default.

The applicant states that it was not in wilful default as regards the failure to enter appearance. This is what the applicant states in paragraph 10 of the founding affidavit.

On 21 February 2009, the same day that the applicant was served with the letter dated 18 November 2008, the applicant was served with summons in case number HC429/09. A copy of the summons and declaration is hereto attached as annexure “F”. At that particular date the applicant's account balance with the respondent clearly indicated that the applicant did not owe the respondent anything. This was self-evident from annexure “E”. The deponent to the founding affidavit states that he had sought clarity from Mr Chidemo of Richard Ellis who confirmed that nothing was owing to the respondent and who advised the applicant to ignore the summons as they would be withdrawn. The applicant contends that as a result of this assurance, it did not enter an appearance to defend.

The opposing affidavit has been deposed to by Kumbirai Chidemo, a Portfolio Manager with CB Richard Ellis, who, in the main, denies that he had spoken to Hassan, the applicant's representative, about having the summons withdrawn. He states that the alleged statement by the applicant is an attempt to found a basis upon which to justify its failure to take any action when served with summons.

It has not been denied by the applicant that it received the summons and decided not to enter appearance to defend the action. The applicant has itself, in its heads of argument, correctly defined wilful – within the context of default judgment - that wilful default has been held to connote deliberateness in the sense of knowledge of the action and of its legal consequences and a conscious and freely taken decision to refrain from entering notice of intention to defend the claim.

The explanation given by the applicant for its failure to enter appearance to defend is not acceptable. Summons was served upon a Manager who would have, or ought to have, been alive to the consequences of not defending the summons. Even if one were to accept the contention that the summons and the letter cancelling the lease were received on the same day, it should have leapt to the mind that the respondent was seeking the eviction of the applicant from the lease of premises and prudence and good business sense would have required that continued occupation of the premises had to be ensured, and, therefore, that there was need to respond to the summons. The letter may have emanated from Kumbirai Chidemo, the summons had not, and, therefore, any effort to obtain indulgence would have required that the applicant speak, not just to Kumbirai Chidemo but to the legal practitioners who had issued summons for eviction. No effort was made to deal with the summons.

I find that there was a wilful default on the part of the applicant in failing to enter appearance.

I turn next to the issue of whether or not the applicant has a good and bona fide defence on the merits.

The applicant does not dispute that rentals and operational costs for November 2008 were not paid in time. It appears that even the rentals for December 2008 were not paid in time. According to the applicant, it made a payment of fifty quadrillion Zimbabwe dollars into the account of CB Richard Ellis on 24 December 2008. The applicant explains its failure to pay the rent for November 2008 in time on an alleged failure by the respondent to issue an invoice for rent. Even assuming that this was the respondent's practice the applicant should just have paid rent according to the previous month's figure until advised otherwise. It is obvious that the amount paid on 24 December 2008 was not paid following the issuance of an invoice. The applicant has, however, not taken the court into its confidence to explain how it could have paid in December 2008 in the absence of an invoice and yet in November the lack of an invoice had caused it to default in paying rentals. It is the obligation of a tenant to pay its rental when due; and unless the rental has been altered the tenant is duty bound to tender such rental as appears reasonable. To my mind, that would be the last amount agreed upon by the parties as constituting fair rental.

The applicant clearly breached the lease agreement by failing to pay rental for November 2008....,.

The applicant claims that he did not see the summons wherein the respondent was claiming damages and only became aware of the suit after he was served with a writ of execution.

The applicant in this matter seeks an order in the following terms:

“It is ordered that:-

(1) Application be and is hereby granted;

(2) Rescission of judgment in case number HC2168/07 be and is hereby granted;

(3) Applicant is authorized to proceed to request for a pre-trial conference date within ten (10) days of this order;

(4) No order as to costs.”

The applicant and his legal practitioner failed to arrive on time for a pre-trial conference which he had requested. He did arrive at his legal practitioner's office at 0830 hours. His legal practitioner advised him that the pre-trial conference was schedule for 1000 hours in the judges' chambers. The legal practitioner filed an affidavit wherein he conceded his error and accepted that the fault was entirely his. He erroneously believed that the pre-trial conference was at 1000 hours instead of an hour earlier. He and his client got to court at 0940 hours only to be told that they were late. The matter had been disposed of at 0900 hours and a judgment was granted against him in default.

