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.

This is an appeal against the whole judgment of the Harare Magistrates Court delivered on 28 October 2011 in which the Magistrates Court set aside a default judgment which had been granted in the appellant's favour.

The facts giving rise to the appeal can be summarised as follows:-

The appellant, on 25 May 2011, filed a court application in the Magistrates Court seeking payment of US$18,716=06 together with interest thereon at the rate of ten percent (10%) per annum from 20 April 2011 to date of payment in full together with costs of suit on a higher scale. The cause of action is based on an acknowledgement of debt. In terms of the acknowledgement of debt, signed by the respondent and duly witnessed by the appellant on 13 April 2011, the respondent agreed to pay the amount owed of US$18,716=06 on the following terms;-

(i) Payment of US$3,000= by 29 April 2011; and

(ii) Thereafter five (5) months instalments of US$3,000= from 31 May 2011 to 30 September 2011; and

(iii) The last instalment of $716=06 by 20 October 2011.

The acknowledgement of debt was attached to the appellant's founding affidavit in the court a quo. The respondent did not comply with the provisions of the acknowledgement of debt - the whole debt became due….,.

The appellant, on 4 May 2011, wrote a letter of demand to the respondent which letter illicited no response hence the court application.

The record of proceedings in the court a quo shows that the respondent was served with the court application on 12 May 2011 and the matter was set down for hearing on 24 May 2011. The respondent was duly served with the notice of hearing and on 24 May 2011 both the appellant and the respondent attended court. As per the record of proceedings in the court a quo, the respondent sought a postponement of the hearing to enable him to file opposing papers. The matter was postponed to 1 June 2011. However, on 1 June 2011 the respondent did not attend court and the appellant successfully applied for a default judgment.

On 13 August 2011, the respondent approached the court a quo seeking the rescission of the default judgment basically on two grounds. Firstly, the respondent contended that he was not in wilful default on 1 June 2011 as he was not aware of the court dates, either of 24 May 2011 or 1 June 2011. In fact, the respondent submitted that he had not been served at all with both the court application and the notice of hearing. Instead, the respondent submitted that the proof of such service upon him filed of record was manufactured by the appellant.

Secondly, the respondent contented that on the merits he has a bona fide defence. The respondent submitted that the appellant was his erstwhile legal practitioner and that the alleged debt arises from the legal services rendered by the appellant to the respondent. The respondent, however, contends that the amount claimed of US$18,716=06 is both excessive and unjustified. The respondent puts into issue how the total figure was calculated and stated that he was not served with either the itemised or taxed bill of costs. As regards the acknowledgement of debt, which is the basis of the cause of action, the respondent denied signing the acknowledgement of debt and alleged that the appellant had forged the respondent's signature.

All in all, the respondent, in seeking the rescission of the default judgment, submitted that the appellant had improperly obtained the judgment against him and that on the basis of such a judgment the respondent's property was at the risk of being attached.

The application for rescission of default judgment was opposed by the appellant. In doing so, the appellant took the following points in limine;-

a) That the application for rescission of judgment was made out of time.

b) That the respondent had not complied with the requirements of order 30 Rule 1(3) of the Magistrates Court (Civil) Rules 1980 which relates to payment into court.

c) That the respondent had approached the court with dirty hands as his founding affidavit in the court a quo is replete with outright falsehoods designed to mislead the court.

As regards the merits of the application for rescission of judgment, the appellant submitted that the respondent was in wilful default and has no bona fide defence as the respondent had had deliberately not attended court on 1 June 2011 and that the cause of action is based on the acknowledgement of debt.

The court a quo was apparently persuaded by the respondent and granted the application for rescission of judgment. In brief, the court a quo dismissed the points in limine raised by the appellant and proceeded to find that the respondent was not in wilful default and that he had a bona fide defence to the claim. It may be insightful at this stage to quote the reasons given by the learned magistrate as the judgment is very brief;-

“RULING

This is an application for rescission of judgment wherein the appellant is stating that he was not in wilful default and has no bona fide defence on the merits of the main application. The application is opposed and both parties filed comprehensive heads of argument in support of their respective positions regarding this application.

After perusing and recording the papers filed of record it is this court's finding that the points inlimine raised by the respondent appear to be technical issues, which, if considered by the court as this juncture, would result in the premature life of an otherwise arguable case on merits. As such the points in limine are dismissed.

On the merits of the application for rescission of judgment, the court felt persuaded and bound by the decision in the case of Roland & Anor vs Mcdonell 1986 (2) ZLR 216 (S) where it was held that the court should consider the defendant's explanation for his default, the bona fides of the application to rescind the judgment and the bona fides of the defence on the merits. It was held, further, that the court should also consider the public question of the need to reach finality in litigation.

The respondent has explained his reasons for the default which indeed appear to show bona fides of his application. His challenge to the authenticity of the acknowledgement of debt and his denial of the indebtedness appear to show presence or otherwise of some material dispute of facts which require the matter to be heard on the merits and brought to finality in the spirit of the public policy question of the need to reach finality in litigation.

As a result of the foregoing, the application for rescission of judgment succeeds.”

This reasoning by the learned magistrate did not find favour with the appellant who proceed to file a notice of appeal with the court on 1 November 2011. The grounds of appeal are quite lengthy but it is prudent to set out all of them as couched by the appellant.

“GROUNDS OF APPEAL

1. The court a quo erred on a point in law in making a finding to the effect that the three points raised in limine by the appellant “appear to be technical issues which if considered by the court at this juncture would result in the premature life (sic) of an otherwise arguable case on the merits.” The court a quo fundamentally erred in dismissing the three points raised in limine even considering the same as it was enjoined to do at law.

2. The court a quo erred on a point in law and fact in failing to find that;-

a) The respondent (appellant in the court application for rescission of default judgment in the court a quo) had approached the Magistrates Court with dirty hands and for that reason to deny him audience.

b) The purported application for rescission of default judgment was filed well out of time without a formal application for condonation of extension of time and that therefore the application was fatally defective and improperly before the court.

c) As the application for rescission of default judgment was set down in contravention of 030 Rule 1(3) of the Magistrates (Court) Civil Rules, 1980, it was improperly set down.

1. On the merits, the court a quo erred on a point of law and fundamentally misdirected itself in failing to apply 030 Rule 2(1) of the Magistrates Court (Civil) Rules, 1980 in arriving at its decision to grant an order rescinding the default judgment.

2. The court a quo erred on a point of law and fact by failing to find that on the facts of the matter before it, the respondent was in wilful default.

3. The court a quo fundamentally erred on a point of law in failing to distinguish the effect of wilful default in terms of 030 Rule 2(1) of the Magistrates Court (Civil) Rules, 1980 and Rule 63 of the High Court Rules upon which reliance was placed through the case law authority cited in which Rule 63 was in issue and not 030 Rule 2(1) of the Magistrates Court (Civil) Rules 1980.

4. In any event, the court a quo erred in finding that the respondent had shown good and sufficient cause to warrant granting of a rescinding of the default judgment when in fact the respondent had dismally failed to demonstrate good and sufficient cause and his defence was based on downright falsehoods which had been proved to be such on the evidence before the court.

5. The court a quo therefore erred in making a finding to the effect that the respondent's explanation for the default was bona fide when in fact it was palpably false; that the respondent's challenge of the authenticity of the acknowledgement of debt and his indebtedness “appear to show the presence or otherwise (sic) of some material disputes of facts” when in fact no such material dispute existed in light of the palpable falsehoods the respondent relied upon as was clear on the evidence before the court.”

Lastly, I turn to the merits of the appeal.

It is clear that the court a quo erred both on a point of law and fact in failing to find that on the facts of the matter before it the respondent was in wilful default and on that basis alone decline to grant the rescission of judgment.

Order 30 Rule 2(1) of the Magistrates Court (Civil) Rules provides as follows;-

“(1) The court may on hearing of any application in terms of Rule 1; unless if it proved that the applicant was in wilful default:-

a) Rescind or vary the judgment in question; and

b) Give such directions and extensions of time as necessary for the further conduct of the action or application.”

In terms of Order 30 Rule 2(1) of the Magistrates Court (Civil) Rules, 1980 wilful default therefore disqualifies an applicant from obtaining rescission of default judgment.

Karimazondo v Standard Chartered Bank of Zimbabwe 1995 (2) ZLR 404…,.

In the case of Zimbabwe Banking Corporation v Masendeke1995 (1) ZLR 400 McNALLY JA succintly explains what constitutes wilful default as follows;-

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

I have dealt at length with the aspect on how the respondent lied about his failure to attend court. The inference to be drawn is that the respondent was untruthful in that regard because he knew he had no good cause not to attend court. The court a quo misdirected itself in finding that the respondent was not in wilful default.

It may not be necessary once a finding of fact is made, that the respondent was in wilful default, to consider the second requirement of “the grounds of defence to the action or proceedings in which the judgment was given or of the objective of objection to the judgment.”

However, in casu, the respondent has no bona fide defence to the action. The cause of action is based on an acknowledgement of debt. Initially, the respondent denied signing the acknowledgement of debt, later he changed the story and alleged that he disputes the amount owed as the bill of costs was not taxed. The respondent did not, in that respect, show good cause to warrant the granting of an order rescinding the default judgment….,.

On the merits of the appeal, it is clear that the court a quo misdirected itself…., that is, in failing to deal with the three points raised in limine and failure to apply the law in finding that the respondent was not in wilful default and has a bona fide defence to the action. Consequently, the appeal should succeed with costs and the order of the court a quo be set aside in its entirety.

Accordingly, I make the following order;-

1. The appeal is allowed.

2. The order granted by the court a quo is set aside in its entirety.

3. The following order is hereby substituted in its stead.

The application for rescission of default judgment be and is hereby dismissed with costs.

Rule 63 of the High Court Rules of 1971 provides as follows:

“63

(1) Any party against whom judgment has been given in default, whether under the 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 subr (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.”

It is clear that in order to set aside a default judgment under Rule 63 the test is that the court should be satisfied that there is good and sufficient cause. In the case of Dewaras Farm (Pvt) Ltd & Ors v Zimbank 1998 (1) ZLR 368 (S)…,  the Supreme Court deliberated on what constitutes good and sufficient cause to warrant rescission of a default judgment in terms of Rule 63. While it is not possible to give an exhaustive definition or list of factors of what constitute good and sufficient cause to justify rescission of default judgment a number of factors have been given and these include, inter alia, the explanation for the default, the bona fides of the applicant and the prima facie strength of the case. The court, in exercising its powers imbued in Rule 63 enjoys very wide discretion and should look into the circumstances of each case as regards what constitute good and sufficient cause. In fact, it has been held in some cases that they may still be good and sufficient cause to warrant rescission of default judgment even in circumstances where it is shown that a party was in wilful default although it is also accepted that wilful default generally denotes absence of good and sufficient cause.

In the case of Zimbabwe Banking Corporation v Masendeke 1995 (1) ZLR 400 McNALLY JA explains what constitutes wilful default as follows:

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

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

I am satisfied that if the number of issues raised by the applicant are properly considered the inescapable conclusion is that there is good and sufficient cause to set aside the default judgment granted.

I now deal with all these issues.

On 29 April 2010, and in case number HC2816/10, the applicant instituted action proceedings against the respondents claiming the sum of GBP39,848=, interest on that amount at the prescribed rate from date of summons to date of payment in full and costs of suit on a legal practitioner client scale and collection commission. The defendants filed a Special Plea and Exception. There was no response to the Special Plea and Exception. The defendants proceeded to set the matter down on the unopposed roll. On 11 August 2010 the Special Plea and Exception were upheld and the plaintiff's claim was dismissed with costs.

On 12 October 2010, and in HC7205/10, the first respondent instituted action proceedings against the applicant claiming delivery of the original Deed of Transfer Number 12197/01 and costs of suit. The applicant entered appearance to defend. On 2 February 2011, the first respondent filed a court application for summary judgment. On 16 February 2011, the applicant filed a “Respondent's Opposing Affidavit.” On the same date, the first respondent's legal practitioners, in response to a letter from the applicant's legal practitioners, advised the applicant's legal practitioners on the procedural problems in relation to the summary judgment proceedings. There was no response from the applicant's legal practitioners. The first respondent proceeded to set the matter down on the unopposed roll seeking an order to have the 'Respondent's Opposing Affidavit' struck off of the record and an order for summary judgment. The order was granted on 9 March 2011.

On 23 March 2011, the applicant then approached this court seeking that the two default judgments in HC2816/10 and HC7505/10 be set aside and that the respondents, jointly and severally pay the costs of suit. The main basis for the application is that his erstwhile legal practitioners Messrs Chigwanda Legal Practitioners had not been served with notices of set down of the hearing of both matters.

In the same application, the applicant seeks condonation of the late filing of the application for rescission of judgment in HC2816/10. His basis is that immediately upon learning about the judgment he instructed his erstwhile legal practitioners to file an application for rescission of judgment. He made several follow ups with his legal practitioners without success. He then sought the assistance of his present legal practitioners. There were further delays as he could not give full instructions to them. They later managed to get some papers from the applicant's legal practitioners. When these were furnished, his legal practitioner, Mr Bull, had to go on a short leave. He only managed to file the application after his return.

On the merits, the applicant avers that he has a sound claim for reimbursement of the money on an agreed sum of GB39,584=. He was given title deeds and keys to the first respondents' immovable property in Marlborough as security. He further avers that the summary judgment be rescinded if the court sees it fit to reinstate his money claim. This is because the subject matter of the summary judgment, namely the claim for the return of title deeds, is prescribed. There is a supporting affidavit by Mr Bull where he outlines procedural deficiencies in the money claim which, in his view, entitles the applicant's claims to be reinstated. These are:

(i) In terms of Rule 138, the exception and special plea is to be set down for hearing in accordance with the provisions of Rule 223(2).

(ii) Rule 223(2) specifically provides that, inter alia, exception, applications to strike out and other applications which are opposed (his underlining) shall be set down for hearing (a) in Harare, on a business day agreed to with the Registrar, by filing a notice of set down with the Registrar not less than six business days before the day of set down.

In respect of the summary judgment order, Mr Bull avers that the founding affidavit does not correctly state all facts as how the applicant acquired possession of the first respondent's title deed.

Secondly, he avers that the first respondent does not deny owing the entire amount and therefore it will be unfair for the court to oblige the applicant to release the title deed held as security.

Thirdly, the claim for the title deed has expired.

Lastly, the notice of set down should have been served on the applicant's legal practitioners as the applicant intended to oppose the matter because he filed what is entitled “Respondent's Opposing Affidavit.”

The application is opposed mainly on two grounds.

Firstly, it is averred that the applicant was in default and he has failed to file an explanation from his erstwhile legal practitioners as to why he did not respond to the special plea and exception and as to why they did not file an application for rescission when instructed to do so.

Secondly, on the merits, the first respondent does not owe the applicant any money but he is owed by third parties.

Mr Moyo filed a supporting affidavit to which he responded to the procedural aspects raised by Mr Bull. He avers that there is nowhere in the Rules where it is prescribed to set down, on the unopposed roll, a special plea and exception. As regards the summary judgment order, he avers that the applicant's erstwhile legal practitioners did not file an explanation as to why they did not file a proper notice of opposition. Further, they did not respond to the letter from him pointing out the irregularity….,.

Counsel for the applicant submitted that although the founding affidavit made out a case for rescission of judgment in terms of Rule 63, the undisputed facts of the matter brings the application squarely within the provisions of Rule 449. The orders in question were wrongfully sought and granted in error in the absence of the applicant.

In the money claim, the respondents set down the exception as unopposed in the erroneous view that the party upon whom an exception is served must oppose the exception in the same way an application is opposed under the Rules. In the summary judgment proceedings, the applicant filed an opposing affidavit but did not do so under cover of a notice of opposition. The respondents then set down the matter on the unopposed roll and argued that there was no notice of opposition.

Counsel for the respondents submitted that the change of direction from Rule 63 to Rule 449 comes out in the heads of argument and not in the founding affidavit. There is no mention of error in the founding affidavit. The change was mainly because the applicant had no arguable case on the merits. He further submitted an application in terms of Rule 449 must be brought expeditiously. In this matter, there were inordinate delay caused by the applicant. The respondents had to arrange for the set down of the matter. The public policy rule of finality to litigation should be applied to decline to grant the relief that the applicant seeks.

He further submits that both orders were properly granted. Regarding the money claim, the applicant restricted his arguments to the exception. There is no mention of the special plea of prescription. Therefore, the applicant concedes that there was no error. As regards the exception, the applicant did not indicate whether it opposed the exception. There was no error when the judge dealt with the matter as unopposed.

This application is an application for rescission of judgment entered against the applicants on 18 January 2011. From a reading of the facts of this matter the applicants became aware of the judgment in May and June of 2011. Rule 63(1) of the High Court Rules provides;

“Court may set aside judgment given in default;

(i) 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 to be set aside.”

The applicants counsel conceded that the application for rescission of judgment was filed without condonation from court and that before condonation was granted such application was not properly before the court.

Such concession was properly made.

It is a settled principle of law that in terms of Rule 63(1) a defendant against whom default judgment has been granted has a period of one month from the date he became aware of the judgment to apply for rescission. If he does not meet such deadline he must first make an application for condonation for the late noting of an application for such rescission. There must also be an explanation for the delay in seeking condonation. See also Viking Woodworks (Pvt) Ltd v Blue Bells Enterprises Ltd 1998 (2) ZLR 249 (S) and Ngwende (Estate) v Masomera HC1308/10….,.

On the application for rescission of judgment, it is my finding that without condonation having been granted such application was not properly before the court. See John Harries Jones v Kim Graham Strong SC67-03 where the court held that failure to obtain condonation is fatal to the proceedings….,.

This is an application for rescission of a default judgment granted in favour of the respondent against the applicants on 22 October 2009.

The applicants are husband and wife. In the applicants' founding affidavit, Mr Shumba says the respondent issued summons against them in case number HC1556/07 and then subsequently applied for summary judgment in case number HC1154/08. Judgment was handed down on the 2^nd of April 2009 and he was ordered to pay certain monies as well as vacate certain premises known as Greengables Farm, the remaining extent of subdivision B of Dunstal, Bulawayo. He says they appealed the judgment to the Supreme Court. While the appeal was pending the respondent issued fresh summons under case number HC900/09 asking for the same relief. They defended the matter and the respondent applied for summary judgment on 15 July 2009 which was also opposed. Instead of filing its heads of argument and setting down the matter, the respondent issued a notice of intention to bar on 4^th September 2009. By this time, they had no money and failed to pay the legal practitioner's fees. He goes on to say; “As a summary judgment application was pending the notice to bar was irregular.” The respondent then applied for default judgment which was granted on 22 October 2009. 

The prayer in his draft order is that the default judgment entered on 22^nd October 2009 be rescinded and the status quo ante be restored; which is to say that the first and second applicants be and are hereby restored, with immediate effect, into occupation of Greengables Farm.

The application is opposed by the respondent.

The respondent points out that the application is out of time and there is no application for condonation. He goes on to deal with the merits of the original claim and the history of the case. The respondent denies that the notice of intention to bar was irregular.

Although the applicants filed what was called a consolidated file, it was not properly consolidated, and the supporting documents for the various matters referred to are not in it. Instead, there are a number of files showing that, indeed, at some stage there were the following cases: 900/09 application for default judgment; 1112/09 application for summary judgment; 1894/12 application for rescission. To begin with, it seems the applicants are reluctant to fully inform the court regarding the factual situation in this case. The papers relevant to each of the cases referred to are incomplete. There is neither an order nor a judgment for any of the applications. There is no copy of the notice of appeal although it seems there was, at some stage, an appeal to be heard at the Supreme Court. The fate of that appeal case is not disclosed. The respondent's papers reveal that the matter proceeded to execution stage after the original judgment in case number 900/09 and that at some stage the parties attempted to negotiate a settlement. The respondent does not deny giving notice of intention to bar but does not explain the purpose for that if they had already got summary judgment. The respondent filed its heads out of time but did not seek condonation. There was no need for the procedure adopted by the respondent. The applicant did not file any supporting documents but both parties argued on the rescission of a judgment which was not filed.