This explanation, in my view, seems reasonable and acceptable. There can be no doubt that the applicant wanted to prosecute his case except that his legal practitioner made an error. He takes the blame for it.

The applicant seems to have a defence on the question of prescription; he alleged irregularities in the manner the power of attorney was executed; he similarly alleged further irregularities about the alleged donation to the first respondent.

The matter deserves to be properly ventilated at a trial.

This is an application for the rescission of two default judgments in case number HC1460/07 and case number HC907/08 with costs being jointly and severally borne by the first, second and third respondents, one paying the others to be absolved.

The circumstances giving rise to these proceedings are these.

On 22 March 2007, the parties signed a Memorandum of Agreement. The first respondent, Mfanukhona Phiri…, and his wife purchased House Number 6780 Nkulumane, Bulawayo…, from the second respondent, David Mpofu, and his wife, the third respondent. David Mpofu was allegedly represented by his wife. The couple was acting through an agent known as Defiant Hardware and Construction which prepared the Agreement of Sale for the parties. Under the mode of payment in clause 3, the Agreement of Sale reflects that a cash payment of $50 million (fifty million dollars) had been paid. Clause 6 stipulated that the Seller would give vacant possession to the Buyer upon three months' notice since she had received full payment. Clause 8 stipulated that transfer would be initiated as soon as possible.

But trouble started on 25 June 2007 when Mfanukhona Phiri approached David Mpofu's wife seeking vacant possession of the property.

The wife, who was still resident at the property, would simply not co-operate. Mfanukhona Phiri went to Defiant Hardware and Construction – the Sellers' agent - which was not helpful either. While the Sellers alleged that they had not received their purchase price from their agent, the agent alleged that the Agreement of Sale was illegal because the equivalent of the $50 million was paid in South African rands.  Instead, the agent suggested that Mfanukhona Phiri should accept another Stand. 

This is difficult to follow.

On realizing that the Sellers were not going to let them take vacant occupation of the property, Mfanukhona Phiri launched a court application on 3 July 2007 in case number HC1460/07 wherein he sought an order directing David Mpofu to attend at the relevant Housing Office and sign all the necessary documents to effect change of name in respect of the property to that of Mfanukhona Phiri within seven (7) days of the order, failing which the Deputy Sheriff would do so in his place and stead to give effect of such transfer.

The application was served, in respect of both respondents, on 24 July 2007, by handing copies to their daughter, Dalphin, who was found at the property. As stated earlier in this judgment, the wife was still resident at the property. There was proper service of the application upon them by the Deputy Sheriff but they did not oppose it resulting in the court entering a default judgment in favour of Mfanukhona Phiri on 30 August 2007.

Since David Mpofu did not comply with the court order the Deputy Sheriff acted in his place. The City of Bulawayo granted its consent for cession of right, title and interest in the property to Mfanukhona Phiri on 20 November 2007 in terms of this court's order in case number HC1460/07. The consent is filed of record as annexure “B” in case number HC907/08.

The Mpofus were not only unwilling to vacate the property but they also were busy trying to find another buyer for the same property. They attempted to sell it to one Mlamleli Mswazi who tried to obtain this court's order against them, but, fortuitously, Mfanukhona Phiri got wind of what was about to happen and intervened to stop the proceedings.

In light of all this, Mfanukhona Phiri filed a court application, in case number HC907/08, on 29 April 2008, wherein he sought an order that the Mpofus be ordered to vacate the said property within seven (7) days of the court order failing which the Deputy Sheriff would be authorized to carry out their eviction from the property and all those who claimed through them.

According to the return of service filed of record, copies of the application were served on 13 May 2008 by handing them to a Ms. Ndlovu who was found at the house. The parties to the contest were Mfanukhona Phiri and David Mpofu and his wife Takatso Mpofu.

The couple did not file any opposing papers. The result was that an order was granted by default on 26 June 2008.

A month later, on 25 July 2008, the Mpofus and all those who were claiming through them were evicted from the house. Amongst those claiming through them was Mr. Timothy Sijiye, the present applicant for the rescission of the two judgments to which he was not a party.

The applicant, Mr. Timothy Sijiye…, does not state in his draft order what is to happen in the event of the court granting him the order he seeks. The draft order is couched thus-

“It is ordered:-

1. That judgment granted in case number HC1460/07 be and is hereby rescinded.

2. That judgment granted in case number HC907/08 be and is hereby set aside.

3. That costs be borne by the 1^st, 2^nd and 3^rd respondents jointly and severally, the one paying the others to be absolved.”

In Case No. HC1951/09, the respondent issued summons against the applicant seeking, among other things, the cancellation of a lease agreement and the eviction of the respondent and all those claiming through her from premises known as No.2 Celrose Flats, 3^rd Avenue and J. Tongogara Street, Bulawayo.

The basis for that was that the applicant had neglected to pay rentals in terms of a rent order issued by the Rent Board resulting in her falling in arrears and that she was subletting the premises without the respondents consent in breach of the lease agreement between the parties. The applicant, then represented by Cheda and Partners of Bulawayo, contested that action and in her plea filed of record, other than making a bare denial that she was subletting the premises, she only raised procedural objections which did not address the merits of the matter. In particular, she did not deny that she was in rent arrears.

When the matter was set down for pre-trial conference on 16 November 2010, the applicant and her legal practitioner defaulted despite being served with a notice to attend on 5 November 2010. As a result, her defence was struck out and the respondent was granted leave to set down the matter on the unopposed roll for finalisation. This the respondent did on 13 January 2011, almost two months after the applicant's defence was struck out. The applicant had done absolutely nothing about her default at the pre-trial conference.

On 13 January 2011, default judgment was granted for the cancellation of the lease agreement, eviction of the applicant, payment of arrear rentals and costs of suit. That notwithstanding, it was not until 16 February 2011, more than one month after judgment was entered, that the applicant filed her application for rescission of judgment under case number HC436/11. On that same date, she filed an urgent application in case number 450/11 for a stay of execution pending the hearing of the rescission of judgment application. A provisional order was granted in her favour to that effect on 17 February 2011. Both applications have been opposed by the respondent and were consolidated for purposes of argument.

The applicant, who appeared in person, argued that she was not in wilful default because her then legal practitioners', Cheda and Partners, had written a letter to her advising her of the pre trial conference set for 16 November 2010 but their letter had not been posted to her. She said, she “could not get a satisfactory answer as to why” this was so. It is for that reason that she was unable to attend court.

The applicant has not proffered any explanation why her legal practitioner also defaulted at the pre-trial conference.

Regarding the merits of the matter, she submitted that she should not be evicted because she is a family person who has nowhere else to go. She stated that she was being discriminated by the agent of the landlord, Knight Frank, on tribal grounds. She conceded that she was in rent arrears but said that this was occasioned by the refusal of Knight Frank to accept her tender of monthly rentals in the sum of US$55= in terms of the rent order as they insisted on her paying US$70= per month. She argued that she had been forced to pay the rentals into the trust account of her own legal practitioners in the hope that they would forward the money to the respondent. She produced an acknowledgement of receipt issued by Cheda and Partners showing that she had been refunded a sum of US$270= on 16 February 2011 when they ceased to act on her behalf. She also produced two receipts issued by Knight Frank for US$105= on 30 May 2011 and 6 July 2011.

Given that these documents were issued long after the eviction summons was issued on 24 November 2009 nothing turns from them as they do not show that the applicant was not in arrears when litigation commenced. Against that is the correspondence between the applicant's then legal practitioners, Cheda and Partners, and the respondent's legal practitioners showing that the applicant admitted liability to pay the rental of US$55= per month as far back as March 2010. She was advised that the arrears should be paid to Danziger and Partners, the respondent's legal practitioners. She did not pay anything despite at one stage offering to clear the arrears in 14 days time from 18 March 2010.

Regarding the claim that the applicant was subletting the premises, the respondent filed a document signed by one Lungile Ndlovu which reads in part as follows:

“TO WHOM IT MAY CONCERN

FLAT 12 CELROSE MANSIONS

We the following students are subleasing the flat from Rejoice Sibanda

(a) Lungile Ndlovu         signed

                                    Signature

(b) Anitah Ncube           Not signed

                                    Signature

As students we are paying R700= or US$70=. We agree to vacate premises on the 31^st August 2009.”

The applicant countered this by producing notes written by Lungile Ndlovu and Anitah Ncube disowning the above document. Anitah Ncube claimed that she had started staying at the flat because the applicant was her aunt but she was not subleasing. Lungile Ndlovu said she was invited by Anitah Ncube who was related to the applicant. Surprisingly, in her oral submissions in court, the applicant claimed that it was Lungile Ndlovu who was her niece.