A party seeking rescission against a judgment issued by a court should file such judgment. The court cannot rescind an alleged judgment whose existence and contents or order is not clear and such judgment or reasons for it are not provided.

In my view, the issue that resolves the matter is that the order sought by the applicants, which they say should have the effect of restoring them into the occupation of the respondent's property cannot be granted. It is a different judgment from the one to be rescinded. The applicants seem to mix the judgments against them. Even if the second judgment, in this case the default judgment, was irregular, the original claim against them had been proved and they have not shown that they successfully appealed against that decision.

In their rescission of judgment application, the applicants state that they were never served with a notice of set down, they were not aware that the matter was coming up for trial on 2 November 2010 and they were therefore not in wilful default.

It has also been stated, on behalf of the applicants, that even the letter offering 2 November 2010 as a trial date was not brought to their attention, regard being had to the fact that it was addressed to the respondent's legal practitioners and copied to Cheda and Partners who had no interest whatsoever in the matter. In fact, at that time their legal practitioners were Dube and Partners of Victoria Falls who used Mabhikwa, Hikwa and Nyathi Legal Practitioners as their correspondents. Cheda and Partners had no business with the matter and hence their failure to forward the letter of the Assistant Registrar to the applicants….,.

I now turn to the inquiry concerning the non-appearance of the applicants on 2 November 2010.

In terms of Rule 215, once a matter has been placed on the cause list in terms of Rule 214, the Registrar is required to allocate a date of hearing and notify the parties of the date. He is not required to do anything further and the matter will be regarded as set down for that date. In my view, to require the parties to file a consent to the set down, other than it being an extension of the rules, is undesirable as it opens up a pandora's box for parties to contest the court date on the basis that they did not consent to set down. The letter of the Assistant Registrar, to the extent that it required the parties to consent to set down creates a problem.

In terms of Rule 63(2) of the High Court Rules, if the court is satisfied, on an application, that there is good and sufficient cause to do so, it may set aside a judgment that was entered in default. What constitutes “good and sufficient cause” to rescind a judgment has been held to be:

(i) The reasonableness of the applicant's explanation;

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

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

The foregoing factors are considered in conjunction with each other. Stockill v Griffiths 1992 (1) ZLR 172 (S)…,; Hutchison and Another NNO v Logan 2001 (2) ZLR (H); Howera v Mudzingwa and Others HB123-10.

In the present case, clearly the applicants were not served with the notice of set down. They were not aware that they were required to attend court on 2 November 2010. They only became aware of the judgment long after it was granted. On the merits, they have got an arguable case. I am therefore satisfied that they have shown good and sufficient cause for the rescission of the default judgment.

Accordingly, it is ordered that:

(1) The judgment entered in default on 2 November 2010 be and is hereby rescinded.

(2) The parties are granted leave to apply for fresh dates of trial.

Counsel for the applicants argued that the applicants have given a reasonable explanation for their failure to file opposition timeously in that when the parties agreed to hold litigation in abeyance it was on the understanding that should negotiations fail and litigation was to be resumed, that would be on notice to the other party. He further argued that when the respondents sought default judgment they did not give notice to the applicants and that the applicants only got to know about the existence of the judgment when they attempted to evict the first respondent from the church premises he occupied.

When counsel for the applicants attention was drawn to the letter written by the legal practitioners representing the applicants, which is quoted above, he could only state that he was unaware how Musunga and Partners got to write that letter. He could not reconcile the fact that the applicants were represented by Ms D. Vundla in court when the order was made to his earlier submission that the applicants were not aware of the existence of the order.

I have already stated that no attempt has been made by the applicants to shed some light as to when the moritorium in litigation was to take effect and when it was to end. According to the letter from their then legal practitioners, which they rely upon in advancing the point that they could not file their papers in time because of an understanding between the parties, litigation was only suspended “until the round table conference is convened and completed.” The applicants have not taken the court into confidence as to the timing of this event.

What is common cause, however, is that negotiations between the parties failed. When this happened, the applicants were required to take steps to oppose the application. They did not. It is them who had the obligation to put their house in order.

Rule 63 of the High Court of Zimbabwe Rules, 1971 provides:

“(1) A party against whom judgment had 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.”

It would appear that the Supreme Court has now resolved the controversy concerning the interpretation of subrule (1) arising out of the seemingly contradictory interpretation of Rule 63(1) in Sibanda v Ntini 2002 (1) ZLR 254 (S) and Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249.

In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249, SANDURA JA had concluded that a defendant against whom a judgment has been granted in default has a period of one month from the time he becomes aware of the judgment within which to file an application for rescission of judgment failing which he must first make an application for condonation of the late filing of the application.

In Sibanda v Ntini 2002 (1) ZLR 254 (S) MALABA JA…, interpreted Rule 63(1) to mean that a person against whom judgment has been entered in default must make the application within one month; which is to say must file and set down the application within one month failing which he has to seek condonation.

When this matter was heard by CHEDA J, he followed the reasoning in Sibanda v Ntini 2002 (1) ZLR 254 (S) and ruled that the applicants were out of time having failed to file and set the matter down within the one month period. He then dismissed the application as no condonation had been sought. On appeal, the full bench of the Supreme Court overturned the judgment of CHEDA J and remitted the matter to this court for the purpose of determining the merits of the application. While I have not had the benefit of a full judgment of the Supreme Court, the order made suggests an acceptance that the proper interpretation of Rule 63(1) is that an applicant must file the rescission of judgment application within one month. Where that has been done there is no need for condonation if the application is not heard within one month.

Rule 63(2) was interpreted in Stockill v Grifiths 1992 (1) ZLR 172 (S)…, as follows;

“The factors which a court will take into account in determining whether an applicant 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 yet 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.”

I have already canvassed the explanation given for the applicants failure to act timeously which falls short of being reasonable, regard being had to the fact that the applicants waited 2½ years before filing their opposition, did not do anything about the automatic bar operating against them and yet they have not even explained what happened to the round table conference for which litigation was suspended. If we assume that the conference in question did take place at some stage, they were obliged to quickly take steps to oppose the application the moment that conference failed to yield anything. On the other hand, if the conference never took place it would be unreasonable for the applicants to say that for 2½ years they were still waiting for the conference to materialise. It is also useful to note that the parties had long resumed litigation against each other as shown by the litigation instituted in both this court and the Supreme Court. Therefore, the applicants cannot be heard to say that litigation was still suspended.

I am not persuaded that even on the merits the applicants would have sustained a meaningful contest. In that regard, I am indebted to NDOU J who had already made findings in The Apostolic Faith Mission of Portland, Oregon (Southern African Headquarters) Inc and Another v Rev Dwight L. Baltzell and Others HB48-05 who adverted to the failure to comply with the provisions of the church's Constitution and the rules of natural justice, in particular, the audi alteram partem rule in removing the first respondent from office.

In considering the merits of the applicants' defence, the court must be satisfied that they have tendered a defence which, on the face of it, cannot be rejected out of hand and warrants investigation. Mdokwani v Shoniwa 1992 (1) ZLR 269 (S)…,.  The applicants are incapacitated by the fact that they have not set out fully a defence on the merits of the application having busied themselves with procedural issues they have not even articulated with sufficient clarity.

Taking into account the factors set out in Stockill v Grifiths 1992 (1) ZLR 172 (S), individually and in conjunction with one another, I am unable to say that the applicants have discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 7 February 2008.

This is an application for rescission of a default order granted by HUNGWE J on the 30^th of November 2012. The brief facts leading to the granting of the default judgment are as follows.

The applicant filed a claim for damages for breach of contract. At the pre-trial stage, the judge directed the parties to file a joint pre trial conference minute and postponed the matter to 30 November 2012 at 11:30am. The applicant and its legal practitioner failed to turn up at the appointed time resulting in default judgment being granted against it.

The applicant's explanation for the default is that the applicant's legal practitioner misdiarised the time and attended court 15 minutes late. The applicant avers that its default was not wilful and was as a result of a mistake made by the applicant's counsel. The applicant maintains that it has advanced a reasonable explanation for the default.

The applicant asserts that its application for rescission of judgment is bona fide. It submitted that it has not filed the application merely to delay proceedings but to ensure that the matter is dealt with on the merits. That the applicant has nothing to gain by delaying these proceedings. Instead, a delay in the finalisation of the main matter is prejudicial to the applicant as it continues to be deprived of money that is lawfully due to it. The applicant maintained that the application was launched with the bona fide intention of ensuring that this matter is dispensed with on the merits. The applicant's position is that it has good prospects of success on the merits of the main matter on the basis that it carried out some civil works on behalf of the respondent and is entitled to payment. That this fact is not denied and the services have not been paid for.

The respondent is opposed to the application on the basis that the applicant has not established “good and sufficient cause” for seeking rescission of judgement. That the respondent's explanation for the default is unreasonable and unjustifiable in that when the matter was postponed both the applicant and its legal practitioners were present in the judge's chambers. The respondent contends that both the applicant and its legal practitioner could not have “misdiarised” the time for the pre-trial conference. The respondent submitted that if the legal practitioner misdiarised the time, then his client should have reminded him of the correct time. The respondent disputes that the applicant and his practitioner attended 15 minutes late and that if that was the case the respondent and his legal practitioner would have seen them. The respondent denies that it was about to put forward a payment proposal. The respondent denies that it snatched at a judgment.

The respondent submitted, on the merits, that the applicant does not have prospects of success in the main matter in that the applicant's claim is a futile attempt to get money from the respondent unjustifiably. That the applicant's claim is baseless and that although the parties had a contract, the parties mutually agreed to suspend the contract and there can be no breach. The respondent further contends that the agreement by the parties to new terms novated the parties' original contract, and, further, that the debt in respect of the work that was already done has prescribed. That even if rescission of judgment is granted, the applicant does not have prospects of success regarding that defence.

This is an application brought in terms of Rule 63. The factors that the court is required to consider in an application of this nature are as follows:

(a) The applicant's explanation for the default.

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

(c) The bona fides of the applicant to rescind the judgment.

See G.D. Haulage (Pvt) Ltd v Mumugwi Bus Services (Pvt) Ltd 1979 RLR 447 and Duprez v Hughes R&N 706 (SR).

The onus, in an application of this nature, is on the applicant to show the existence of good and sufficient cause for rescission of the judgement. The court, in considering the factors outlined above, is required to consider them cumulatively.

The applicant's explanation is that its legal representative attended court at 11:50am due to misdiarisation of the time. He was under the impression that the matter had been set down for 12pm. The respondent's counsel insists that the applicant and his legal representative did not arrive at that time as he would have seen the applicant's representative and his client. The respondent does not state when it left court after the session. It was accepted that the applicant turned up the late. It must be accepted that mistakes such as these are common. It is unlikely that the client had a diary and diarised the matter. In practice, it is usually the legal practitioner who diarises the matter. Most default judgments we deal with involve lawyers turning up late due to misdiarisation of times. It is a common mistake. As remarked in Zimbabwe Banking Corporation v Masendeke 1995 (2) ZLR 417 (S)…,.

“Here, there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it to go by default. No one, and in that term include Mr Moyo of Chikumbirike and Associates who acted for Mr Masendeke, could reasonably have thought otherwise.”

I am persuaded that this default arose as a result of misdiarisation. I am persuaded to so find because the applicant and his client turned up later. Although the applicant did not file a supporting affidavit from the judges clerk to support its version and the fact that it later turned up, the respondent did not deny that it turned up later. Its only contention is that the applicants and its legal practitioner did not turn up at the time they mention because he did not see them. I am not convinced that the applicant intended to abandon its claim, especially the claim for work performed.

I am satisfied that the applicant's explanation is reasonable.

The applicant's argument on the merits is scant.

He merely makes a naked averment that he denies receiving the amount of the loan and agreeing on the rate of interest. His case is weak on the merits. The cumulative effect of the willful default and a weak case on the merits is that the application is devoid of merit.

(2) HC1388/08

This is an application for rescission of the judgment of this court granted in default of the respondents under HC2507/07.

There is a point in limine raised that the application for rescission was made out of time and therefore the party applying must first obtain condonation by this court in terms of Order 9 Rule 63 of the Rules.  Without such condonation, it is argued, that this application is fatally flawed and should be dismissed. The respondent relied on the following cases Sibanda v Ntini 2002 (1) ZLR 264 (S); Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S) and Highline Motor Spares (1933) (Pvt) Ltd & Ors v Zimbabwe Corporation Ltd 2002 (1) ZLR 514 (S). (See also Theunissen v Payne 1940 TPD 680…,.).

The facts reveal that the respondent obtained the order in question outside the knowledge of the applicant. The order was served on the applicants on 26 June 2008. The applicants became aware of the order on that date. On 4 July 2008, the applicants filed this application. Only six (6) days passed from the date the applicants became aware of the judgment to the date that this application was filed.  There is, therefore, no merit in the point in limine raised and it is dismissed – see Rule 63(1) which provides –

“(1) A party against whom judgment has been given in default…, may make a court application, not later than one month after he has had knowledge of the judgment,…,.” …,.

The facts of this matter are the following.

On 21 November 2008, the respondent instituted a court application under case number HC2507/07 against the applicants seeking the following relief:

“1. The applicant's right of refusal entrenched on the agreement of lease dated 30 September 2002 between the applicant and the 1^st respondent be and is hereby upheld or declared binding as between the parties.

2. The purported Agreement of Sale over Stand Number 9 Preston Street, Belmont, Bulawayo entered on or around 6 October 2006 be and is hereby declared null and void and is set aside.

3. The applicant be and is hereby directed, within 30 days, to offer Stand Number 9 Preston Road, Belmont, Bulawayo to the applicant on the same terms and conditions as those to 3^rd respondent on or about 6 October 2006. An order that the respondent jointly and severally sign transfer papers at the Registrar of Deeds offices for the transfer of Stand Number 9 Preston Street, Belmont, Bulawayo within 30 days of granting of this order, failing which the Deputy Sheriff, Bulawayo be and is hereby directed to sign all transfer papers or all documents necessary to effect transfer to the applicant.

4. An order that the respondents jointly and severally cease to disturb the applicants, use, possession and access to Stand number 9 Preston Street, Belmont, Bulawayo.

5. An order that the respondents and the others to be absolved to pay costs of suit on an attorney-client scale.”

The application was properly served.

On 12 December 2007, the applicants filed opposing papers, which were served on the respondent's legal practitioners. On 31 January 2008, following the failure by the respondent to either file an answering affidavit or to set the matter down for hearing, the applicants filed a chamber application in terms of Order 32 Rule 236(3)(b) of the High Court Rules, for dismissal of the application for want of prosecution. The respondent filed opposing papers under case number HC234/08 on 8 February 2008. On the same day, the respondent filed its heads of argument in respect of case number HC2507/07. The applicants filed an answering affidavit in case number 234/08 and applied for a date of hearing. In the interim, unbeknown to the applicants, the respondent, after filing heads of argument aforesaid, proceeded to apply through the Chamber Book to have the matter in case number HC2507/07 dealt with as unopposed because the applicants had not filed their heads of argument.  The chamber application by which the respondent applied for leave to enroll the matter as an unopposed matter was granted by this court on 5 March 2008 under case number HC535/08. This record was missing from the Registrar's office at time of this application. As alluded to above, that chamber application, under case number HC535/08, was not served on the applicants. On 8 May 2008, the respondent enrolled case number HC2507/07 as an unopposed matter, and was able, in the circumstances described above, to secure a default judgment. Having obtained the default judgment, the respondent did not advise the applicants of that judgment. The respondent disclosed the existence of this order through some fortuitous circumstances in another matter between the parties under case number HC156/07.

The applicants now apply for an order rescinding the order under case number HC2507/07 and the application is opposed by the respondent.

It is trite that the factors which the court takes into account in such applications are:

(a) The degree of non-compliance with the Rules;

(b) The explanation therefor;

(c) Prospects of success on the merits;

(d) The importance of the case;

(e) The convenience of the court; and

(f) The avoidance of unnecessary delay in the administration of justice.

Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,.; V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H); and Challenge Auto (Pvt) Ltd & Ors v Standard Chartered Bank Zimbabwe Ltd 2003 (1) ZLR 17 (H)…,.

In Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…, McNALLY JA stated -

“One is naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard when he protests that he has a valid defence.”

The impression must not be gained that the Rules may be flouted with impunity.

A reason for the delay must be given and it must be an acceptable reason. As alluded to above, the applicants acted as soon as they became aware of the existence of the default judgment. The explanation for the default is that the application under HC535/08 was not served on the applicants.  When the applicant brought this issue of non-service of the application in case number HC535/08, the file disappeared from the Registrar's office. This is an important case as it involves immovable property. It would not be in the interest of justice for the transfer of such immovable property to be based on legal technicality in the face of the missing file, case number HC535/08, at the time of application.

The respondent in casu was the plaintiff in proceedings in the Magistrate's Court where she issued summons in which she claims that the defendant, who is the appellant in casu, engaged in an adulterous relationship with her husband thereby causing the plaintiff suffering as she has “been deprived of conjugal rights, comfort and the usual husband and wife support.” She also claims that she has “suffered loss of comfort and contumelia from her husband.” For purposes of consistency, in this judgment the defendant in the lower court will be referred to as the appellant and the plaintiff as the respondent.

The appellant entered appearance to defend the action instituted against her in the Magistrates Court and subsequently also filed a plea. The matter was set down for a pre-trial conference on 15 March 2013. The record of those proceedings shows that on 28 March 2013, which was the trial date, a lady alleging to be the “defendant's” sister attended and said that the defendant was admitted in hospital and she was seeking to hand over a medical record book and this was ruled impermissible by the court.The appellant was therefore found to be in default and a default judgment was granted in favour of the plaintiff.

On 7 May 2013, a Warrant of Execution against property was issued against the appellant. On 14 May 2013, the appellant filed an “Urgent Application for Stay of Execution and Rescission of Judgment” and on the same day the learned magistrate issued a rule nisi staying execution pending the finalisation of the appellant's application for rescission of judgment. The rule nisi was returnable on 21 May 2013. On the return day, there was a hearing before a magistrate at which both parties were in attendance. The respondent opposed the appellant's application. The court ruled that the appellant had been in wilful default and dismissed her application.

The appellant has now appealed to this court against the decision on the following grounds:

“1. The Honourable Trial Magistrate misdirected herself by failing to find that appellant was not in wilful default as she was physically incapable of attending court and had taken reasonable steps to make the court aware of this fact.

2. The Honourable Trial Magistrate misdirected herself by failing to consider that appellant was misled by Cleophas Musara into believing that he was unmarried, which fact was augmented by his contracting a customary marriage with appellant.

3. The Learned Trial Magistrate misdirected herself by awarding Respondent 'unquantified' damages.”

The appellant's prayer is for the setting aside of the magistrate's decision and the substitution thereof with the following:

“(a) Respondent's claim for damages be and is hereby dismissed.

(b) That respondent be and is hereby ordered to pay appellant's costs of suit.”

In her heads of argument, she prays that the trial court's judgment be set aside and that the matter be referred (remitted) for a full trial.

The respondent opposes the appeal.

The full text of the judgment appealed against reads:

“RULING

The Applicant made an urgent application for rescission of judgment and Stay of Execution. In order for her application to be successful the court will look at:

i. Whether the applicant was in wilful default.

ii. Does she have a bona fide defence to the claim.

i. Whether Applicant was in wilful default

The Applicant avers that on the day in question when the default judgment was entered she was in hospital and her sister had come to advise the court of her predicament. Indeed, the record of proceedings reflect that on the day in question a lady purporting to be the now Applicant's sister stood up in court and on notifying the court of the situation was advised that a medical book had to be tendered before the court to prove that indeed the now Applicant was not feeling well. This proof was not averred before this court. Even after numerous explanations by the court that the Applicant had to show that she was not in wilful default she failed to do so. In her application, the Applicant stated that she was informed that she was to appear in court after 30 days, if this was the case, the Applicant was to have appeared in court sometime in April 2013 and not May as she is alleging. Moreso, Order 30(1) states that a party may not apply to have a judgment rescinded after 30 days of having knowledge of the judgment which is what the Applicant did.