Clearly, therefore, the applicant was not being truthful and did not disprove the claim that she was subletting.

In terms of Rule 63(2) of the High Court of Zimbabwe Rules, 1971, a party seeking rescission of a judgment given in default must show that there is “good and sufficient cause” to do so. The factors which a court will take into account in determining whether an applicant for rescission has discharged that onus are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits.

These factors must be considered in conjunction with one another and with the application as a whole. Stockill v Griffiths 1992 (2) ZLR 172 (S)…,. Roland and Another v McDonnell 1986 (2) ZLR 216 (S)….,; Songere v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…; and Howera v Mudzingwa and Others HB123-10.

In my view, not only has the applicant failed to give a good explanation for the default, she has also dismally failed to show any bona fide defence to the claim. She hopelessly breached the lease agreement and cannot come back asking for the indulgency of a rescission of judgment. This is a classic case of an abuse of process by a litigant who has shown no shame whatsoever even after being caught subletting the premises. Her conduct deserves to be visited with costs at an enhanced scale.

The application for rescission of judgment cannot succeed….,. In the result, I make the following order:

(1) The application for rescission of judgment in Case No. HC436/11 is hereby dismissed.

The applicants herein seek the rescission of a judgment granted against them in default on 14 June 2010 as a result of their failure to attend a pre-trial conference set down before MTSHIYA J.

The background to the dispute is as follows:

On 1 January 2009 the first applicant and the respondent concluded an agreement for the lease by the first applicant of the respondent's premises, specifically, Third Floor, Batanai Gardens, situate in Jason Moyo Avenue, Harare. The agreed rental was $1,541=94 per month and the first applicant also agreed to pay operating costs.  

It is common cause that a problem arose between the first applicant and the respondent in relation to the payment of rentals and operating costs. Summons was issued against both applicants and served on the second applicant on 18 January 2009. The second applicant entered an appearance to defend for both but was subsequently advised by the respondent's legal practitioners of the defect in the appearance entered on behalf of the first applicant. He engaged legal practitioners who filed an appearance out of time. An attempt to have the automatic bar operating against the first applicant was dismissed by this court. The first applicant, had, however, gone on to file a plea which pleading is of no effect due to the bar.

The matter had, however, proceeded to the pre-trial stage. This pre-trial conference was set down before MTSHIYA J in chambers on 14 June 2010. The second applicant asserts, in his founding affidavit, that neither he nor the first applicant were aware of the date of set down.

The notice of set down was served at the offices of the legal practitioners' then acting for the applicants. The second applicant has attached affidavits from Thodhlanga and one I. Mandi. Nothing much turns on the affidavit of Thodhlanga. I. Mandi is employed as a receptionist by Phiri & Associates, a firm of legal practitioners which shares the reception area with Thodhlanga & Associates, the applicants' former legal practitioners. He confirms having received the Notice of Set down for the pre-trial conference of 14 June 2010. He states that at the time the receptionist for Thodhlanga & Associates was not at her desk but he had placed the notice on her desk, directly in front of her chair so that she would see it the minute she walked in. She was not called upon to depose to an affidavit as she is the only person who can state what happened to the notice after it was received. There is, in my view, evidence that the applicants' legal practitioners were negligent.

Should this court, however, be persuaded to accept the explanation of the default being advanced by the applicants?

In S v McNab 1986 (2) ZLR (S) DUMBUTSHENA CJ considered that a party should not escape punishment from the consequence that befall him as a result of the negligence of his client. The learned CHIEF JUSTICE had this to say -

“In my view, clients should, in such cases, suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Saloojee & Anor NNO v Minister of Community Development supra at 141 C-E when he said:

'There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are. (Cf Hepworths Ltd v Thornloe & Clarkson Ltd 1922 TPD 336; Kingsborough Town Council v Thirlwell & Anor 1957 (4) SA 533 (N).)'

I have dwelt at length on this point because it is my opinion that laxity on the part of the court in dealing with non-observance of the Rules will encourage some legal practitioners to disregard the Rules of Court to the detriment of the good administration of justice.”