It is thus my finding that you were in wilful default thus your application is dismissed with no order as to costs.”…,.

In Mdokwani v Shonhiwa 1992 (1) ZLR 269, the appellant appealed against a decision of the magistrate following the dismissal of his application for rescission of a judgment granted against him. At 270B – 271A, EBRAHIM JA stated:

“The factors to be taken into account by a court in an application for rescission of judgment were stated as follows by DAVIES JA in G D Haulage (Pvt) Ltd v Mumurgwi Bus Services (Pvt) Ltd 1979 RLR 447 (A) at 455B-G:

'In Du Preez v Hughes NO 1957 R&N 706 (SR), according to the headnote of that case, it was decided that there are no precise rules limiting or regulating what matters the court may take into account in deciding whether a defendant who seeks to set aside a default judgment has shown the existence for such relief of 'good and sufficient' cause in terms of Rule 63, the court will normally take into account;

(a) The applicant'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 the court will normally consider these matters in conjunction with each other and cumulatively.

The headnote is misleading since it appears from the body of the judgment of BEADLE J, as he then was, that careful consideration was also given to the prospects of success.

The matter was also dealt with by this court in the case of Arab v Arab 1976 (2) RLR 166 (A). That was an appeal against a refusal of the General Division to grant rescission of a default judgment, and the effect of the court's decision is adequately set out in the headnote in the following terms:

'There is no “rule of thumb” to be applied where an applicant seeks rescission of a judgment in terms of Rule 63 of the High Court (General Division) Rules, 1971. All that can be said is that the applicant must show something which entitles him to ask for the indulgence of the court (dicta per COTTON LJ in In re Manchester Economic Society, 24 ChD at p498 applied). Such indulgence will, however, not be granted where the default of the applicant may be classified as wilful (Du Preez v Hughes NO 1957 R & N, followed).

It is a fundamental principle, dictated by public policy, that, as far as possible, there should be finality in litigation. That is one of the reasons why, in terms of Rule 63, rescission will not be granted unless the applicant shows 'good and sufficient' cause, the onus being on him.'

Clearly, it was incumbent upon the appellant at the hearing before the magistrate to satisfy the court that he was not in wilful default. He had to show that there was an acceptable reason for the late filing of the appearance to defend and that he has a bona fide defence to the respondent's action.”

The meaning of “wilful default” was aptly put by MURRAY CJ in the case of Neuman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR)…, where he stated the principle as follows:

“The true test, to my mind, is whether the default is a deliberate one – i.e. when a defendant, with full knowledge of the set down and of the risks attendant on his default, freely takes a decision to refrain from appearing.”

In the respondent's heads of argument, prepared by counsel, the Mdokwani v Shonhiwa 1992 (1) ZLR 269 case is cited and the following submitted:

“51. Using the reasonable test, Appellant should have at least made sure that her sister furnishes the court with medical books were it true that she was sick. That her sister, even after several requests, failed to produce any medical books substantiating her conditions means that she took a calculated risk.

52. There is no way the court would have accepted the reason for the default in the absence of medical books. The trial court therefore did not fell (sic) into error in finding that Appellant was in wilful default.

53. It is trite that if it turns out that the default was wilful or was due to gross negligence, the Court normally does not come to the Applicant's assistance.

54. See Registrar General v Tsvangirai 2003 (2) ZLR 114.

55. Having ruled that the default was wilful, the court therefore was correct in not coming to the Appellant's assistance.”

A perusal of the proceedings of 28 March 2013 does not confirm what is stated by the learned magistrate in the underlined portion of her judgment. On the contrary, such perusal shows that the lady who stood up in court claiming to be the appellant's sister sought to hand over a medical record book to the court and the court ruled this to be impermissible. The original record, in which the handwritten notes of the two magistrates who dealt with this matter on 28 March and on 21 May 2013, are available, is very clear on what transpired in court. The court, on 28 March 2013, declined to accept what was being proffered and was meant to be proof of the appellant's admission in hospital by reason of which she was unable to attend court. There is no record of the court giving numerous explanations as stated in the judgment quoted above….,.

In addition to the above, the nature of the appellant's defence to the respondent's claim against her is to the effect that she was misled by Cleophas Musara and his relatives that he was a divorcee and so she was unaware that he was married to the respondent. Furthermore, the action by Cleophas Musara, in marrying her customarily by paying lobola, made her believe him. Two children were born of their union. She thus denies being responsible for the respondent's suffering which she says should be attributed to Cleophas Musara. Without going into the finer details of her plea, the appellant's defence is of such a nature that would require full ventilation by a trial court. The appellant also raised, in her heads of argument, the aspect that there was no proper quantification of the damages awarded to the respondent by way of the default judgment. All these factors, taken in conjunction with each other and cumulatively, point to the justification for this court to grant the appellant relief.

It is for these reasons that the appeal will succeed.

It is therefore ordered as follows:…,

IT IS ORDERED THAT:

1. The appeal is allowed…,.

2. The judgment of the lower court is set aside and substituted with the following:

(a) The application for the rescission of judgment is granted.

This is an application for the rescission of a default judgment granted, in case number HC2846/13, against the applicant on 8 February 2013, whereby an arbitral award was registered by this court in terms of  Article 35 of the UNCITRAL Model Law, as set out in the Schedule to the Arbitration Act [Chapter 7:15].

The applicant seeks to blame its previous legal practitioners for being negligent in failing to carry out its instructions to oppose the registration of the arbitral award.

This court must decide whether the allegation of negligence constitutes good and sufficient cause for purposes of meeting the requirements of rescission of default judgment in general, and for purposes of allowing rescission of the judgment which registered an arbitral award in particular.

The question of the circumstances in which a court may allow the consequences of a party's legal practitioner's adverse conduct to affect the outcome of litigation is a vexatious one which is always dependant on the particulars of each case. “It is the trade of lawyers to question everything, yield nothing, and talk by the hour.” THOMAS JEFFERSON (1743-1826) Third President of the United States.

At the hearing of this matter, I dismissed the application for rescission of a judgment in which an arbitral award was registered by this court for purposes of execution, with costs. I gave brief reasons for the judgment, ex tempore, as follows:

“The applicant has failed to establish good and sufficient cause to rescind a default judgment which registered an arbitral award. There are no prospects of success in the main application due to procedural irregularities which remain unattended. This court has no jurisdiction to inquire into the merits of arbitral awards except as provided for in terms of Article 36 of the Model Law, whose requirements have not been met in the founding affidavit to this application. See Benson Samudzimu v Dairiboard.Holdings Limited HH204-10, 2010 (2) ZLR 357.”

I have now been asked to provide detailed reasons for judgment.

These are the reasons.

The background to this matter is that the respondent was employed as a Production Manager by the applicant in 2010. As part of his probation review, on 19 March 2010, and on 1 April 2010, he accepted that he had made mistakes in the discharge of his duties. On 20 April 2010 he was suspended from duty without pay and benefits, pending a disciplinary hearing, in terms of section 4(a), (f) and (g) of S.I.15 of 2006 (acts of omission inconsistent with the fulfillment of the express or implied conditions of his contract, gross incompetence or inefficiency in the performance of his work, habitual and substantial neglect of his duties). A disciplinary hearing was held on 4 and 10 May 2010, resulting in the respondent's dismissal from the applicant's employ, with effect from the date of suspension.

On 13 March 2012, an arbitrator found the respondent's dismissal to be unfair because the applicant had not recorded the disciplinary hearing in writing, and the absence of the record of proceedings rendered the proceedings illegal.

Arbitrator Matsikidze ordered that the respondent be reinstated with full benefits and pay from the date of the unlawful dismissal, or, alternatively, for quantification of damages to be done within 14 days of the date of his award, in the event that reinstatement was no longer tenable. On 27 March 2012, the applicant appealed to the Labour Court against the decision of the arbitrator. The appeal was dismissed after eight months for failure to file heads of argument by the applicant. On 16 April 2013, the applicant changed legal practitioners, from Messrs Maganga & Company to his current legal practitioners, Messrs Koto & Company. In a letter addressed to the previous legal practitioners by the current legal practitioners, an allegation was made that due to the negligence of the previous legal practitioners, the appeal had been dismissed, and the quantification of the respondent's damages in lieu of reinstatement done in default of appearance by the applicant.

On 29 April 2013, Messrs Mabundu Legal Practitioners responded to the letter addressed to Messrs Maganga & Company on 16 April 2013. Mr. Sangarwe, the previous attorney of record, disputed the allegation of negligence. He reiterated that Mr. Dave Ashwin, one of the applicant's Directors, had been:

“…, kept abreast of all the proceedings and the writer actually called him on the phone on two occasions inquiring as to whether we should continue to represent him in this matter. He replied that a Labour consultant, Mr. P. Shawatu, was dealing with the matter, and, as such we should leave everything to him.”…,.

The basis of the application before the court, as set out in the applicant's founding affidavit, is that the applicant was betrayed by his legal practitioners who did nothing to safeguard its interests. The applicant denies being in willful default because it had given its lawyers instructions to defend the matter. The applicant makes reference to Messrs Maganga & Company, and attaches a response from Messrs Mabundu Law Chambers. No explanation is proffered in the founding affidavit. We are left to surmise that the particular lawyer handling the matter had switched law firms. The applicant avers that the lawyer's conduct shows a deliberate course of action meant to prejudice it by failing to appear before the arbitrator who quantified damages. The applicant alleges that its previous lawyer connived with the respondent's lawyer on 8 April 2013 resulting in the applicant's property being attached in execution.

The respondent opposed the application for rescission of the judgment which registered the arbitral award on 10 May 2013....,.

In regards to the merits of the matter, the respondent averred that the applicant did not give any reasons for its default and failure to file opposing papers to the application to register the arbitral award.

The applicant laid the blame at its previous lawyer's door.

The court must decide whether such an explanation is adequate, and whether it suffices and fulfils the requirements set out in the Rules of this Court that govern rescission of judgment in general, and rescission of a judgment which registered an arbitral award, in particular. The question that the court must answer is this;

(i) Firstly, in what instances may this court decline to register an arbitral award for purposes of execution?

(ii) Secondly, is the evidence before the court sufficient and cogent to sustain an application to rescind the registration of an arbitral award?

It is my suggestion that before examining the law that will enable the court to answer these two questions, the court will look at the provision in its Rules that governs rescission of its judgments in general. Order 9 Rule 63 of the Rules of the High Court 1971 provides as follows:

“63. Court may set aside judgment given in default

(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 sub rule (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.”…,.

The leading case on the interpretation of Rule 63 is Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC) where the court gave guidance about its requirements. The headnote reads as follows:

“A defendant against whom a default judgment has been granted has a period of one month from the date he becomes 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. This should be done as soon as he realises that he has not complied with the Rules. 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. In the event of flagrant breaches of the Rules, the indulgence of condonation may be refused, no matter what the merits of the application are. This applies even where the blame lies solely with the party's legal practitioner,”

A close reading of this case will show that it is a vital requirement or hurdle that an applicant for rescission of default judgment must state the date on which it became aware of the judgment. This averment, which must be contained in the founding affidavit, will bring such an applicant squarely within the ambit of Rule 63(1). Failure to comply with the one month time limit necessitates an application for condonation of late filing of the application for rescission of default judgment. The second hurdle that an applicant, in terms of Rule 63, must clear, is that an explanation must be given as to why judgment was given in default. If the default was willful, success under Rule 63 will be elusive, if not impossible.

The gist of the applicant's founding affidavit is that the applicant was not in willful default. It had given instructions to its legal practitioners who let it down, betrayed it, or connived with the opposition to its detriment. Does the evidence before the court support these allegations?

In my view, it does not.

There are at least four sets of legal practitioners who represented the applicant at various stages of these proceedings, Messrs Sande & Associates, Messrs Maganga & Company, Messrs Mabundu and Messrs Koto & Company. Mr.Sangarwe, previously of Messrs Maganga & Co, now of Messrs Mabundu, is indirectly accused, in the applicant's founding affidavit, of negligence, and of failure to carry out the applicant's instructions to oppose the quantification of damages and to oppose the registration of the arbitral award. In his letter filed of record, dated 29 April 2013, he strenuously denies any wrongdoing, and alleges that the applicant was being represented by a Labour Consultant, Mr. P. Shawatu. So all we have is unsubstantiated allegations that the applicant was not in willful default because his lawyer was negligent. The applicant does not dispute the contents of the letter of 29 April 2013 in its answering affidavit. The court accepts that the allegation that the applicant's lawyer was negligent is a bald one, it is unsubstantiated, it has been challenged and the challenge remains extant, it has not been proved by the applicant that its failure to file opposing papers was due to its lawyer's negligence.

In paragraph 13 of the founding affidavit, the applicant states that it was shocked when it was served with a Notice of Seizure on 8 April 2013. Presumably that is the date when the applicant became aware of the judgment. My reading of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC) is that an applicant for rescission of default judgment is required to state, expressly, the date on which it became aware of the judgment. This enables such an applicant to expressly bring itself within the ambit of Rule 63. See alsoTheunissen v Payne 1940 TPD 680, CIR v Burger 1956 (4) SA 446 (A); Saloojee & Anor v Minister of Community Development 1965 (2) SA 135…,;,Tshivhase Royal Council v Tshivhase & Anor 1992 (4) SA 853 (A); Ntini v Sibanda SC74-02, 2002 ZLR (1)…,; and SAI Enterprises v Girdle Enterprises (Pvt) Ltd 2009 (1) ZLR 352.

The applicant before me did not do so. It did not jump the first hurdle under Rule 63.

The application before me was filed on 8 May 2013. No explanation was given as to why the Notice of Seizure only came to the applicant's attention on 8 April when it had been served on the applicant on 5 April 2013. The applicant's attempts to lay the blame at its lawyer's door have not found favour with me because of the paucity of evidence before the court to support that contention. Even if these excuses had found favour with the court, it has been held by a more superior court in S v McNab 1986 (2) ZLR 280 (S)…, that;

“I share the view expressed by STEYN CJ in Saloojee & Anor NO v Minister of Community Development supra at 141C-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).)'”

The second hurdle to bring an ordinary applicant for default judgment within the ambit of Rule 63 is an averment of good and sufficient cause and sufficient evidence to support the averment. In the leading case of Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (SC) the phrase “good and sufficient cause” has been held to mean;

“…, that the High Court Rules require only “good and sufficient cause” as the basis of rescission of judgment. This gives the court a wide discretion and it is not possible to provide an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. Even where there has been willful default there may still sometimes be good and sufficient cause for granting rescission. The good and sufficient cause, for instance, might arise from the motive behind the default.” See also Cairns Executors v Gaarn 1912 AD 181 at 186, Roland & Anor v McDonnell 1986 (2) ZLR 216 (S), Stockil v Griffiths 1992 (1) ZLR 172 (SC) where the court stated that:

'The factors which are taken into account in deciding whether a default judgment should be rescinded 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 and whether that defence carries some prospect of success.”

In the exercise of the wide discretion that reposes in a court in terms of Rule 63, it is my view that not enough has been placed before the court to support a finding that there is good and sufficient cause to rescind the judgment that is being challenged. The applicant's disingenuous attempt to blame its legal practitioner has been rejected by the court for lack of evidence to support it. It can therefore not be a reasonable explanation if it is not sustainable. The applicant appears to be motivated by a desire to put off the evil day and avoid paying its dues to the respondent. Its application for rescission of judgment is not bona fide, especially in light of the fact that it took eight months to prosecute its appeal before the Labour Court, and that the appeal was dismissed for want of prosecution. Lastly, on the question of whether the applicant's defence on the merits carries some prospects of success, the court has reservations about the applicant's willingness to have the merits of the matter ventilated. There are some outstanding procedural hurdles that the applicant must jump before the matter can be set down for determination of its merits before the Labour Court. An application for condonation of late filing of heads of argument must be filed and determined in the applicant's favour. An application for reinstatement of the appeal will then have to be filed and determined, again in the applicant's favour. Only then can the matter be heard on merit. The applicant has not shown the court, on the papers before it, the effort that it is making, if any, to attend to jump these procedural hurdles.

This is an application for rescission of a judgment of MTSHIYA J under HC2439/11.

The salient facts of this application are as follows. The parties entered into an instalment sale of land for $658,000= payable in 6 months. The applicant paid $360,000=. The respondent subsequently cancelled the Agreement of Sale on the basis of non-payment of the full purchase price. The applicant issued summons claiming transfer of the land purchased upon payment of the balance of the purchase price, or, alternatively, restitution of monies paid towards the purchase price. The matter was set down for a Pre-Trial Conference on 19 February 2013. The applicant did not turn up at the hearing on time and default judgment was granted against it.

The applicant's explanation for the default is that the matter was diarised by its legal practitioner's secretary for 9:30am on 19 February 2013. At about 9:15 am, on the appointed date, counsel for the applicant received a call from the respondent's legal practitioner, Mrs Matshiya, who indicated that she was waiting at court and that the matter was set down for 9am. Counsel for the applicant consulted with Mr Hashiti, who had appeared on his behalf on a previous occasion, and he confirmed that the matter had been set down for 9am. He, together with Mr Hashiti, rushed to court. The applicant's representative was already at court. When counsel arrived at the judge's chambers, at 9:30am, the matter had already been dealt with and default judgment granted against the applicant. 

The applicant maintains that the respondent snatched at a judgment because counsel proceeded and applied for default judgment despite that the applicant's counsel was on his way to court. The applicant insists that it was not in wilful default as the default arose out of error and oversight and not out of the making of the applicant. The applicant submitted that mistakes arising out of misdiarisation of matters do occur and are common. It contended that this was a minor transgression for which the applicant should not be penalised. The applicant avers that it has a bona fide defence on the merits as the sale was not properly cancelled and that effectively there was no cancellation of the sale. The applicant argued that the agreement between the parties is still operational.

The respondent argued that the applicant was in wilful default. It refuted allegations that the respondent's counsel snatched at a judgment because she telephoned the applicant's counsel to inform him of the hearing. The respondent submitted that default judgment was granted because the applicant did not attend resulting in the court directing the parties to be ushered into the judges' chambers for the matter to be dealt with. This was after the applicant's counsel had promised to call back and failed to do so as promised. The respondent further submitted that the applicant has no bona fide defence on the merits and urged the court to dismiss the application. It submitted that the sale was cancelled for failure to pay the full purchase price and its failure to develop the land and ultimately that it is not entitled to receive transfer of the land. It submitted that the alternative claim has no prospects of success because the respondent was entitled to set-off amounts outstanding for rates owed by the applicant against part of the purchase price paid.

An applicant seeking to have a judgment rescinded in terms of Order 9 Rule 63(2) is required to show the existence of “good and sufficient cause” for the rescission. The following are the factors that the court is expected to consider:-

1. The applicant's explanation for the default.

2. The bona fides of the application to rescind the judgment.

3. The bona fides of the applicant's defence on the merits of the case.

See Deweras Farm (Pvt) Ltd and Ors v Zimbabwe Banking Corporation 1997 (2) ZLR 47 (HC); G.D. Haulage (Pvt) Ltd v Mumugwi Bus Services (Pvt) Ltd 1979 RLR 447; and Duprez v Hughes R&N 706 (SR).

The court will consider, cumulatively, these requirements in determining whether or not good and sufficient cause has been shown for rescission of the judgment.

In considering the explanation for the default, the court is required to consider the reasonableness of the default. In Zimbank v Masendeke 1995 (2) ZLR 400 (S), the court, in defining the concept of wilful default, remarked as follows:

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

The default is attributed to the applicant's legal practitioners who misdiarised the matter. 

The misdiarisation was simply a mistake. I do not read anything else into the circumstances. The court, in Zimbank v Masendeke 1995 (2) ZLR 400 (S), in dealing with mistakes, remarked as follows;

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it to go by default. No one, and in that term includes Mr Moyo of Chikumbirike and Associates who acted for Mr Masendeke, could reasonably have thought otherwise.”

These sentiments are equally applicable to this case.

Counsel for the respondent conceded that the applicant's explanation is reasonable and that misdiarising of matters happens in practice. I am unable to find that the applicant, with the full knowledge at the fact that the matter had been set down for 9am and being aware of the risks attendant upon default, freely took a decision to refrain from attending the Pre-Trial Conference. This assertion is not supported on the facts. The applicant's counsel hurried to court the moment it was advised of the hearing. His client was already at court. Having lodged its claim and pursued it this far, there is nothing to suggest that the applicant had abandoned its claim and would allow its claim to go by default.

I am not persuaded that the respondent's counsel snatched at a judgment. If she had desired to do that she would not have advised the applicant's counsel of the hearing. It is unclear how the matter ended up being dealt with before the applicant arrived. The indications are that it is the court that directed that the parties be ushered into the judge's chambers and let the matter proceed, resulting in the default.

This default is attributable to the applicant's legal practitioners.

Case authority is clear that wilful disdain of the Rules of the Court by a party's legal practitioner will be treated as non-compliance or wilful disdain by the party himself. See Saloojee & Anor v Minister of Community Development 1965 (2) SA 135. I have not found that the applicant's legal practitioners freely took a decision not to attend the Pre-Trial Conference. The court has also considered that the misdiarisation arises out of an administrative error which amounts to ordinary negligence and not gross negligence and therefore does not amount to wilfulness. There is no basis for visiting the sins of the legal practitioner on the client. I find the applicant's explanation for the default reasonable and understandable.

This is an application in terms of order 9 Rule 63 of the High Court Rules, 1971 for the setting aside of a judgment given in default of the applicant. The order was given in case No. 3979/11 on 5 October 2011. The applicant states that she became aware of the default judgment on 11 November 2011. The instant application was filed on 16 November 2011. 

The application is opposed by the respondent.

On 4 November 2010, the parties entered into an agreement in terms of which the respondent leased from the applicant premises known as 71 Pendenis Road, Mount Pleasant, Harare for a monthly rental of US$1,500=. The agreement was reduced to writing. Pursuant to that agreement, the respondent paid a sum of US$10,500= representing rent for six months and a good tenancy deposit of US$1,500=. 

There is a dispute as regards what transpired after the payment of the above amount. 

The applicant states that the respondent failed to take occupation of the premises, citing the size of the windows which he was not happy about. On the other hand, the respondent states that the applicant failed to give him peaceful and undisturbed occupation of the premises after he had paid her the six months' rent. What is common cause, though, is that the respondent never took occupation of the premises. Correspondence was exchanged between the parties regarding the failure of the applicant to make the premises available to the respondent for occupation.

In 2011, the respondent instituted proceedings under Case No. HC3979/11. In that case, he prayed for an order to confirm cancellation of the lease agreement and for payment of the sum of US$10,500=. On 5 October 2011, this court granted a default judgment with costs against the applicant after she was barred for failing to file her plea. 

The instant application is for the setting aside of that judgment….,.

The applicant's defence on the merits is that the respondent refused to take occupation of the premises citing the sizes of some windows. That is disputed by the respondent who states that the applicant failed to give him occupation of the house because she wanted to first secure alternative accommodation for herself. A letter was addressed to her by the respondent's legal practitioners, dated 8 December 2010, complaining that she had breached the lease agreement by not making the premises available for occupation by the respondent. There is a response to that letter from Shaka Legacy Executors who were acting on her behalf. The applicant vehemently denies that she gave Shaka Legacy Executors the mandate to represent her. There is absolutely no explanation as to how Shaka Legacy Executors would have become involved in the matter without instructions from the applicant. The applicant has not obtained an affidavit from that organisation to confirm her assertions. The applicant makes no attempt to explain what happened to the letter of 8 December 2010 which was received on her behalf by Tichaona Chape, a gardener at her premises. She does not explain how that letter ended up in the hands of Shaka Legacy Executors. From the letter written on behalf of the applicant on 31 January 2011, she was offering to refund the amount paid to her by the respondent. That offer is inconsistent with her contention that she is entitled to keep the money. There is, therefore, no bona fide defence to the respondent's claim against her.

I do not believe, too, that this application is made with the bona fide intent to seek the setting aside of the order. The conduct of the applicant, of denying the service of the notice of intention to bar at her address for service and of denying that she authorised Shaka Legacy Executors to represent her without obtaining affidavits from those involved with the firm of executors makes the applicant's assertions spurious….,.

In all the circumstances, the applicant has failed to establish good and sufficient cause for this court to set aside the default judgment given against her in Case No. HC3979/11….,.

In the result, it is ordered as follows:

The applicant sold Stand Number 4060 Khumalo Township to the respondent via an undated written Agreement of Sale for Z$120,000,000= (revalued). The applicant, in her founding affidavit, says the sale was concluded on 8 November 2007.

This cannot be the correct date because going by the schedule of payments attached to the Agreement of Sale, the full purchase price was supposed to have been paid by 14 February 2007. The respondent paid only Z$70,000,000= in tranches of Z$19,800,000=, Z$200,000= and Z$50,000,000= paid on 8 February 2007, 9 February 2007 and 12 February 2007, respectively.

When the respondent failed to pay the balance of the purchase price, the applicant says she then invoked clause 7 of the sale agreement and wrote him annexure 'D', a letter dated 15 February 2007, which reads as follows:

“RE: AGREEMENT OF SALE

In reference to clause 8 (sic) of our agreement whereby you have breeched (sic) our agreement by failure to make full payment before the agreed date, I therefore find it necessary to give notice to you to make payment of the outstanding amount within 14 days failure which I will cancel the agreement of sale.”

However, according to the Agreement of Sale (annexure 'C'), clause 8 relates to “Whole Agreement” while clause 7 provides as follows:

“7. BREACH

In the event of the purchaser failing to pay any sum owing under this agreement on the due date or in the event of any breach or other conditions of this agreement of sale not being remedied within 14 days of the posting of a written notice to the purchaser the seller shall have the option to institute legal proceedings against the purchaser for the balance of the purchase price owing under this agreement or alternatively to enforce the agreement and claim interest on the outstanding amount at the prevailing bank rate.

7.1 Should either party initiate legal proceeding (sic) against another arising out of this agreement the parties agree to pay all costs as between attorney and client and collection (sic) as is provided for in the Law Society of Zimbabwe (sic).”

She says when the respondent did not respond to the notice alluded to above, she wrote him another letter cancelling the Agreement of Sale. That letter is not attached to this application. On 26 February 2007, the respondent, through his legal practitioners, wrote the following letter to her (annexure 'E'):

“RE: SALE OF STAND 4060 KUMALO TOWNSHIP OF STAND 4125 BULAWAYO TOWNSHIP

We act under the instructions of Reverend Andrew Malete who has shown us your agreement of sale of the above property. We are also informed that you have purported to cancel the same agreement of sale.

We advise you that your attempt at cancellation is illegal and in breach of the Contractual Penalties Act. Our client will ignore this purported cancellation and hereby tenders the balance of the purchase price.

We hope it will not be necessary for us to go to court to get an order to compel you to accept the money and give our client transfer of the property….,.”

This letter jolted applicant into engaging Mr Masuku, then of Ben Baron & Partners, to represent her. Messrs Majoko & Majoko who were representing the respondent sent a cheque for Z$50,000,000= to Ben Baron & Partners representing the balance of the purchase price. The cheque was declined and returned, because, according to her, she had “validly cancelled the agreement of sale for his breach.”

The respondent then filed an urgent chamber application under cover of case number HC784/07 seeking an interim order interdicting her from selling, alienating or transferring the Stand in question and also an order directing the Deputy Sheriff to place a caveat on the property. The provisional order was granted on 10 April 2007. She says she duly opposed the application and heads of argument were filed in May 2007 whereafter the matter “went dead as it was not set down for hearing.”

On 25 April 2012, the applicant visited the Registrar of Deeds' office intending to obtain a copy of the title deeds for the property because, according to her, she wanted to lift the caveat and apply for a loan from her bank using the property as security. She does not say what transpired at the Deeds Office but says she proceeded to the High Court where she discovered that the respondent had obtained a default court order on 31 May 2011 against her ordering her to transfer the property to him. 

This was confirmation of the provisional order that had been issued on 10 April, 2007 under HC 784/07.

She then engaged her current legal practitioners to pursue the matter since Ben Baron & Partners had not informed her of the set down of the matter.

Her current legal practitioners, on perusing the court record, discovered that the notice of set down had been served on Messrs Webb, Low & Barry Legal Practitioners who had incorporated Ben Baron & Partners but no one had attended court on 31 May 2011, hence the default order. Mr Masuku, it was learnt, had left Ben Baron & Partners and went to Botswana. Correspondence then shuffled between her current legal practitioners and Messrs Webb, Low & Barry who needed the file reference number to enable them to do a search at their archives and those of Ben Baron & Partners. The file could not be located. This contributed to her delay in lodging the application for rescission of the default judgment from 25 April 2012 up to 28 June 2012.

This is the reason applicant has lodged, first, the current application for condonation for late filing of the application for rescission of the default judgment. 

The respondent vehemently opposes the application.

Now, the law regarding applications for condonation of late filing of an application for rescission of a default judgment, as well as an application for rescission of the default judgment itself, is trite. Order 9 Rule 63(1) of the High Court Rules, 1971 provides:

“(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 he judgment to be set aside.”

For such an application to be granted, good and sufficient cause must be shown: Rule 63(2).

Where a litigant fails to lodge the application within the one month 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 as soon as he/she realizes that he/she has not complied with the Rules. If condonation is not sought as soon as possible, he/she 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: Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC).

In the circumstances of the instant case, the applicant became aware of the default judgment on or about 25 April 2012. On 30 April 2012 her current legal practitioners wrote to Webb, Low & Barry enquiring about the default. On 8 May 2012, Webb, Low & Barry responded advising that it would take a bit of time to locate the file and establish why there was no attendance at the hearing. Their final response came on 14 June 2012 advising that the file could not be located. By then the applicant, who should have filed her application for rescission of the default judgment by the 25^th May 2012, was already out of time.

The applicant avers that “immediately upon receipt of the letter from Webb, Low & Barry, the applicant proceeded to file the application for condonation on the 28^th June 2012.”

The applicant is the widow of the late Manson Moyo who died on 7 July 1997. Manson Moyo was once the Chairperson of the respondent. By virtue of that position, he was entitled to reside in House Number 171 Maphisa Growth Point in Kezi together with the applicant wife who also was a member of respondent. 

Following Manson Moyo's death, the applicant resisted moving out of the house in question prompting the respondent to issue summons for eviction against her under cover of case number HC2130/10.

Apparently, though the papers before me do not ventilate when, how and why, the house in question had already been registered in the name of either the applicant or her late husband; for under case number HC3041/09, in which the respondent was the plaintiff while the applicant was the first defendant, Estate Late Manson Moyo, the second defendant, and the Additional Assistant Master was the third defendant, the respondent had obtained an order granted in its favour by KAMOCHA J on 18 March 2010 in the following terms:

“It is ordered that:-

1. Immovable property known as Stand Number 171 Maphisa, Kezi be and is hereby declared to be held in trust by 1^st defendant for and on behalf of plaintiff's members.

2. The 1^st defendant be and is hereby ordered to take all reasonable steps to transfer ownership of Stand Number 171 Maphisa, Kezi to plaintiff's nominee within fourteen (14) days of this order, failure of which the Deputy Sheriff be and is hereby ordered and empowered to act on 1^st defendant's stead and sign all necessary documents to transfer ownership to plaintiff's nominee.

3. 1^st defendant be and is hereby ordered to pay costs of suit on the ordinary scale.”

The applicant failed to enter appearance to defend the suit in HC2130/10 resulting in a default judgment being obtained against her on 16 December 2010.

According to the applicant, the summons was served upon her on 21 October 2010. She took the summons to the Bulawayo Legal Projects Centre where she left the documents with one Mr Gasela who she thought then to be a legal practitioner yet is a paralegal who made her believe that the suit would be defended. She was surprised, on 11 February 2011, when the Deputy Sheriff came to the house and evicted her therefrom. On 23 February 2011 she then filed this application for condonation of late filing of the rescission of the default judgment in HC2130/10. 

The application is thoroughly opposed.

Although the letter dated 1 June 2010, written by the respondent to the applicant, directing her to vacate and surrender the house in contention pursuant to KAMOCHA J's order of 18 March 2010 in HC3041/09 and expelling her from the co-operative society is not signed, which is the ground upon which the applicant sought to impugn it, she did not deny receiving it or getting acquainted with its contents This means that it was brought to her knowledge that the judgment in HC3041/09 was in existence. That judgment was also given in default. She has done absolutely nothing about it. It still stands and it is getting now to four years from the date of its issuance. Even if the applicant were to successfully have the judgment in HC2130/10 rescinded, she will still have the judgment in HC3041/09 to contend with. 

There are therefore no prospects of success in having HC2130/10 rescinded before HC3041/09 has been rescinded.

It is incomprehensible why the applicant, in her papers, says nothing about what she has done or intends to do with the judgment in HC3041/09.

Now, back to the matter at hand, Rule 63(1) of the High Court Rules, 1971 provides that a party against whom a judgment has been given in default 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.

In casu, the applicant says she had knowledge of the default judgment on 11 February 2011 when she got evicted and this application, according to the court's date stamp, was filed on 23 February 2011.

In the event, she had no reason to file this application for condonation, she should just have proceeded to file an application for the rescission of the default judgment straightaway. Unless, of course, she is lying that she became aware of the default judgment on 11 February 2011. I am constrained to think that she is lying, otherwise why would one embark upon a tortuous and more onerous legal itinerary when a shorter and less onerous one exists.

Assuming that the applicant was entitled to apply for condonation first she would still fail to scale the hurdles enunciated in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC). These hurdles are to give an acceptable explanation not only for the delay in making the application for rescission but also for the delay in seeking condonation. In the event of flagrant breaches of the Rules, the indulgence of condonation may be refused no matter what the merits of the application are and this applies even where the blame lies solely with the party's legal practitioner.

In casu, the applicant realized that she was in breach of the Rules on 11 February 2011 but only filed her application for condonation on 23 February 2011 – some 12 days later. This period cannot be said to be as soon as possible? She does not give an explanation, let alone an acceptable one why she delayed in filing this application by 12 days. 

That should be the end of the enquiry.

Even a look at her explanation for the delay in applying for rescission leaves a lot to be desired. The applicant and her erstwhile legal practitioners were negligent. She cannot be heard – lay personship aside – to aver that she simply dumped the summons at her legal practitioner's offices from October 2010 and did not bother to make a follow-up up until she learnt of the default judgment 4 months down the line. She did not even bother, in this application, to file an affidavit by the so-called Gasela or anyone from the Legal Projects Centre corroborating her averment. She was content to allege in the penultimate paragraph of her founding affidavit that the house is hers, having inherited it from her late husband as per annexures “B”, “C” and “D.” 

Nothing can be further from the truth. 

Annexure “B” is simply her late husband's death certificate, annexure “C” is a Letter of Administration by the Additional Assistant Master appointing the applicant executrix dative of the estate of her late husband while annexure “D” is a letter dated 24 April, 2007 written by some Administration Clerk in the Ministry of Local Government, Public Works and Housing at Maphisa saying;

“TO WHOM IT MAY CONCERN

REF: House No.171 Maphisa

This note serves to introduce Promise Danisa I.D. No. 21-026919 W 21 as the true owner of the referred property.

The house was constructed by the above Ministry and sold to Danisa under the national housing fund.”

Surely these documents are anything but proof of ownership!

They cannot withstand the force and effect of KAMOCHA J's order of 18 March 2010 in HC3041/09. There is not even a shred of evidence save for a bald allegation that the house belonged to the applicant's late husband. She therefore could not have inherited what did not belong to her husband. The house has since been transferred into the respondent's names following KAMOCHA J'S order alluded to above. In the event, there are no prospects of success in any application for rescission of judgment that the applicant can file – whether of HC3041/09 or HC2130/10.

This is an appeal against the judgment of the High Court dated 28 May 2014. The background to this matter may be summarised as follows.

The appellant and the respondent are siblings.

The appellant, through his company, Carnerstown SA, based in Geneva, had a 100% shareholding in Zincar (Private) Limited, a company duly incorporated in Zimbabwe. On 29 May 1995, the appellant sold to the respondent 15% of the shares in Carnerstown SA. In terms of their agreement, the respondent was entitled to 50% of the net profit in Zincar (Private) Limited at the end of each financial year. In March 2007, Carnerstown SA sold its shareholding in Zincar (Private) Limited to a South African company for US$1,500,000=, at which point the appellant allegedly undertook to pay to the respondent the sum of US$191,250=, which sum represented the 15% share of the proceeds of the sale of Zincar (Private) Limited after deducting expenses.

The US$191,250= was to be paid by way of instalments which were to be staggered as follows:

(i) US$16,000= initial instalment; and

(ii) Instalments of US$15,937= every 60 days.

The appellant is alleged to have paid only US$32,000= of the US$191,250=.

The respondent thereafter caused summons to be issued against the appellant in the court a quo claiming an amount of US$155,000=. The matter was set down for trial on 18 June 2008. The appellant was in default and judgment was entered against him.

The appellant then filed an application for the rescission of the default judgment.

During the hearing in the court a quo it was not in dispute that the appellant had not been aware of the trial date as there was a mix up of notices of set down emanating from the Registrar's office. The court a quo, nevertheless, proceeded to dismiss the application on the basis that the appellant had not established “good cause” in terms of Rule 63(2) of the High Court Rules, 1971, such as would have warranted the rescinding of the judgment. The court stated the following on page 5 of the cyclostyled judgment:

“Should l therefore exercise my discretion in favour of the applicant and grant him the indulgence of rescission? l think not. There is nothing that the applicant can present to the trial court as a meaningful defence. Mr Morris was right in saying that he possesses 'no earthly prospect of a defence' to the claim.”

Aggrieved by this decision, the appellant approached this Court on the following grounds:

“(a) The Honourable Court a quo erred in law in dismissing the application for rescission of default judgment without affording the appellant an opportunity to be heard at trial.

(b) The Honourable Court a quo erred in dismissing the application even though respondent conceded that there was no wilful default on the part of the appellant and notwithstanding that appellant demonstrated the existence of triable issues which were bona fide in nature and which prima facie carried some prospects of success at trial.

(c) The Honourable Court a quo, with respect, erred in finding that the respondent's claim against the appellant in his personal capacity, when the transaction involved Carnerstown Corporation S.A. of Monrovia, which sold its shares in Zincar (Private) Limited to another entity, which sale proceeds accrued to Carnerstown Corporation S.A. and not the appellant, which issue can only be determined and resolved at a trial.

(d) The Honourable Court a quo erred at law in its finding that it had jurisdiction to hear the matter notwithstanding that Carnerstown Corporation is domiciled in Switzerland and does not conduct its business in Zimbabwe. The purported cause of action thus arose from the sale of shares in a jurisdiction outside Zimbabwe and should be determined in that jurisdiction.”

Three preliminary points were raised by the respondent in his heads of argument and at the hearing as follows:

1. Appellant filed his heads of argument out of time;

2. Appellant's grounds of appeal were meaningless and did not comply with Rule 32 of the Supreme Court Rules; and

This is an appeal against the decision of the High Court dismissing an application for rescission of a default judgment. 

After hearing arguments on behalf of the parties, the Court dismissed the appeal with costs. It was indicated that reasons for the decision would follow in due course.

These are they.

The appellants are companies incorporated in terms of the laws of Zimbabwe. The second appellant is a wholly owned subsidiary of the first appellant.