I. Mandi's affidavit puts the blame squarely at the door of Thodhlanga & Associates. The notice was on the receptionist's desk in such a way that she could not have failed to see it. The question that has to be answered by the applicants is; what happened to the Notice? They have not found it necessary to answer this question and yet the answer thereto, in my view, would be the deciding factor as to whether or not the explanation is reasonable…,.

I turn next to the bona fides of the application for rescission of judgment.

The first applicant concedes that it is barred from proffering a defence. As regards the second applicant, his contention is that the order does not reflect that the first applicant had vacated the premises on 26 February 2010 - which is conceded by the respondent in a letter dated 3 March 2010. Despite this order sought by the respondent and granted on 25 August 2010 the applicants are ordered to pay holding over damages, albeit from 29 September 2009, collection commission and costs on a legal practitioner client scale. The respondent's legal practitioners should have ensured that their claim, as presented to the court at the time judgment was sought, reflected the correct position between the parties. The order granted as at 25 August 2009 clearly was out of sync with the factual position. The order also required the first applicant to pay operating costs from 29 September 2009 to date of ejectment. This was not correct.

The respondent has attached to its papers certain documents which are supposed to prove the extent of the operating costs owed. The applicants contend that the respondent was unable, in its opposing affidavit, to state how much the first applicant was obliged to pay every month as operating costs. In paragraph 5 of the opposing affidavit the respondent boldly states -

“In terms of clause 6 of the lease agreement the first applicant was obliged to pay operating costs.”

Clause 6 details the services that result in the obligation to pay operating costs on the part of a tenant. No amounts are mentioned. The transaction scheduled attached to the papers do not specify in detail the operation costs and the respondent has made no attempt to explain the schedules.

I therefore accept the contention by the first applicant that the respondent should have responded to the request for further particulars. I find that the application is bona fides.

The claim for operating costs, in my view, is not established on the papers before me and the contention by the second applicant that he has a bona fide defence on the merits with prospects of success is borne out by the respondent's own inability to explain the operating costs.

In the premises, it is my view that the second applicant has established good and sufficient cause for the judgment under case number HC195/10 of 25 August 2010 to be set aside.

This matter has a chequered history as evinced by the number of cross-reference files. But for the determination of the issues before me, the salient facts are the following.

The parties were husband and wife who married each other on 1 March 1996. When the parties developed irreconcilable differences, the wife (“the plaintiff”) instituted divorce proceedings against the husband (“the defendant”) on 7 July 2006. The defendant entered appearance to defend and filed his plea. The defendant failed to file discovery documents timeously resulting in the plaintiff applying and was granted an order compelling him to do so within five (5) days failing which his defence would be struck off and she would be granted leave to set down the matter on the unopposed roll without notice to him. He was unable to comply and the matter was set down on the unopposed roll. A default judgment granting the divorce and ancillary relief was granted in favour of the plaintiff on 4 December 2008.  On 11 June 2010, under case number HB45-10, KAMOCHA J rescinded the said judgment, in part, in the following terms:

“It is ordered:

(1) That the order of this honourable court, made on the 4^th December 2008, be rescinded and the following substituted:

(a) A decree of divorce be and is hereby granted to the plaintiff.

(b) The parties proceed on trial of the division of matrimonial assets and ancillary relief.

(c) The parties be and are hereby permitted to make discovery in terms of the Rules of Court, with the defendant having to make discovery within 5 days of the uplifting of this order.

(d) Henceforth, the parties shall proceed in strict compliance with the Rules.

(2) The costs of this application shall be costs in the causes in the main action.”

It is clear that the defendant managed to have the matter re-opened simply to enable him to challenge the issue of the share that the plaintiff had claimed in respect of matrimonial house and ancillary relief.

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 Advocate Nkiwane's absence. At one stage Advocate 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, the 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 Advocate Nkiwane could not effect discovery due to other commitments in Namibia. He failed to make adequate arrangements.

The respondent argued that the applicant was bent on frustrating the finalization of this matter without giving specific incidents showing such conduct.

It was further argued that the applicant's degree of non-compliance with the Rules was gross. That is untenable in the light of the fact that the applicant only learnt about the order on 14 May 2009 and filed his application for rescission on 21 May 2009.

After hearing arguments from both legal practitioners I dismissed the application and indicated that my reasons would follow in due course. These are they.

The applicant in this matter seeks an order in the following terms:-

“It is hereby ordered that:-

1. The default judgment granted by this honourable court on the 13th of March 2008 be and is hereby rescinded;

2. The applicant be and is hereby given leave to file heads of argument within fourteen days from date of this order; and

3. Costs be costs in the main cause.”

The default judgment of 13 March 2008 was granted pursuant to a court order of 25 February 2008 which granted the present respondent leave to set down her matter on the unopposed roll. She then was granted the following order -

“It is ordered that:-

1. The applicant be and is hereby declared to be the legal owner of Stand Number 1346 Bulawayo Township also known as Number 53, 15th Avenue, Bulawayo;

2. The respondent be and is hereby ordered to vacate the restaurant and flat she is occupying at Stand Number 1346 Bulawayo Township, also known as Number 53, 15th Avenue, Bulawayo within 5 days of service of this order failing which the Deputy Sheriff, Bulawayo be and is hereby ordered to evict the respondent and all those claiming through her and give vacant possession to the applicant or her agents; and

3. The respondent be and is hereby ordered to pay costs of suit on an attorney-client scale for this application.”

When the applicant was about to execute the above default judgment the respondent applied for and was granted a provisional order staying the execution of the judgment on 17 April 2008 pending the determination of the present application for rescission for judgment which had been filed the previous day – 16 April 2008.

All that the applicant is trying to do in this case is to have this court set aside its order of 15 January 2009 without utilizing the application for rescission procedure. That would be incompetent as the court does not have jurisdiction to review its own decisions other than by way of application for rescission.

When the first and second respondents attempted to execute the judgment, the applicant resisted and then made an urgent ex parte application for a stay of execution and rescission of the order of 11 May 2005.

This application was filed as case number HC1047/05 on 9 July 2005 (although the Registrar's stamp is erroneously dated 9 July 2007). The provisional order was granted by consent, with minor amendments, on 23 August 2005.

The first and second respondents opposed the confirmation of the provisional order and the matter proceeded as an opposed court application only to be subsequently set down for argument on 18 July 2008.

In that application, the applicant had argued that he had not wilfully defaulted in supplying the particulars requested as he had struggled to uplift the High Court judgment from Harare only managing to supply an incomplete judgment. In that application, he did not set out what defence he had against the first and second respondents' claim as would persuade the court to grant him a reprieve.

Be that as it may, both the applicant and his counsel failed to appear in court on 18 July 2008 and judgment was granted in default against him effectively discharging the provisional order of 23 August 2005 and directing the applicant's eviction from the house. In pursuance of that order, the first and second respondents succeeded in evicting the applicant from the house on fools' day, the first day of April 2009.

As things stand now, not only are the first and second respondents the registered owners of the house, they have also taken occupation after the eviction of the applicant.

Stung by the eviction, the applicant was not to be deterred by anything and after delaying by some months, he filed an application for condonation of the late filing of an application for the rescission of the judgment issued on 18 July 2008. This application was filed as HC1063/09 on 8 July 2009.

It was granted on 20 October 2009 paving the way for the applicant to file this application for rescission of judgment on 2 November 2009.

In this application, the applicant alleges that while he was aware of the court date and did discuss the matter with his then legal practitioner, Mr Magodora, in preparation for court, he had not attended court because his counsel advised him that it was not necessary for him to be in attendance. His counsel assured him that he would appear and argue the matter on his behalf, especially as the applicant had paid him all that he demanded for him to do so.

He is unable to explain why Mr Magodora defaulted in court and the erstwhile legal practitioner has not been invited to explain himself. According to the applicant, he has become hostile to the extent of refusing to release his file to him to instruct another legal practitioner. This has caused the applicant to report Mr Magodora to the Law Society of Zimbabwe for unprofessional conduct. Not much information has been disclosed about this complaint to the Law Society of Zimbabwe…..,.

Whatever the circumstance, the applicant argues that he was not in wilful default.

Regarding the bona fides of his defence, he emphatically argues that having purchased the house much earlier than the first and second respondents, he holds a superior claim to it than the two by virtue of the law relating to double sales. Quite belatedly, as if by afterthought, in his answering affidavit, the applicant claims that the first and second respondents are not innocent purchasers because they ought to have known that the house had been bought by him before they purported to purchase it. He fortifies this argument by another belated one, which only appears in his heads of argument, namely that he had resisted an attempt by the first and second respondents to install a telephone line at the house. In his view, this should have warned them of the applicant's claim to the house. Counsel for the applicant developed that point further that it did not make sense for the first and second respondents to buy a house without viewing it. In his view, this showed that they were aware of the applicant's right to the house.