The respondent is a company incorporated in terms of the laws of South Africa carrying on the business of mining in Zimbabwe.

In contemplation of a Joint Venture Agreement in pursuit of mining and exportation of chrome, the respondent made an offer to the first appellant to acquire forty percent of shares in the second appellant.  The forty percent share capital to be issued to the respondent was to be in recognition of US$400,000= which the respondent paid to the first appellant as the sole shareholder of the second appellant. In other words, the US$400,000= was the respondent's capital investment in the chrome mining project subject to a future joint venture agreement. The respondent also alleged that it contributed US$15,616=61 as working capital to the joint venture - which amount was not challenged by the appellants.

The agreement was signed on behalf of the parties on 11 March 2011.

On 26 June 2013, the second appellant and the respondent subsequently entered into a Joint Venture Agreement to engage in chrome mining and export. The appellants were to mine and export unprocessed chrome to the respondent. The first appellant's mandate was to manage the joint venture company (second appellant) on a day to day basis. Certain chrome claims subject to the joint venture agreement were registered in the name of the first appellant and the first appellant was to transfer to the respondent all other mining rights relating to the chrome mining project by 31 December 2013.

Forty percent shares existing in the second appellant were issued to the respondent. At the time of the signing of the Joint Venture Agreement, a Shareholders Agreement to regulate the relationship and other related issues between the parties as shareholders of the second appellant was yet to be drawn up and signed by the parties.

Among the clauses in the Joint Venture Agreement, there was one that required the parties to choose their domicilium citandi et executandi.

The second appellant expressly chose 15 Harrow Avenue, Avondale, Harare, Zimbabwe as its domicilium citandi et executandi. The same address appeared on the face of the Joint Venture Agreement which agreement bore the name of the first appellant.

The Government of Zimbabwe banned the export of un-processed chrome which circumstance undermined the purpose of the joint venture. The appellants could mine but not export unprocessed chrome. Due to the ban on the export of unprocessed chrome, the respondent sought to reverse the joint venture agreement.

The respondent alleged that on 17 March 2014 its representatives held a meeting with those of the first appellant with the view of reaching agreement on the value of what the appellants owed it. On 24 April 2014, one E.F. Mugwagwa wrote to the first appellant on behalf of the respondent informing them of how much they owed. He informed the first appellant that the respondent expected to receive payment proposals.

On 20 May 2014, the first appellant, represented by Thomas Gono, wrote to the respondent acknowledging indebtedness to it in the sum of US$415,616=66. The appellants undertook to pay the money in instalments over a period of three years.

The first appellant failed to honour its undertaking.

The respondent issued summons against the appellants in the  High Court claiming payment of the sum of US$415,616=66 plus interest at the prescribed rate with effect from 1 May 2014 together with costs of suit on a legal practitioner and own client scale.

The summons was served at 15 Harrow Avenue, Avondale, Harare which address the appellants had indicated on the Joint Venture Agreement as the domicilium citandi et excutandi. The summons was served by the Sheriff by affixing it to an outer gate after an unsuccessful search. The appellants did not enter appearance to defend by the due date.

On 2 February 2015, default judgment in the amount claimed plus interest was entered against the appellants.

On 27 February 2015, the Deputy Sheriff attached the first appellant's mining equipment. The appellants alleged that they got to know that default judgment had been entered against them on 27 February 2015.  They made an application for rescission of judgment in terms of Rule 63 of the High Court Rules on 3 March 2015.

The appellants sought to have the default judgment rescinded alleging that they did not see the summons which was served at 15 Harrow Avenue, Avondale, Harare - the address they chose as their domicilium citandi et executandi. Their argument was that they carried on their business from 16 Kenilworth Road, Newlands, Harare. The argument was that the summons should have been served at that address and not at 15 Harrow Avenue, Avondale, Harare.

The appellants further argued that the respondent's cause of action did not arise from the Joint Venture Agreement hence service of summons on the second appellant at 15 Harrow Avenue, Avondale, Harare was not valid service.

Lastly, the appellants argued that there had been no agreement to pay the respondent the sum of US$415,616=66 despite the first appellant's proposal in the letter dated 20 May 2014.

The issue before the court a quo was whether the appellant had shown good and sufficient cause for rescission of the default judgment.

In Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S), SANDURA JA recalled that the requirement that there be good and sufficient cause to rescind judgment is a common law principle. Reliance was made on Chetty v Law Society, Transvaal 1985 (2) SA 756 (A)…, where it was said:

“The appellant's claim for rescission of the judgment…, must be considered in terms of the common law, which empowers the Court to rescind a judgment obtained on default of appearance, provided sufficient cause thereof has been shown. (See De Wet & Ors v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042, and Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163). The term 'sufficient cause' (or 'good cause') defies precise or comprehensive definition for many and various factors to be considered.  (See Cairn's Executors v Gaarn 1912 AD 181 at 186 per INNES JA). But it is clear that in principle and in the long-standing practice of our Courts two essential elements of 'sufficient cause' for rescission of a judgment by default are:

(i) That the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii) That on the merits such party has a bona fide defence which, prima facie, carries some prospect of success. (De Wet's case supra at 1042; PE Bosman Transport Works Committee and Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith N.O. and Anor; Smith N.O. v Brummer 1954 (3) SA 352 (O) at 357-8).”

The court a quo considered whether or not there had been a reasonable explanation for the default, the bona fides of the application for rescission of judgment and whether or not there existed a bona fide defence on the merits should the court grant the application for rescission of the default judgment.

The learned judge found that the appellants had failed to give a reasonable and acceptable explanation for the default. He also found that there were no prospects of success on the merits. The application was dismissed with costs.

The appellants appealed against the decision of the court a quo on the following grounds:

1. The learned judge in the court a quo erred in finding that the domicilium citandi et executandi in the Joint Venture Agreement (JVA) applied to the dispute between the parties.

2. Even if the Joint Venture Agreement is applicable no proper service was effected as stipulated in paragraph 14.4.2 of the Joint Venture Agreement.

3. The learned judge in the court a quo erred by concluding that the appellants admitted liability.

4. The learned judge in the court a quo erred by finding that the debt to the first respondent was due in light of the fact that the due date for the first year payment was not due.

5. All in all, the learned judge in the court a quo erred in finding that good and sufficient cause had not been established warranting the rescission of the default judgment.

Counsel for the appellants premised his oral argument on the allegation that the appellants were not in wilful default. 

The test is whether or not good and sufficient cause to rescind a default judgment has been established.  It is not whether or not there was wilful default.

In an application for rescission of default judgment, a court exercises a discretion. (Smethwick Trading (Pvt) Ltd & Another v Rome Furniture Manufacturers (Pvt) Ltd SC51-15). It is trite that an appellate court will not interfere with the exercise of discretion by the lower court unless serious misdirection is shown. In Barros & Another v Chimphonda 1999 (1) ZLR 58 (SC) GUBBAY CJ said:

“It is not enough that the appellate court thinks that it would have taken a different course from that of the trial court. It must appear that some error had been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant considerations to affects it s decision, making mistakes of fact or not taking into account relevant considerations.”

Rule 63 of the High Court Rules 1971 reads:

“63. Court may set aside judgment given in default

(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.”

A simple reading of the Rule brings to the fore two issues;

(i) The first is that a party against whom a judgment had been obtained in default, whether under these Rules or any other law, is entitled to approach the court to have such a judgment rescinded or set aside.

(ii) The second, and most important requirement under the Rule, is that a litigant wishing to avail himself of this indulgence from the court must file a court application for relief not more than a month after he has knowledge of the default judgment.

The default related to in terms of Rule 63 speaks to a situation where a party has been served with court process and fails to either respond to it or attend a scheduled hearing in relation thereto….,.

In an application for rescission of a default judgment, the court must be satisfied that there is good and sufficient cause to rescind the order. In Makoni v CBZ Bank Limited HH357-16, CHITAKUNYE J quoted the case of Stockil v Griffiths 1992 (1) ZLR 172 (S)…, wherein GUBBAY CJ aptly noted that:-

“The factors which a court will take into account in determining whether an applicant 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 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

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

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

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

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

From this authority, it is clear that the test of a good and sufficient cause involves the establishment of the following factors:

(a) Explanation for the default must be reasonable;

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

(c) The bona fides of the defence on the merits of the case; and

On 8 March 2016, I dismissed with costs the application for rescission of a default judgement entered against the applicant on 23 July 2015.

These are the reasons for my decision.

The respondent issued summons against the applicant in case no. HC2524/2015 on 19 March 2015. The summons was duly served on the applicant on 30 April 2015. As was expected, the applicant entered appearance to defend through his legal practitioners of record, Messrs Nyikadzino, Simango & Associates.

There was no reference of the legal practitioner handling the matter on that notice of appearance to defend.

The appearance to defend was duly served on the respondent's legal practitioners on 20 May 2015.

Pursuant to the notice of appearance to defend, the respondent then issued a Notice to Plead against the applicant on 27 May 2015. That Notice was served on Messrs Nyikadzino, Simango & Associates on 1 June 2015.

Upon receipt of the Notice to Plead and Intention to Bar, the applicant did not file any plea or other response with the result that the Notice to Plead was filed as a bar on the 23 June 2015. A copy of that bar was served on Messrs Nyikadzino, Simango & Associates on 25 June 2015.

On 10 July 2015, the respondent made a chamber application for default judgement. The default judgement was duly granted on 23 July 2015.

On 24 July 2015, a day after the default judgement was granted, the applicant purported to file a Chamber Application for the upliftment of the bar in terms of Rule 84 of the High Court Rules, 1971 as amended.

Subsequently, the present application for the rescission of the default judgement was filed by the applicant on 12 August 2015.

The application is opposed.

Rule 63 of the High Court Rules, 1971 provides that:-

(i) A party against whom judgement 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 judgement, for the judgement to be set aside.

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

The onus is thus on the applicant to show that there is good and sufficient cause for the court to set aside the judgement. In Stockil v Griffiths 1992 (1) ZLR 172 (S)…, GUBBAY CJ aptly noted that:-

“The factors which a court will take into account in determining whether an applicant 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 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

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

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

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

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

What emerges from the plethora of cases is that the phrase 'good and sufficient cause' has been interpreted to mean that for one to succeed in an application for rescission of judgement one must satisfy the following factors:

(i) The explanation for the reason for the default must be reasonable;

(ii) The bona fide of the application to rescind the judgement;

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

In discussing the above elements and what weight to attach to each, CHINHENGO J aptly noted, in V Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1 ) ZLR 378 (H)…, that:-

“Each element of the test of good and sufficient cause may be decisive on its own in any particular case but that does not mean that it becomes the only element or that the court has lost regard of the other elements of establishing good and sufficient cause.”

Explanation for the default

In casu, the applicant argued that he was not in wilful default. The reason for failure to file a plea was that the Notice to Plead and Intention to Bar had no reference for the lawyer who was handling the matter at Nyikadzino, Simango & Associates, hence, upon receiving the Notice to Plead and Intention to Bar, his lawyers did not know which lawyer was seized with the matter. They only came to know that it was a Mr Gwizo when the applicant came following up on his case. By that time, Mr Gwizo had left the law firm. As a result of this lack of reference his legal practitioners could not respond to the Notice to Plead.

Mr Simango, for the applicant, also deposed to an affidavit confirming the lack of reference on the Notice to Plead and that he inquired with his secretary as to which lawyer was handling the case to no avail. He however does not say he inquired with the respondent's legal practitioner. He simply left it at that.

The respondent, on the other hand, contended that the lack of a reference of the lawyer handling the case emanated from the notice of appearance to defend that the applicant, through his legal practitioner, had filed. That appearance to defend has no reference. Counsel for the respondent went on to say that had Mr Simango been serious he could easily have contacted the respondent's legal practitioner to inquire on this but he did not. It is thus a lame excuse.

I am of the view that the applicant's legal practitioners took a lackadaisical approach to the matter. This is confirmed by the fact that even when it was pointed out that the error was on their part no affidavit was obtained from the secretary or the Mr Gwizo as to what could have happened for the appearance to defend to have no reference and what effort was made to locate the lawyer handling the matter. The applicant's legal practitioner seemed to have taken it as a foregone conclusion that his version will be accepted.

It is pertinent to note that a Notice to Plead and Intention to Bar is clear on the timeframe for the defendant to act failure of which a bar will be entered.

In casu, the notice required the plea to be filed within five (5) days from date of service of the notice; failure of which a bar will be effected. Mr Simango, for the applicant, having been served with such notice on 1 of June 2015 virtually took no action in terms of responding to the notice hence the bar was effected on 23 June 2015. As already alluded to…, a chamber application to uplift the bar was only made on 24 July 2015 - after judgement had been entered.

Such tardiness betrays the basic ethos of the legal profession.

A litigant may, at times, not escape the consequences of their legal practitioner's tardiness.

In Ndlovu v Guardforce Investments (Pvt) Ltd & Others 2014 (1) ZLR 25 (H)…, the court held that:-

“Legal practitioners must always be aware that they operate within time limits and in terms of laid down procedures. In applications for rescission of judgement, consequent upon a failure to act timeously, it is the duty of the legal practitioner to give a credible and convincing explanation as to why he failed to act within the time limits. The time has come for legal practitioners to adhere to the time limits set in the Rules. The approach ought to be that the court may only excuse failure to act where the explanation given is credible. A litigant who chooses a legal practitioner to act on his behalf expects the legal practitioner to adhere to time limits set in the Rules. The court should decline to exercise its judicial discretion in favour of applicants where the explanation is not credible - even where the fault of the legal practitioner will have adverse consequences upon the litigant.”

In Hughber Petroleum (Pvt) Ltd & Another v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H)…, MATHONSI J was quite emphatic on the need to put legal practitioners on their guard when he said that:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice but also to protect their integrity against the machinations of the bad elements in the profession. Legal Practitioners who take the court for granted in this manner run the risk of having costs granted against them de bonis propiis in order to discourage egregious departures from proper standards of professional behaviour.”

The above sentiments may seem harsh on the legal practitioners but a cursory look at a plethora of cases makes sad reading for the legal profession. Time and again this court has called upon legal practitioners to put their act together and avoid a cavalier approach to their work. Indeed, as far back as 1988 in Kombayi v Berkhout 1988 (1) ZLR 53 (S) the court  gave such a warning and cited with approval the observation by STEYN CJ in Saloojee & Another NNO v Minister of Community Development 1952 (2) SA 135 (A)…, that:-

“There is a limit beyond which a litigant cannot escape the results 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 court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”

In casu, it is apparent that the predicament the applicant finds himself in emanated from the legal practitioners of his choice in failing to include a reference on the appearance to defend. That law firm again failed to act diligently when served with the Notice to Plead and Intention to Bar. As if that was not enough that law firm wishes to blame the respondent's legal practitioner for not providing a reference to enable it to know the legal practitioner handling the matter. In short, the law firm wishes to profit from its own ineptitude.

This cannot be.

I am of the view that the explanation proffered by the applicant's legal practitioner is not credible. Had he been diligent he would not have sat back as the time to file a plea lapsed. The explanation is simply an attempt to cover up an inexcusable tardiness on the party of the legal practitioner.

The applicant's case was also to the effect that the respondent should not have applied for a default judgment as he had filed a request for further particulars on about 28 May 2015 and these had not yet been furnished. The applicant alleged he filed this request on his own as he had fallen out with his legal practitioner, Mr Gwizo.

In both the founding affidavit and the answering affidavit, the applicant does not state when the request for further particulars was served on the respondent. The copy of the request for further particulars attached to the answering affidavit is not clear as to when it was filed with the court, if at all it was filed. No attempt was made by the applicant's legal practitioner to provide a copy that shows the date when the request was filed at court. Equally, no attempt was made to produce proof of service of the same on the respondent's legal practitioners.

Taking into account the cavalier attitude displayed by both the applicant and his legal practitioner in this matter it may as well be that the request for further particulars was not properly filed and was never served on the respondent's legal practitioners. Had the request been properly filed, the probability is that the judge who was seized with the application for judgement would not have granted judgment.

Another aspect to note is that whilst arguing that he had fallen out with his lawyer, his request for further particulars still has that law firm's address and the applicant went to that law firm to check on the progress of his case. Surely, if he had fallen out with the lawyer, and thus opted to act on his own, he would not have used the law firm's address and even gone to check with them on progress for a case he was now handling himself.

I am of the view that the applicant is not being candid with the court on the circumstances of the request for further particulars.

After reserving judgment in this matter, my attention was drawn to the fact that the first respondent, who was not in attendance at the hearing, had in fact been sitting in motion court when the matter was called in another courtroom. 

He had therefore not ignored the notice of set down but had strayed to the wrong court. 

What then exercised my mind was whether to re-set the matter down in order to afford the respondent an opportunity to be heard. Considering that all the necessary papers had been filed and that the opposition to the application was not meritable at all coupled with the fact that the respondent had defaulted (he ignored the notice put up by the Registrar informing parties of the courtroom where opposed matters were being heard), I decided to exercise my discretion against the respondent.

I have said that the application should not have been opposed.

It is a Rule 63 application, and, in terms of Rule 63(2), the court may set aside a judgment given in default where there is “good and sufficient cause” to do so. The factors which the court will take into account in determining good and sufficient cause have been discussed in a line of cases which include Roland and Another v McDonell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210; Stockhill v Griffiths 1992 (1) ZLR 172 (S).

They are;

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

(ii) The bona fides of the application for rescission of judgment;

(iii) The bona fides of the defence on the merits; and

This is an application for the rescission of default judgment obtained by the respondent on 2 February 2015 against the applicants.

The application is being made in terms of Rule 63 of the High Court Rules 1971. The applicants claimed to have become aware of the default judgment on 27 February 2015….,.

All the parties were in agreement that in order for an application for rescission of default judgment to succeed, the applicants ought to demonstrate that there is good and sufficient cause to do so. See Order 9 Rule 63(2) of the High Court Rules, 1971.

From the authorities cited by both parties, it is trite that the factors which are taken into account in deciding whether a default judgment should be rescinded 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 and whether that defence carries some prospects of success.

See Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S)…,.; Deweras Farm (Pvt) Ltd v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)….,.; Beitbridge Rural District Council v Russell Construction Co. 1998 (2) ZLR 190 (S)…,.; Sixth Century Construction (Pvt) Ltd  v Zimbabwe Electricity Transmission Company (Pvt) Ltd HH85- 14; and GD Haulage (Pvt) Ltd v Mumugwi Bus Services ( Pvt) Ltd 1979 RLR 447.

A party seeking to approach this court for a rescission of a judgment entered in the absence of that party must do so within one (1) month of becoming aware of the existence of the judgment sought to be rescinded. That is in terms of Rule 63(1) of the High Court Rules, 1971. If that is not done, then, condonation of the late filing of the application must be sought. The point is made by SANDURA JA in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR (S)…, that:

This court application was dealt with by myself on the eve of Christmas on the Family Court unopposed roll.

The brief background to the application is as follows:

1. The plaintiff sued the defendant (his wife of 30 years) for divorce. The marriage was blessed with four (4) children, all adults and self-supporting.

2. There were no ancillary issues concerning maintenance and related issues except for the issue of property-sharing in respect of which the plaintiff averred that the parties had shared their property upon separation and sought an order that each party retains what was possessed by that party upon divorce.

3. When the defendant was served with summons, she did not enter appearance to defend.

The plaintiff followed up on the non-appearance to defend by filing and serving the defendant with a “Notice to Plead and Intention to Bar.”

I do not know why the plaintiff refers to the notice as 'Notice to Plead and Intention to Bar' because, in terms of Rule 272(1)(a) as read with Form No.30, the notice is, in the Rules, styled 'Notice to Plead'. The body of the notice to plead, in terms of Rule 272(1)(a), should put the defendant on terms to “plead, answer or except, or make a claim in reconvention…,.”

The plaintiff's notice, in this case, calls upon the defendant to file their (sic) plea.

Although I did not take issue with the wording of the notice, I nonetheless remind legal practitioners and parties of the need to comply with the wording of the notice, as provided for in the Rules, because the filing and service of the notices is a peremptory requirement in terms of Rule 272(1)(a). Since it is peremptory to file and serve it, such notice should be drafted in the wording as given in the Rules.

4. After serving the notice which I have commented upon, the plaintiff, in compliance with Rule 272(2)(b), caused personal service of the notice of set down of the application for a final order of divorce.

5. Counsel for the plaintiff, upon the matter being called, stood up and submitted that the plaintiff's papers were in order. I was satisfied that save for the defective notice to plead which I could, and did, condone, the papers were in order. I accordingly granted a decree of divorce and other relief as set out in the draft order and proceeded to deal with the rest of the roll.

6. When the Registrar stood up and advised me that I had completed the roll, I noticed that there was a group of people comprising an elderly woman and three elderly men who were whispering to each other. The woman was making reference to some paper which she was holding as the parties whispered to each other.

7. I considered it prudent to make enquiry of the group as to whether they had any issues to do with the completed Court Roll because I had noticed their presence from the time the court commenced proceedings for the day. Upon enquiry by the Registrar, the elderly woman stood up and identified herself as the defendant in the instant matter. I advised the woman that I had already granted the divorce in the matter and ancillary relief. She indicated that she had thought that she would be called and given an opportunity to speak. I asked her whether she had advised the plaintiff's legal practitioner of her presence and she said that she had not done so as she did not know him.

8. I was faced with a situation in which I was functus officio but at the same time having power to use the provisions of Rule 449 to revisit my order. However, the powers provided to the court or judge under Rule 449 are exercisable on application. The Rule refers to an application being made by the affected party.

The Rule does not refer to a “court application” being made.

The distinction is material because a court application is referred to and defined in the Rules but 'an application' is not.

I was inclined to interpret the Rule as allowing an affected party to make an application which could be made orally. I was also fortified in my reasoning that I could hear the defendant because Rule 449 is very wide and allows the court or judge, mero motu, to revisit its/his order for purposes of correction, rescission or variation of the same for reasons set out in sub-paragraph(s) (a), (b) and (c) of the said Rule.

9. I decided to hear what the defendant had to say, being mindful of Rule 272(2) which provides that the judge or court should not vary, correct or rescind the order granted unless parties who may be affected have been given notice of the proposed order. I was satisfied that I would not offend the Rule if I was to hear the defendant's application, and then, only if I was satisfied that there were good grounds to vary, rescind or correct my order, would I cause that notice of my intended order be given to affected parties before I alter my previously given order.

10. Happily, the granting of the indulgence to hear the defendant was a blessing in disguise.

She wanted the court to explain to her the order which had been granted. The order, as set out in the draft order which I had already endorsed, was explained to her. She had no qualms with the order and was satisfied with it. She and other members in her group exchanged handshakes and were all smiles. When I enquired as to why she had appeared apprehensive initially, the defendant responded that she did not trust her husband and was afraid that the husband could have altered the order which he had prayed for in the summons which she had not defended. My order therefore remained extant….,.

The order of this court therefore remains that:

The plaintiff is granted an order in terms of the Draft Order.

The grounds for rescission of a judgment made in default are well set out.

There must be must be a satisfactory explanation of why the applicant was in default. The bona fides of the applicant to rescind the default judgment is also considered whilst there must also be a reasonable defence on the merits which carries some prospect of success.

See Stockhill v Griffiths 1992 (1) ZLR 172 (S) and Mdokwani v Shoniwa 1992 (1) ZLR 269 (S).

The applicant seeks a rescission of a judgment entered against it in default on fools day in 2014 in terms of which this court, per MANGOTA J, registered an arbitral award made by an arbitrator, R Matsikidze on 16 October 2013 in terms of section 98(14) of the Labour Act [Chapter 28:01].

Prior to the grant of the order for registration, the applicant had been served with the application for registration on 13 March 2014. It was served upon its Human Resources Manager, one Simba Munondo, who says on that very same day he had visited a dentist who authorised that he be given over two weeks sick leave. It was as a result of what he terms his “precarious health condition” that he forgot about the application resulting in the judgment being granted in default.

Simba Munondo says it came as a surprise when the Sheriff came to attach property on 29 May 2014, more than 2 months after the application had been served and forgotten. The applicant's default was not wilful. Given that on 4 December 2013, the applicant had filed an application in the Labour Court for condonation of the late noting of an appeal against the arbitral award, which application is yet to be set down more than a year later, the arbitral award should not have been registered. The applicant has a good defence against the application for registration. For that reason, the order for registration should be rescinded to accord the applicant an opportunity to contest that application.

The reasons given for the applicant's failure to act upon receipt of the application for registration of the arbitral award are tenuous to say the least. How can a whole company which boasts of the employment of a Human Resources Manager, in the form of Simba Munondo, meaning that it has other departments as well, suffer paralysis because its Human Resources Manager has gone to consult a dentist and been given time off? Surely, someone else remained in the company to run its affairs. Simba Munondo must have had subordinates that held the fort when he was away.

In any event, how can a senior person like Simba Munondo fail to delegate responsibility to someone else and be so affected by a dental problem as to be unable to assign someone to deal with the matter?

Clearly, no reasonable explanation has been given for the failure to act timeously.

The application has been made in terms of Rule 63 of the High Court of Zimbabwe Rules, 1971 and the applicant should satisfy the court that there is good and sufficient cause to rescind the judgment granted in default. Good and sufficient cause to rescind has been stated as being;

(i) The reasonableness of the explanation 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 prospects of success.

These factors must be considered not only individually but also in conjuction with one another.

Stockhill v Griffiths 1992 (1) ZLR 172 (S)…,.; Roland & Anor v McDonnel 1986 (2) ZLR 216 (S)…,.; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…,.

Whichever way one considers the factors, the applicant has failed to show good and sufficient cause to rescind. I have already stated that no reasonable explanation has been given for failure to act. In addition, the application itself lacks bona fides and the applicant has not the slightest defence whatsoever to the application for registration of the arbitral award….,.

I have no doubt in my mind that the applicant has been grossly remiss in their handling of this matter as a result of which we now have an arbitral award made in favour of an employee 1 year 3 months ago which has not been honoured and has not been contested either. Meanwhile, the employee remains wallowing in poverty and was definitely justified in approaching this court for the relief of registration. He could not be expected to wait for the old rickety chariot of Capri to trudge along treacherously at its chameleon speed towards delivery of justice.

There is a discernable attempt to deliberately slow down the wheels of justice by an applicant intent on flaunting its financial muscle in the forlon hope of wearing down the employee who appeared before me self-acting and obviously unable to afford legal representation.

Having come to the conclusion that the application lacks merit, it simply cannot succeed…,.

In the result, the application is hereby dismissed with costs.

It has been repeatedly stated that an applicant who intends to bring a rescission of judgement application out of time must first seek condonation for the delay. Without an application for condonation, no indulgence can be extended to such an applicant:

Viking Wodwork (Pvt) Ltd v Blue Bells Enterprises Ltd 1998 (2) ZLR 249 (S); Sai Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd 2009 (1) ZLR 352 (H); Ncube v CBZ Bank Ltd & Ors HB99-11…,.

In deciding whether an applicant for rescission of judgment has discharged the onus of proving “good and sufficient” cause as provided for in Rule 63(2) of the High Court of Zimbabwe Rules 1971, the court has regard to the reasonableness of the applicant's explanation for the default; the bona fides of the application to rescind the judgment; and the bona fides of the defence on the merits of the case which carries some prospects of success. Barclays Bank of Zimbabwe Ltd v C C International (Pvt)Ltd SC16-86; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…,.

As stated in Stockill v Griffiths 1992 (1) ZLR 172 (S)…,;

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

This is an opposed application for rescission of a default judgment.

On 21 November 2013 this court granted the following default judgment:

“IT IS ORDERED THAT:

1. Toyota Sequoia Registration Number ACO 3422, Engine Number 310R-5599048, chasis number STDDN5G18CS063229 be and is hereby released to the applicant.

2. The 1^st and 2^nd respondent be and are hereby ordered to release the Toyota Sequoia motor vehicle to the applicant forthwith upon service of this order to them by the Sheriff or his Deputy.”

It is the above judgment that the applicants seek to have set aside arguing that the first applicant, who received the application late, should not have been cited. The applicant also states that the Commissioner General of the Zimbabwe Republic Police should have been cited in the chamber application that resulted in the granting of the default judgment.

The first applicant states that the vehicle referred to in the order belonged to one Farai Auxuilia Chidoori (Chidoori) and not to the respondent herein. The vehicle in question had been held by the police as an exhibit in a criminal trial and, due to the above order, when the trial ended, the vehicle was released to the respondent. The applicants also argue that, if the default order had not been granted, the vehicle would not have been surrendered to the respondent.

The respondent argued that the citation of the first applicant was not fatal and that the issue cannot be raised now when there was no such reaction to the chamber application when the first applicant deposed to opposing papers on 14 November 2013. As for the citation of the Commissioner General of the Police, the respondent said it was non-consequential since the order had already been complied with.

I agree with the position taken by the respondent because both preliminary issues were not fatal to the chamber application. They were matters that would have been attended to had the applicants cared to respond to the court papers in time. In any case, the first applicant deposed to an affidavit on 14 November 2013 but never raised the issues.

With respect to the merits of this case, I am not persuaded to accept that the applicants were not in wilful default.

In paragraphs 6 and 7 of his founding affidavit, the first applicant states as follows:

“6. On 25 October 2013 the respondent filed the aforementioned chamber application with this Honourable Court. The said application wrongly cited the 1^st applicant as Chief Superintendent Moyo and also did not cite the Commissioner General of the Zimbabwe Republic Police as is required by the Rules of this Honourable Court.

7. The 1^st applicant thereafter received the application late and could not file his opposing papers with the time limits provided for in the rules of this Honourable Court.”

We are, in paragraph 7 above, told that the application was received late but no date is given. I take that to be a deliberate ploy to mislead the court. When such deliberate withholding of information takes place, the principle in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 applies. In that case, it was stated as follows:

“It is trite that if a litigant gives false evidence his story will be discarded and the same adverse inferences may be drawn as if he had not given evidence at all – see Tumahole Bereg v R (1949) AC 253 and South African Law of Evidence by LH HOFFMANN and D T ZEFFERT (3ed) at page 472. If a litigant lies about a particular incident, the court may infer that there is something about it which he wishes to hide.”

I agree with the above, which I also take to apply to deliberate omissions.

On her part, the respondent states that:

“The first applicant was served through detective G. Chiwande on 25 October 2013.”

I have no reason to doubt the averment. Detective G Chiwande has not been made to deny or confirm the statement.

The papers before me show that on 14 November 2013 the first applicant deposed to opposing papers. However, that was already out of the time and judgment had already been obtained on 21 November 2013. Apart from the filing of the opposing papers, there is no evidence of further and immediate engagement with the respondent or her legal practitioners. That lack of action eventually led to the granting of the High Court Order in the lower court.

Furthermore, paragraph 11 of the founding affidavit filed by the first applicant reads as follows:

“11. The defence has good prospects of success on the merits. The respondent had no legal right to claim the motor vehicle as the legal owner of the motor vehicle, a Toyota Suquoia, is Farai Auxullia Chindoori.”

Clearly, it is Farai Auxuilia Chidoori who has an interest in this matter. The applicants can only assist her if so requested. Their interest in this matter remains a mystery, and, as far as I read the papers, is non-existent.

In the main, the applicants have not advanced a reasonable explanation for the delay in responding to the chamber application. In any case, the evidence by the applicants shows that the whole court process should be spear-headed by Farai Auxuilia Chidoori - the purported owner of the vehicle. It is the said Farai Auxuilia Chidoori who should place before the court clear prospects that she can, with the support of the law, regain the vehicle from the respondent. The interests of the applicants in the vehicle fell away when the prosecution in the lower court ended.

There was never any need for the applicants to file this application and to that end costs on a higher scale would be justifiable.

In view of the foregoing, the application ought not to succeed. The application is dismissed with costs on a higher scale.

Where the application for rescission itself lacks merit, a court should not grant the indulgence of a stay of execution because doing so would offend against the time tested principle of our law that there should be finality in litigation. In such circumstances, the default judgement would prevail and therefore a stay of execution should purposely be refused. The onus is on the applicant, in such an application, to satisfy the court that he is entitled to an indulgence. It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of an indulgence: Cairns Executors v Goarn 1912 AD181…,.

In Roland & Anor v McDonnell 1986 (2) ZLR 216 (S) the head note reads:

“A judgment given by consent may be set aside on good and sufficient cause; 'good and sufficient cause', in this context, is to be determined according to the same principles by which it is to be determined in an application to set aside a judgment given by default. Moreover, a party will not normally be permitted to fight over again a battle which has been already fought unless there has been a significant change in circumstances or the party has become aware of facts which he could not reasonably have known or found out in the first encounter.”

The same principles applied in determining good and sufficient cause within the meaning of Rule 63 therefore apply to an application for the rescission of judgment made in terms of Rule 56. At p226 the court stated these as:

“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 conjuction with each other and cumulatively.”

See also Stockill v Griffiths 1992 (1) ZLR 172 (S)…, where the point is strongly underscored that:

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

What constitutes wilful default and a bona fide defence depend on the merits of each case.

In Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC) McNALLY JA held that wilful default occurred when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter. See also Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC)….,.

“Good and sufficient” cause is the sum total of all the facts explaining the default and merits of the defence. These facts are considered cumulatively. No single aspect is decisive. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC), even though the court found that the explanation for the default was acceptable, it was far outweighed by the unreasonableness of the defence proffered on the merits.

The dispute between the parties first appeared before me as a chamber application for a default judgment. The application was instituted by the first respondent who was then the applicant. The application was against the second respondent and the applicants who were the defendants in the main case.

The default judgment was premised on the second respondent not having entered appearance to defend.

The application cites the second defendant and the applicants as respondents though the body of the application specifically states that “application for default judgment is hereby made against the first defendant only”. The second respondent is the first defendant in the main action. The applicants, who are the second and third defendants in the main action, had entered appearance to defend.

The default judgment was granted on the following terms:

“The first defendant is hereby barred, restrained and interdicted from issuing to either the second defendant or the third defendant or both the second and third defendants a tobacco auction floor licence issued in terms of section 44 of the Tobacco Marketing and Levy Act [Cap 18:12], in respect of premises known as the Boka Tobacco Auction Floors situate on the 13 kilometer peg along Simon Mazorodze Road Harare.”

The applicants have, after initially asking the court to rescind the default judgment through correspondence, which was vigorously opposed by the first respondent, now filed a chamber application, for the rescission of the default judgment in terms of Rule 449(1)a) of the High Court Rules. It was submitted on their behalf that the default judgment was erroneously granted in the absence of interested parties. Rule 449 provides as follows:

“(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Counsel for the applicants filed heads of arguments in which he submitted that the applicants were not given notice of the application for default judgment, and that the default judgment was therefore granted in the absence of interested parties. He submitted that the applicants are interested parties because the order sought and granted directly affect them.

Counsel for the respondents filed heads of arguments in which he argued that there is no rule which obliges an applicant for a default judgment against a co-defendant who will not have entered appearance to defend, to serve co-defendants who will have entered appearance to defend.

The first issue is, therefore, whether or not, I should have directed that they be served as the order sought and granted, was intended to and affects them directly. It effectively takes from them that which they had entered appearance to defend.

This is an application in terms of Order 9 Rule 63 of the High Court Rules, 1971 for the setting aside of a judgment given in default of the applicant in Case No. HC 275/11. The judgment was given on 16 November 2012.

The application is opposed by the respondent. The background facts may be summarised as follows:

In January 2011, the respondent instituted proceedings by way of summons under Case No. HC275/11 claiming payment of damages for defamation against the applicant. The applicant entered appearance to defend the claim and filed a plea. The matter went up to the pre-trial conference stage. On 22 November 2011 the applicant's defence was struck out following his default at the pre trial conference. The matter was then referred to be dealt with as an unopposed matter for the respondent, as the plaintiff, to prove his damages. Upon becoming aware of the striking out of his plea the applicant made a chamber application, under Case No. HC12658/11, for the setting aside of the order granted in his default at the pre-trial conference and for the reinstatement of his plea. That application was filed on 20 December 2011. It was dismissed with costs on the same day, 16 November 2012, and in the same order granted against the applicant for payment of damages for defamation in the sum of US$10 million. The main case therefore proceeded as an unopposed matter.

That is the judgment which the applicant invites this court to rescind in the instant application.

The respondent objected to the application on the basis that the matter is res judicata. The objection is premised upon the fact that an earlier application made on behalf of the applicant for the setting aside of the order made in default of the applicant at the pre-trial conference was dismissed with costs.

But that application related to the order given at the pre-trial conference.

I am not prepared to accept that the facts relevant to the instant application were determined by this court. The instant application relates to the default of the applicant in relation to the order which was granted on 16 November 2012. There are facts which may be unique to the applicant's default on 16 November 2012 which would not be relevant to his default at the pre trial conference. The default on the 16^th was consequent upon the rejection of the applicant's application in HC12658/11. The applicant's legal practitioner was in attendance on the day that the order for payment of damages was given. Further, the order dismissing the application for rescission of judgment filed in HC12658/11 makes no reference to that case number at all. It also contains no reasons which would enable the court to consider whether any factual findings were made on the basis of which the defence of issue estoppel may be sustained. For those reasons, I do not accept that the matters raised in this application are res judicata. I also do not accept that the defence of issue estoppel can be sustained on the basis of the facts of this matter.

Order 9 Rule 63 provides as follows:

“(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 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.”

The application in casu was instituted on 23 November 2012, some seven days after the default judgment was granted. It was therefore made timeously in terms of sub-rule (1). What must be considered, in my view, is whether “good and sufficient cause” has been established to trigger the exercise by this court of its discretion in favour of the applicant.

The expression “good and sufficient cause” bears no precise definition. The approach of the courts, which has stood the test of time, is that in considering whether good and sufficient cause has been established, in the context of rescission of a default judgment, the court will take into account the following factors:

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

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

(c) The bona fides of the defence on the merits of the case and whether that defence carries some prospect of success.

The above factors are considered not only individually but in conjunction with one another and with the application as a whole. See Stockil v Griffiths 1992 (1) ZLR 172 (S)…,.; Mdokwani v Shoniwa 1992 (1) ZLR 269 (S)…,. Put in other words, the court will examine and weigh the above factors one against the other, and also take into account all the other circumstances which may be relevant to the case.

The court has cautioned against the unnecessary fettering of its discretion by embracing a rigid approach in the consideration of whether good and sufficient cause has been established as contemplated by Rule 63(2). See Dewera's Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)…,.; Dewera's Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation 1997 (2) ZLR 47 (H)…,.

The applicant's explanation for his default is that he was not aware of the date of the set down. The Notice of Set Down was not served upon him. It was served at an address in the United Kingdom at which he did not reside. That address was stated as his last known address in the notice of renunciation of agency which was filed by his legal practitioners when they renounced agency.

That fact does not take away the reasonableness of the explanation for default, which is that the applicant did not see the Notice of Set Down and was not, therefore, aware of the date of the pre-trial conference.

Indeed, even in cases where service was effected at a party's domicilium citandi et executandi the courts have been prepared to accept as reasonable an explanation tendered by the party if he did not see the papers. See Stockil v Griffiths 1992 (1) ZLR 172 (S)…,.

The applicant acted promptly upon realizing that his defence had been struck out following his failure to attend the pre-trial conference. He became aware of the default judgment in Case No. HC275/11 a day after it had been granted. He instituted the instant application within seven days of the order being made. His conduct shows that the application is being made with the bona fide intention to protect his interests.

As regards the merits of the defence, the court must be satisfied that the applicant has set forth facts which disclose “a defence which, on the face of it, cannot be rejected out of hand and warrants investigation”. Mdokwani v Shoniwa 1992 (1) ZLR 269 (S)…,. The facts alleged and the evidence, if any, tendered, must show that the defence is being advanced in good faith and not merely for the purpose of frustrating enforcement of the judgment. The prospects of success of that defence must be assessed by reference to those facts and the evidence.