I am not persuaded by that argument.

The applicant then faintly alludes to the judgment of HUNGWE J in the interpleader proceedings where he successfully repelled an attempt by a third party to attach the house in execution because he had a claim to the house.

If I were to accede to the applicant's prayer and rescind the judgment of 18 July 2008 this will only take the applicant to a position where he would pursue his own urgent application for a stay of execution and rescission of the judgment made on 11 May 2005. It will still leave him with the task of satisfying the court, on another day, that he has good and sufficient reasons for his default which led to that order being granted.

If, by some feat of luck, the applicant were to succeed in rescinding the second order standing against him, that of 11 May 2005, it will leave him free to defend the eviction summons issued under case number HC1270/03. In that matter, he only filed a plea in which he sought to rely on Justice HUNGWE's interpleader judgment. He did not file a counter claim for transfer of the house to himself. In fact, the applicant has not commenced any litigation claiming transfer of the house to himself although he has known of the first and second respondent's ownership rights, at least from the time he received summons in case number HC1270/03 way back in June 2003 - more than seven years ago. He will therefore still have to grapple with the provisions of section 15(d) of the Prescription Act [Chapter 8:11]. The argument by counsel for the applicant that the applicant's rights can still be determined in the eviction application, even without a counter application, is without merit.

In terms of Rule 63 of the High Court Rules, 1971:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment; for the judgment to be set aside.

(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action; on such terms as to costs and otherwise as the court considers just.”

I do not propose to be drawn into the controversy surrounding the interpretation of subrule (1) at this stage because I am of the view that this matter is capable of resolution without reference to that provision.  I will therefore ignore it for now.

Rule 63(2) was discussed in Stockill v Griffiths 1992 (1) ZLR 172 (S)….., where GUBBAY CJ said -

“The factors which a court will take into account in determining whether an application for rescission has discharged the onus of proving 'good and sufficient cause', as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not reported); Roland and Another v McDonnell 1986 (2) ZLR 216 (S) at 226 E – H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211 C – F. They are;

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success. 

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

See also Hutchison and Another NNO v Logan 2001 (2) ZLR (1) (H).

The explanation given for failing to appear in court is that the legal practitioner engaged to do so did not turn up without giving any reason and has held on to the applicant's file up to now although he had promised to appear. The applicant was complicite because after such assurance he blissfully stood akimbo without even enquiring of the outcome of the hearing from 18 July 2008 until he was awakened by an eviction writ in April 2009 - almost a year later. This, coupled with the fact that the legal practitioner in question has not been invited to explain himself raises questions and is far from being a satisfactory explanation for the default. It is simply not reasonable.

Looking at the fact that not only have the first and second respondents taken transfer, in fact, they did that almost eight (8) years ago, but also that the applicant was evicted from the house 1 ½ years ago, the bona fides of the application to rescind the judgment are put to the sword.

In addition, the applicant's defence to the eviction is as shaky as it is non-existent. In his plea to the summons action the applicant sought to rely on Justice HUNGWE's judgment as declaring him the owner of the house.

I agree with counsel for the first and second respondents that that the defence is demonstrably not available to the applicant because Justice HUNGWE was not adjudicating over ownership of the house but merely interpleader proceedings and declared that the house was not executable at the instance of that third party as the applicant was “the holder of the better claim”….,. 

Against the first and second respondents that judgment cannot help the applicant….,.

I therefore come to the inescapable conclusion that the applicant has not discharged the onus resting upon him in terms of Rule 63(2) to show “good and sufficient cause” to rescind the judgment of this court.

Even if I am wrong in that conclusion, the applicant still faces the insurmountable task of unlocking the unresolved and immense practical problems posed by the case of Sibanda v Ntini 2002 (1) ZLR 254 (S) where, in interpreting Rule 63(1), the Supreme Court ruled that an application for rescission of judgment must be set down within a month.

If one follows that judgment, the applicant is out of time and he has not sought condonation. In the result, I make the following order:

1. That the application for rescission of judgment in case number HC1729/09 be and is hereby dismissed.