The applicant states that he did not publish the statements complained of by the respondent. The respondent relies on reports attributing the information to the applicant. The question of whether or not the statements complained of were published by the applicant is a matter that will require investigation in a trial.

The statements which are attributed to the applicant are alleged to have come through the medium of what has come to be referred to as the “Wikileaks Report”. The authenticity of the source of the information to the Wikileaks will need to be established in the trial.

There is also the issue of the damages awarded.

A sum of US$10 million for damages for defamation is, on the face of it, out of the ordinary in this jurisdiction. The awards made in respect of damages for defamation since the introduction of the multi-currency system are significantly lower than that figure. See Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) in which a sum of US$7,000= was awarded as damages for defamation; Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) in which an award of US$6,000= was made; and Nkala v Sebata & Anor 2009 (2) ZLR 2003 (H) in which a sum of US$2,000= was awarded.

A full trial will enable the court, in the event that liability is established, to properly assess the damages due to the respondent taking into account the factors relevant to such an inquiry. See Masuku v Goko & Anor 2006 (2) ZLR 341 (H)…,.; Shamuyarira v Zimbabwe Newspapers (1980) Ltd & Anor 1994 (1) ZLR 445 (H)…,.

The principle of finality in litigation is one that this court values. It must, however, be balanced against the need to do justice between the parties to litigation.

Taking into account all the relevant factors, I am convinced that good and sufficient cause has been established for this court to set aside the default judgment. The effect of my order is to re-instate the applicant's defence which was struck out….,.

In the result, IT IS ORDERED THAT:

1. The order granted in Case No. HC275/11, in default of the applicant on 16 November 2012, be and is hereby set aside.

2. The applicant's plea in Case No. HC275/11 be and is hereby reinstated and the matter shall proceed to the pre-trial conference stage in terms of the rules of this court.

There is a long history of litigation between the parties as evinced by the cross-references cited…,. The history can be summarized as follows.

The parties' relationship stems from a lease agreement originally signed between the applicant and a company called Endurite (Pvt) Ltd. The respondent bought the property, the occupancy of which is at the centre of the dispute from Endurite (Pvt) Ltd.

At the time, the applicant was a sitting tenant. The applicant remains a tenant of the respondent by operation of law.

In or about May 2009 the respondent issued summons in the main matter. Almost immediately after, in June 2009, the respondent issued an urgent chamber application. By the time it was served on the applicant a provisional order had been granted. I do not think that there is need to discuss the contents of the provisional order in detail, save to state that it shut the applicant down on the basis of perfecting the landlord's hypothec. The applicant's business has been closed since June 2009 as a result of this latest batch of litigation.

When the summons was served, the Director of the applicant was out of the country. On his return he emailed detailed instructions to his erstwhile legal practitioner, Mr Majoko, providing answers and defences to both the summons and the chamber application. For some reason I cannot understand, Mr Majoko agreed to represent the applicant notwithstanding that he had previously acted for the respondent.

In this email, the applicant evinced a strong desire to defend the case and the applicant proffered defences to the claims. The applicant left everything to its legal practitioner, Mr Majoko, under the belief that the matters were being defended.

Instead of defending/opposing the matters, Mr Majoko chose to negotiate with the respondent. Mr Majoko was trying to achieve an amicable solution to the dispute. No papers were filed timeously on behalf of the applicant during these negotiations. This resulted in a default judgment granted in favour of the respondent against the applicant under case number HC815/09.

This application is for rescission of the said judgment.

The applicant moves this application for rescission on two alternative grounds. The first, and principal, is that the default judgment was granted by error. It is submitted by the applicant that this judgment should be set aside in terms of Order 49 Rule 449 of the High Court Rules, 1971, as it was granted by error.

The alternative ground upon which rescission is sought is the ordinary ground, being that the papers filed by the applicant show good and sufficient cause for rescission of the judgment.

I propose to consider these grounds in turn.

Judgment granted in error

It is trite law that the court has both a statutory and a common law power to reverse a judgment that has been granted in error or under circumstances that indicate some irregularity. In Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS) GUBBAY JA…, made the following statement –

“Furthermore, it is firmly established that a judgment can only be rescinded under the common law on one of the grounds upon restiitutio in integrum would be granted, such as fraud or some other just cause, including justus error..,. Certainly, a litigant who is himself negligent and the author of his own misfortune will fail in his request for rescission – see Voet 2.4.14; Groenewald v Gracia (Edms) Bpk 1985 (3) SA 968 (T) at 972C-D and G – H.”

See also Jones v Strong SC67-03 and Yong Goo Cho v Stalin Mau Mau SC03-05.

It was submitted that there was justus error in this case. Such error, it was submitted, was on the part of the court, and was induced by certain non-disclosures and misrepresentations made by the respondent in its papers founding the urgent chamber application. In its papers under HC815/09, the respondent failed to disclose to the court the existence of an order previously granted in a similar dispute over rent between the parties. That order was granted in case number HC3256/04 and reads, in the material part, as follows:

“The parties agree that CB Richard Ellis shall determine a reasonable market rental in respect of the said premises from the 1st December 2004, and for the entire duration of the respondent's occupation of the premises.”

This order was granted by consent of the parties. It sets down a conflict resolution procedure for any further disputes on rentals between the parties. A neutral arbiter was appointed, by consent, to assess reasonable rentals for the disputed premises from time to time, for the entire duration that the applicant (who was the respondent under case number HC3256/04) would be in occupation of the premises.

It is common cause that the present dispute was, in the main, a dispute over rentals. It is also beyond dispute that the dispute arose during the applicant's occupancy of the premises. It is clear from the papers that the respondent did not have the rentals determined by the above-mentioned estate agent. The respondent unilaterally set the rentals and then demanded these rentals from the applicant, who disputed them. The dispute, as alluded to above, fell to be determined squarely under the consent order.

The respondent was supposed to have disclosed the existence of this consent order when it made the application under HC815/09.

It is trite law that the court may set aside a judgment granted in error where the judgment would not have been granted had the court been fully aware of certain facts – Nyingwa v Moolman NO 1993 (2) SA 508 (Tk); Topol v Ls Group Management Services (Pty) Ltd 1988 (1) SA 639 (W); and Holmes Motor Co v SWA Mineral and Exploration Co 1949 (1) SA 155 (C).

In my view, the non-disclosure of the above-mentioned consent order did lead to the judgment being granted in error. The court would not have granted the judgment had it been aware of the existence, and provisions, of the consent order.

Accordingly, on this point alone, the default judgment must be rescinded.

It is therefore ordered as follows:-

(1) That the judgment entered by this court against the applicant in case number HC815/09 be and is hereby rescinded.

(2) That the respondent pays costs of this application on an ordinary scale.

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea.

1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008.

2. Pleadings were exchanged between the parties leading to a convening of the pre-trial conference before the judge in chambers in terms of Rule 182 of the High Court Rules, 1971 (“the Rules”).

3. The pre-trial conference was set down for 22 April 2008 for the parties to attend with a view to either settle the matter or defining issues to be referred for trial.

4. The plaintiff's legal practitioners or his representatives failed to turn up.

5. The defendant made an oral application for the dismissal of the plaintiff's claim to the judge in chambers and obtained an order dismissing the claim with costs on the same day.

6. Thereafter, the plaintiff issued fresh summons based on the same cause of action claiming the same relief from the same party under case number HC3349/08. This is the present action.

7. The matter has been set down for trial.

The defendant took exception to a fresh process issued by the plaintiff. He argues that the plaintiff ought to have applied for rescission of the default judgment in terms of either Rule 63 or Rule 449 of the Rules. Without having obtained rescission of the judgment, so the defendant contends, the plaintiff's claim stands dismissed with costs. He contends that the plaintiff is barred from instituting fresh action.

As I understood it, counsel for the defendant is this; since the claim was dismissed in terms of Rule 182(11) the plaintiff cannot, without first obtaining rescission of that judgment, issue fresh process as the dismissal still stands. The only course of action open to a party eager to pursue an action so dismissed is to first to seek rescission in terms of Rule 63 of the Rules.

The plaintiff disputes this contention.

Counsel for the plaintiff figured that Rule 63 was permissive. It gave the plaintiff against whom default judgment was entered two options. The first option was to seek rescission of that default judgment, and, after obtaining it, proceed on the same papers. The second option was to literally abandon those papers and issue fresh ones. So long as the order for costs has been discharged, according to this argument, it is open to the plaintiff to commence fresh action since the dismissal of the action at pre-trial conference stage is akin to absolution from the instance. This interpretation, argued counsel for the plaintiff, accords with the tenor of Rules 59, 59A, 60, 61, 62 and 63.

It seems to me that the defendant's argument should meet with failure for two reasons.

(a) First, the defendant expressly abandoned the special plea of res judicata notwithstanding the fact that the defendant had expressly couched that special plea which he had filed with this court on 20 October 2008 as the basis of the special plea. If this was meant to be just a preliminary objection (which it sounds more like), then the defendant ought to have sought the dismissal of the plaintiff's case as he did, but a stay of proceedings till the plaintiff had paid the costs in terms of the order in HC190/08. See Western Cape Housing Development Board & Another v Parker & Another 2005 (1) SA 462.

(b) Second, the Rules grant the power to the court to enter judgment or make such order as it may think fit depending on the circumstances without hearing evidence. Rules 58, 59, 59A, 60, 61 and 62. It is said in a judgment obtained in this manner amounts to a default judgment.

When the plaintiff had failed to appear in person, or through counsel, for trial or in obedience to the directive, generally an order for dismissal of his claim is entered. Such an order dismissing the plaintiff's claim is, at law, not the judgment for the defendant.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

The dismissal of the plaintiff's claim, where it is obtained by default, is not as drastic an order as it may sound. In my view, this accords with the rationale of the Rules which is to achieve justice only after each party has had his or her day in court. To hold otherwise would, in my view, subject the procedure to mere technicality without achieving the desired end, which is to do justice between the parties.

It is instructive that in terms of Rule 61 the defendant may obtain an order dismissing the plaintiffs' claims where the plaintiff has been barred from declaring or making a claim. In terms of Rule 62, the defendant may also obtain an order absolving him where the plaintiff makes default of appearance. Both rules use the permissive “may” not the peremptory “shall” to make provision for the options open to the party who has complied with the rules. Similarly, Rule 63 also uses the permissive “may” to confer discretionary power to the court before which the matter is placed. The court is not obliged to give judgment for either party hence in practice the matter is generally dismissed or postponed depending on the force of the application made by the party appearing before it.

Thus, where an order such as the one granted on 22 April 2008, is in issue, it can hardly be said that such an order determined the matter finally. In my view, the plaintiff correctly opted to issue fresh summons, as it was entitled to do, rather than seek rescission of the judgment granted in default.

In the premises, the preliminary issue raised by the defendant is dismissed.

Pursuant to the judgement which MATHONSI J granted to the first respondent under case number HH516-14 (ref HC8415/13), the first respondent did, on 15 October 2014, issue an application out of this court. The application was filed under case number HC9133/14. He cited the applicant, the second, third and fourth respondents.

The first respondent was served with opposing papers at the end of October 2014. He did nothing from the mentioned period to the time that the applicant filed this application. The Rules required him to have filed an answering affidavit or to have set the matter, which related to the application, down for hearing. He should have pursued either of the stated matters within one month which is calculated from the date that the opposing papers were filed with the court…,.

The record shows that:

(a) The applicant filed his opposing papers to the applicant's application on 28 October 2014; and

(b) The second and third respondents' opposing papers to the same were filed with the court on 30 October 2014.

It is evident that the applicant should have complied with Order 32 Rule 236 in early December 2014 or so soon thereafter. He did not do anything at all. He, in fact, remained inactive for the whole of November and December 2014. He only reacted on 28 January 2015 when he filed his notice of opposition to the applicant's application for dismissal of application for want of prosecution.

The first respondent's opposing papers were not in the record when the court dealt with the application on 4 February 2015. The court cannot tell where they were. It, accordingly, granted the order by default. The order is dated 4 February 2015.

On 18 February 2015 the first respondent's legal practitioners addressed a letter to the Registrar of this court. The Registrar received it on the following day, and, with speed, placed it before the court for its attention.

The letter which the legal practitioners wrote read, in part, as follows:

“RE: APPLICATION HC271/15 BY JOSEPH MANDIZHA V CHEN WANG AND OTHERS

We refer to the above in which the Chamber Application by Mr Mandizha was granted by the Judge on the 4^th of February 2015. We understand from you that our Notice of Opposition to that application was not amongst the Judges papers and he therefore granted the order by default.

However, we attach our Notice of Opposition which was filed timeously with the Registrar on 28^th of January 2015 and was served on other respondents. In the circumstances we believe that the default order was erroneously granted and we request the learned judge to set aside the order in terms of Rule 449 of the High Court Rules.”

The first respondent attached to the letter his Notice of Opposition.

The Notice was filed with the Registrar on 28 January 2015. It was, therefore, filed before the default order was granted to the applicant. It is on the mentioned basis that the first respondent submitted that the order was granted in error, and should, therefore, be corrected in terms of Rule 449 of the rules of this court.

Rule 449 confers a discretion and power on the court to correct, rescind or vary any judgement or order that was erroneously sought or erroneously granted in the absence of any party affected by the judgement or order…,. It reads:

“CORRECTION, VARIATION AND RESCISSION OF JUDGEMENTS AND ORDERS

1. The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgement or order -

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.; or

(c)…,.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless it is satisfied that all parties whose interests may be affected have had notice of the order proposed.”…,.

There is no doubt that the order which the court granted to the applicant affected the first respondent's interests in an adverse manner. That order was, however, made with the full knowledge of the first respondent.

The Rule which the first respondent relied upon enjoined him to have filed an application with the court. He addressed a letter to the Registrar.

A letter and an application are two different pieces of paper altogether.

An application falls into the realms of court process and a letter does not fall into that category of papers. It cannot, therefore, be stated that the first respondent complied with the Rule when he wrote the letter as opposed to him having filed, on notice to other parties, an application with the court.

Subrule (2) of Rule 449 prohibits the court from making any order which corrects, rescinds or varies a judgement or order unless it is satisfied that all parties whose interests would be affected by its order have been notified of the proposed order.

The first respondent did not state, in the letter, that other parties who are part and parcel to his case were notified of what he prayed the court to grant him. Admittedly, copies of the letter which he addressed to the court were apparently forwarded to the parties. It is not known if they saw the letter - let alone took the trouble to read its contents. The mere fact that the first respondent showed, underneath the writer's signature, that copies were forwarded to the other parties is not enough. The first respondent should have done more than what he did in his effort to satisfy the court that adequate notice was served on the parties. Some form of stamp and signature of the served party, if such was attached to the letter, would have sufficed in the absence of certificates of service.

In his opposing papers, the first respondent admitted paragraphs A, B1, B2, B3 and B4 of the applicant's affidavit. He also admitted that he filed his answering affidavit out of time after which he proceeded to chronicle his reasons for the delay. He apologised for the late filing of his answering affidavit, and he, quite correctly, stated that he remained liable for the payment of the applicant's costs.

For some unknown and unexplained reasons, the first respondent did not file any answering affidavit. He, instead, filed his Heads of Argument under case number HC9133/14. He filed those on 14 February 2014. As at the time of this judgement, no answering affidavit of the first respondent was filed of record. The status quo ante, therefore, remained obtaining from the time that the applicant and others filed their opposing papers to date.

The court has considered all the merits and demerits of the matter which the first respondent placed before it through the letter. It is satisfied that the first respondent's case is devoid of any merit. The request which he made in the letter is not sustainable.

In the result, it is ordered that the order which the court granted to the applicant on 4 February 2015 under case number HC271/15 be and is hereby not corrected, rescinded, varied or set aside.

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets.

These cardinal principles seem to have been purposefully ignored or inadvertently overlooked in this matter. The result has been prolonged litigation for over five (5) years.

The facts were largely common cause.

The plaintiff was a duly registered private company. At all relevant times, prior to 16 June 2008, its major asset was an immovable property situate Stand 12896 Salisbury Township, measuring 3,066 square metres, held under Deed of Transfer No.39/76 and otherwise known as 98 Churchill Avenue, Gunhill, Harare (hereafter referred to as “the property”). Its principal officer, in the sense of being the majority shareholder and director, was the third defendant (hereafter referred to as “Sandra Muir”).

On 21 May 2008, this court, MTSHIYA J, granted a default judgment in HC1393/08. This followed an application by the first and second defendants herein who therein were the first and second applicants respectively. Hereafter, I shall refer to the first and second defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The default judgment effectively directed the plaintiff herein, the first respondent therein, to transfer the property to the Gurupiras. Sandra Muir, the second respondent therein, was ordered to sign the necessary papers within 10 days of the order failing which the Sheriff, who is the fourth defendant herein, or the Deputy Sheriff, who is the fifth defendant herein and was also the fifth respondent therein, would sign the transfer papers in place of Sandra Muir. The order by MTSHIYA J read as follows:

“IT IS ORDERED THAT;

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No.98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

The order was granted in default of appearance by the plaintiff and Sandra Muir.

Through their erstwhile lawyers, Manase and Manase, the Gurupiras said they had served their application in HC1393/08 in a letter-box at the property.

Following that default judgment, the property was transferred to the Gurupiras on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy Sheriff for Harare had signed the transfer papers. Manase and Manase had been the conveyancers. After that, Manase and Manase had applied for, and had obtained, ex parte, an order of eviction from the Magistrate's Court.

Meanwhile, the plaintiff had changed hands.

One John Legget had become the majority shareholder. This had followed a series of agreements with Sandra Muir. She, on her part, had by then emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been staying at the property. She had been Sandra Muir's employee of 10 years and more. With the change of ownership of the plaintiff, Diniwe's continued stay on the property, as an employee of the plaintiff, had been through an arrangement with John Legget. As the Messenger of Court was executing the ex parte order of eviction from the Magistrate's Court Diniwe Chinyani raised alarm. It did not help. She and her family were evicted. After that, the Gurupiras took occupation and moved in.

The plaintiff, through John Legget, filed an urgent chamber application for rescission of judgment. However, the matter was adjudged to be not urgent. The plaintiff then filed an ordinary court application for rescission of judgment. It also sought the reversal of the transfer of the property from the Gurupiras back to the plaintiff. Finally, it also sought the eviction of the Gurupiras. The application was filed under the reference no HC4211/08. The application was said to have been brought in terms of both Order 9 Rule 63 and Order 49 Rule 449.

The Gurupiras, through Manase and Manase, opposed the application.

The matter came before PATEL J…, The learned judge felt that there were serious and irreconcilable disputes of facts. On 24 September 2009 he referred the matter to trial. The application would stand as a summons. The parties would file further pleadings in accordance with the rules of court. That was done.

The trial came before me on 10 February 2014.

At the commencement of the trial counsel for Mr and Mrs Gurupira took an objection in limine. He submitted that the trial should not proceed. He said it was a novel procedure to seek rescission by way of a trial action. By law and by practice, rescission of judgment was always via the application procedure. It had been a mistake by the court for it to have referred the matter to trial.

It seemed both the parties, and the court, had overlooked that point.

The order by PATEL J, referring the matter to trial, was a nullity. The trial was hanging on nothing. You cannot put something on nothing and expect it to stay there. It will collapse. Inevitably, reference was made to the oft quoted case of McFoy v United Africa Co Ltd [1963] 3 All ER 1169 (PC)…,.

It being a legal point Mr and Mrs Gurupira could raise it at any stage of the proceedings. In this regard, reference was made to the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

In terms of Rule 449, the court could correct its own mistake and dismiss the claim for rescission without going into the trial.

Counsel for the Gurupiras further submitted that the moment the court had decided that rescission would be determined by way of a trial action, itself an unusual procedure, the Gurupiras had been placed at a disadvantage. They stood to lose all the benefits that the order of MTSHIYA J had bestowed on them.

Although counsel for the Gurupiras arguments did not come out with that much clarity, I think I have summarised them as accurately as possible.

Counsel for the plaintiff opposed the application.

He submitted that there was nothing novel or contrary to law or to practice for an application for rescission to be referred to trial if a dispute of fact emerges that is incapable of resolution on the papers. Until the rescission was granted the Gurupiras did not lose the benefits accruing to them in terms of the order of MTSHIYA J. It was, in fact, wrong for a litigant to persist on clinging onto a judgment that had been snatched in circumstances where the other party had clearly intended to defend. Reference was made to the cases of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (“the Zimbank case”) and Mufundisi v Rusere 2008 (2) ZLR 264 (H).

After a brief adjournment to consider the objection I came back to dismiss it.

Rule 63 reads as follows:

“63. Court may set aside judgment given in default

(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.”

Rule 449 reads:

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any power it or he may have, mero metu or upon application of any party affected, correct, rescind or vary any judgment or order –

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Even though in terms of Rule 63 and Rule 449 rescission of judgment is by way of an application, and the plaintiff had in fact done just that, these Rules do not, in my view, take away the court's unfettered discretion to refer such an application to trial where it is faced with serious disputes of facts which it is not capable of resolving on the papers. It may well be desirable to err on the side of caution that where such an application gets bogged down on such disputes of fact as to render the court incapable of determining whether or not the applicant has shown “good and sufficient cause” as Rule 63 requires, rescission should be granted so as to enable the matter to be canvassed more fully at the trial of the main matter. However, that does not, in my view, detract from the discretion that the court always have to refer that particular application to trial for the determination of “good and sufficient cause” through viva voce evidence. At any rate, under Rule 449, “good and sufficient cause” is not a requirement: see Grantully (Pvt) Ltd & Anor v UDC (Pvt) Limited 2000 (1) ZLR 361…,.

Furthermore, and in my view, the “court application” that is referred to in Rule 63 is the same “court application” as defined in Order 1 Rule 3. In Rule 3 it is defined as follows:

“'Court application' means an application to the court in terms of paragraph (a) of subrule (1) of Rule 266;”

Paragraph (a) of subrule (1) of Rule 266 reads:

“226. Nature of applications

(1) Subject to this rule, all applications made for whatever purpose in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties;”

Thus, given the clear wording of Rule 226(1)(a) there can be no doubt that an application for rescission of judgment, whether made under Rule 63 or under Rule 449 is an application “…, made for whatever purpose in terms of these rules…,.”

It is in the nature of an application under Rule 226(1)(a) that where a dispute of fact arises which is incapable of resolution on the papers the court can proceed in one of four ways:

1. The court can take a robust view of the facts and resolve the dispute on the papers; see Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H); Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC); Van Niekerk v Van Niekerk & Ors 1999 (1) ZLR 421 (SC); and Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)…,.; or

2. The court can permit or require any person to give oral evidence in terms of Rule 229B if it is in the interests of justice to hear such evidence; or

3. The court can refer the matter to trial with the application standing as the summons or the papers already filed of record standing as pleadings; see Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H); or

4. The court can dismiss the application altogether if the applicant should have realized the dispute when launching the application; see Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H); also Savanhu v Marere NO & Ors 2009 (1) ZLR 320 (S); Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Therefore, in my view, a court application in terms of Rule 63 is no different from the court application whose procedure is outlined in Rule 226. In the exercise of its discretion, the court can refer such an application to trial.

With regards to prejudice, I failed to appreciate counsel for the Gurupiras point. Until rescission was granted I did not understand how the Gurupiras could be said to have lost the benefits of the order by MTSHIYA J.

After the disposal of the point in limine, the trial began in earnest.

The plaintiff called seven (7) witnesses. The first was one Paradzayi Matambanadzo, a technician from Net One Cellular, a cellular network provider. His evidence was that without a special device, which Net One Cellular did not have, it was not possible for it to decrypt a short message service (sms) transmitted through its platform by one user to the other. This evidence was led to deal with one of the issues in the matter. That issue was whether or not Sandra Muir had transmitted to the Gurupiras an sms advising them of the Zimbabwean dollar balance due by them to her in respect of the sale of shares. It was in issue whether the purchase price would be paid in Zimbabwean dollars or in foreign currency. These transactions had been entered into before the advent of the multi-currency system adopted by this country in February 2009.

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

The third witness called by the plaintiff was John Legget himself. His evidence was that at the time the Gurupiras had taken transfer of the property, through a court order that they had obtained in default, he had already become the owner of the plaintiff through an initial allotment of 98 of the un-issued shares and a subsequent buy out of the remaining two (2) shares still held by Sandra Muir.

John Legget said that neither he nor the plaintiff had been aware of the court application by the Gurupiras. Until the time of eviction he had never heard of the Gurupiras, let alone of their interest in the property. If their application had been served through the letter box at the property then Diniwe Chinyani ought to have seen it. She stayed permanently on the property. She would bring him all mail that concerned Sandra Muir or the plaintiff. John Legget questioned why Manase and Manase had chosen to serve the court application meant for the plaintiff and Sandra Muir through a letter box when they were, at all relevant times, duly represented by legal practitioners, Thompson Stevenson & Associates. At that time there was already litigation pending between the Gurupiras and Sandra Muir under HC6660/07. That was an application by the Gurupiras to compel Sandra Muir to furnish them with her local Bank account details allegedly to enable them to deposit the balance of the purchase price.

The fourth witness called by the plaintiff was Thompson David Stevenson. He had, at all relevant times, been Sandra Muir's attorney. No application had been served on him. He found it strange that Manase and Manase had not directed that the court application in HC4211/08 be served on him. He was at that time still seized of Sandra Muir's mandate in HC6660/07 in which she was vigorously contesting the Gurupiras' claims. Mr Stevenson also said that nobody had approached him for the original title deed for the property. It was strange that Manase and Manase had resorted to applying for a replacement copy in order to register the transfer of the property to the Gurupiras.

The fifth witness called by the plaintiff was Washington Meda. His firm, Admew Management Services, had provided secretarial services to the plaintiff. It had, among other things, registered the transfer of shares in favour of John Legget and had drawn up the share certificates for him.

The sixth witness for the plaintiff was Diniwe Chinyani. She explained that she checked the mail box everyday. She had seen no application. Although at the particular time the application is alleged to have been served Sandra Muir was now in Mozambique on her way to Israel, her home country, she would remit all her mail or that of the plaintiff to John Legget.

The seventh and last witness for the plaintiff was one Anthony Neil Purkis (“Mr Purkis”). He was a chartered secretary in real estate. His evidence was that it was him that had fixed the sale of shares agreement between Sandra Muir and John Legget. Initially, a Mr Stephen Lennox Attwell had offered to buy Sandra Muir's shareholding in the plaintiff. The agreed price had been around US$220,000. However, Mr Attwell had only paid a deposit of $30,000 and had defaulted afterwards. The sale had been cancelled. Mr Purkis had subsequently closed another deal with John Legget. That agreement had been consummated. Out of the proceeds from John Legget, $30,000 would be kept in trust for Mr Attwell. Mr Purkis said he had not heard of the Gurupiras prior to the agreement with John Legget. It was only much later that he had heard of them from Sandra Muir. He had heard that other than a trifle US$17,000, the Gurupiras had failed to pay the sum required on the plaintiff's shares.

For the defence, only Mr Gurupira gave evidence.

Basically, his evidence was that following an advert in one of the local newspapers they had learnt that the property was on sale. The property was owned by the plaintiff. They had been advised that in order to get the property they had to buy Sandra Muir's shares in the plaintiff. Although they were not really interested in the plaintiff they had signed an agreement for the purchase of those shares. This was the only way to get the property. The agreed purchase price had been ZW$7 billion payable over 6 months in local currency. They had fully paid the purchase price; partly in foreign currency, partly in local currency, and partly in kind.

Towards the end, when the balance owing was ZW$6 billion, Sandra Muir had started to prevaricate and it was becoming difficult to remit payments to her. In November 2008, which was the deadline for payment in terms of the agreement, they had had to apply to court for an order to compel her to disclose details of her local Bank account to enable them to make the last payment. This had been the application under HC6660/07. However, that application had not been proceed with. Sandra Muir had agreed to accept cash. She had received and had signed for it on 13 November 2008. The date on the acknowledgement of receipt had incorrectly been entered as 14 November. He had altered it in long hand to read 13 November.

Mr Gurupira denied that they had breached the agreement of sale. He confirmed that Manase and Manase had applied on their behalf to compel the plaintiff and Sandra Muir to transfer the property to him and Mrs Gurupira. The actual registration of transfer had been in terms of the court order.

The defence closed its case after the evidence of Mr Gurupira.

Having heard all the evidence and having read the voluminous record I was left in no doubt that Manase and Manase had snatched a judgment for the Gurupiras who, through their new attorneys, Sawyer and Mkushi, were improperly clinging onto it. The words of McNALLY JA in Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) have kept playing in my mind. At p402E the learned judge of appeal made the following terse remarks (KORSAH JA and MUCHECHETERE JA agreeing):

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it…, to go by default. No-one, and in that term I include My Moyo of Chikumbirike and Associates, who acted for Masendeke, could have reasonably have thought otherwise.”

The facts of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) were far removed from those of the instant case.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the respondent's suit had been preceded by a letter of demand. The letter had been acknowledged and had been said to have been under consideration. In the present case, apart from HC6660/07 which Sandra Muir was defending to the hilt, there was no prior demand for the transfer of the property prior to the application under HC421/08 being filed.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been served and had been acknowledged on behalf of the applicant. It had been served on the accountant of one of the branches of the applicant. The accountant had referred it to the applicant's Head Office where it had reached the office of the General Manager. In the present matter, the summons had been served in a letter box, notwithstanding that Sandra Muir was, at that time, duly represented by Mr Stevenson. The court application in HC4211/07 had actually cited the earlier application under HC6660/07 as a reference matter.

In one of Mr Gurupiras affidavit in opposition to the application for rescission of judgment it was claimed that it was not competent to have served the application on the legal practitioners in the absence of evidence that they had the mandate to represent Sandra Muir in that particular application.

Without doubt, this was a self-serving subterfuge. If no confirmation had been sought how could it be given?

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been inexplicably filed away. The General Manager had not seen it. Default judgment had been sought without any further communication when no appearance to defend had been entered. The judgment was easily rescinded. The respondent's lawyers, who had unreasonably opposed the application for rescission of judgment, just as in this case, narrowly escaped an order of costs de bonis propriis.

In this matter, it is unbelievable that given the surreptitious manner in which Manase and Manase obtained the default judgment and the order of eviction from the Magistrates Court, ex parte, they had the audacity, not only to seek costs, and not only to seek such costs on the higher scale of attorney and client against the plaintiff and John Legget for having applied for rescission of judgment, but also they sought costs de bonis propriis against the plaintiff's attorneys, then, Matimba and Muchengeti.

In this mater, to allow the default judgment to stand would make justice turn on its head. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.

What Manase and Manase were doing offends against all notions of justice even though the return of service by the Deputy Sheriff, on the application to compel transfer, stated that the application had been served through the letter box,

I am sceptical that such a huge bundle of documents, which, from its index, was 56 pages long, could be shoved into a standard letter box and fit. The return did not even say that this had been done after a diligent search for someone responsible to receive the papers. Diniwe Chinyani and her children stayed at the property. None of them saw the papers. This lends credence to John Legget's rejection that any such documents had been placed in the letter box. Manase and Manase deliberately avoided service on Sandra Muir's attorneys. It obviously meant that the application was intended not to be served on the plaintiff or on Sandra Muir.

Furthermore, it was manifestly reprehensible for Manase and Manase to rush an ex parte application for eviction through the Magistrate's Court. It was clearly an abuse of the court process. The main matter was playing out in the High Court. It is doubtful that the Magistrate's Court had jurisdiction over such a matter. The High Court was avoided deliberately because evidently no judge of this court would have countenanced an application for such profound and life-changing relief as eviction to be determined ex parte.

The application for an order to compel transfer was itself replete with patent falsehoods. It was claimed that Sandra Muir was the Managing Director of the plaintiff; that she owned 32,000 shares allegedly being the entire share capital of the plaintiff and that Sandra Muir was the sole beneficial owner of the property.

That was false.

Sandra Muir did not own 32,000 of the plaintiff's shares. To the knowledge of the Gurupiras and their lawyers, Manase and Manase, because this was manifest in the agreement of sale, Sandra Muir owned only 2 shares. That was all that had been issued at that time. 32,000 shares was the authorised share capital. Sandra Muir was not the beneficial owner of the property. She may have enjoyed a right of occupation but ownership of the property was vested in the plaintiff.

It was further alleged in Mr Gurupira's affidavit that on 25^th day of some undisclosed month, but in the year 2007, Sandra Muir had sold to him and Mrs Gurupira her entire shareholding in the plaintiff and that those shares had entitled the holders thereof to an exclusive right of ownership, occupation and use of the property. The reference to Sandra Muir's “entire shareholding” could only have been to the 32,000 shares that Sandra Muir was alleged to own. This was calculated to mislead. Sandra Muir had sold to the Gurupiras' only 2 shares. Whilst this was her “entire shareholding” the reference in the preceding paragraph to her owning 32,000 was evidently calculated to give the impression that Sandra Muir had sold Mr and Mrs Gurupira the entire 32,000 shares.

Furthermore, it was false to claim that the shares in the plaintiff gave the holder an exclusive right of ownership of the property. The order by MTSHIYA J directed that the property be transferred to the Gurupiras. Clearly, that relief was sought erroneously. Clearly, it was granted erroneously. Clearly, it was granted in the absence of the plaintiff. There had been no proper service of the papers. Therefore, under Rule 449, the order was liable to be set aside.

I am also satisfied that under Rule 63 the plaintiff has established good and sufficient cause why the order should be set aside. In order to show good and sufficient cause under Rule 63 the applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment, and the prospects of success on the merits: see Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Stockill v Griffiths 1992 (1) ZLR 172 (S); and Enock Govha v Ashanti Goldfields Zimbabwe Limited & Anor HH48-12.

These aspects are considered cumulatively and not individually: Stockill v Griffiths 1992 (1) ZLR 172 (S)…,.

I have already considered that the plaintiff was not in wilful default. Regarding the bona fides of the application for rescission; it is quite clear that the plaintiff, without due process, was deprived of its only major asset. Section 183(1)(b) of the Company's Act [Chapter 24:03] prohibits the disposal of the whole or the greater part of the assets of a company without the approval of the company in a general meeting.

This was not done in this case.

The property was just about the only asset of significance owned by the plaintiff. The evidence placed before me showed that the Gurupiras never took transfer of the shares of the plaintiff. All that they were ever interested in was the property even though their agreement was for the purchase of the shares in the company, not the purchase of its assets. The evidence also showed that by the time that the Gurupiras took transfer John Legget had already become the majority shareholder and the Managing Director of the plaintiff. Thus, transfer of the property to the Gurupiras was a nullity. The plaintiff did not sanction it. Regarding the prospects of success, I have decided to leave this aspect for determination at the hearing of the main matter under HC1393/08.

Procedurally, once I set aside the order by MTSHIYA J, as I must, the application under HC1393/08 becomes alive again even though I have already heard viva voce evidence on it. In the end, this court shall have to pronounce the fate of the plaintiff and the fate of the assets owned by it. In my view, and without in any way being prescriptive or pre-emptive, some of the issues to be determined in the main application includes the question of whether or not there had been a double sale in the true sense; whether or not the Gurupiras breached the agreement of sale with Sandra Muir by failing to pay the purchase price either timeously or in full; and whether or not that agreement had automatically lapsed.

There is one final aspect of this matter.

When the application was referred to trial and the parties were directed to file further pleadings with the application taking the place of the summons, the Gurupiras, through Manase and Manase, had purported to join John Legget to the matter and had gone on to claim a substantive relief against both him and the plaintiff. It was pleaded that the sale and transfer of the shares in the plaintiff by Sandra Muir to John Legget had been a nullity. The counter-claim was for the reversal of that transfer of the shares.

At the trial, however, counsel for the Gurupiras, wisely, abandoned the counter-claim. John Legget had not been a party to the action. He had not been joined properly. His name had just been inserted in the citation as second defendant. Such crass conduct and wanton disregard of the rules by Manase and Manase properly ought to have attracted a penal order of costs at the very least. However, no such order was asked for. But, it was a correct decision by counsel for the Gurupiras to have abandoned the counter claim.

DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008 in HC1393/08 is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066 square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Legget, should be set aside.

3.3 Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order and thereafter the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066 square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter....,.

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition. 

MAFUSIRE J could not grant what had not been prayed for.

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal...,.

ISSUES FOR DETERMINATION ON APPEAL

Although the Gurupiras obtained an order for specific performance against Mrs Muir, which is the main issue in contention in this appeal, the starting point revolves around the issue of rescission of the default judgment of 21 May 2018.

1. In this appeal, the court has to determine the effect of the order for rescission given by MAFUSIRE J.

2. Consequent thereto is the issue as to whether Mrs Muir, following upon the rescission of the default judgment, was before the court a quo for the determination of the main application.

3. Additionally, there should be a determination as to whether the court a quo was correct in finding that the Gurupiras were entitled to specific performance. For the proper determination of this aspect on the merits, it stands to reason that Leggett and the company could only appeal if Mrs Muir was a party to the proceedings. Her absence militates against their contentions in that regard.

4. Lastly, the court had to decide whether Leggett was entitled to relief in respect of the shareholding transferred to him by Mrs Muir.

Given the issues raised in the rather extensive grounds, I have decided to deal with each ground of appeal separately ad seriatim.

AD GROUNDS 1 and 2 - WHETHER THE COURT A QUO ERRED IN FINDING THAT MUIR HAD BEEN PROPERLY SERVED, THAT, AS A CONSEQUENCE, MUIR WAS NOT BEFORE THE COURT AND HAD FAILED TO OPPOSE THE APPLICATION FOR SPECIFIC PERFORMANCE

These two grounds are interlinked as they are concerned with the same issue.

The application for the rescission of the default judgment was the sine qua non for any party seeking to oppose relief being claimed by the Gurupiras to have the leave of court to appear in opposition to such application.

As regards this issue, it was contended that the High Court had said that the issue was whether or not Mrs Muir was before the court. It was contended that due to the findings of fact made by MAFUSIRE J the court had to find that the judgment had been rescinded, thus affording her a right to oppose the relief sought by the Gurupiras.

Per contra, counsel for the respondents submitted that Mrs Muir had not appealed against the finding that she was not before the High Court. As a consequence, there was no opposition filed by her to the order sought by the Gurupiras.

The court a quo made the following critical findings;

It found that Mrs Muir had been properly served with the application. Further to that, it found that due to her failure to have the judgment granted in default rescinded as against her, she was not before the court.

The application for rescission was, on the order of the High Court, converted to a trial given the seeming myriad material disputes of fact on the papers. The witnesses called included Leggett, one Diniwe Chinyanga, L. T Nhari, a forensic documents examiner, and Thomas David Stevenson.

The last witness was appearing in his capacity as the legal practitioner of record for Mrs Muir.

Mrs Muir, however, did not launch an application for the rescission of the order made against her nor was she one of the witnesses who gave evidence before the High Court in support of the application for rescission of the default judgment.

Counsel for the appellants, Leggett and the company, submitted that the court a quo should have had regard to the evidence given to the court during the trial wherein the rescission of the default judgment was being considered.

It is pertinent to note that when the matter was heard by MAFUSIRE J, on 10 and 11 February 2014, there was only one party referred to as the plaintiff - and that was the company. Mrs Muir was cited as the third respondent in that matter. This is because the company had made the application for rescission. It cited Mrs Muir as a respondent. She did not file any papers. The judgment reflects that there was no appearance by Mrs Muir. The learned judge found that there had been no proper service of the application to compel specific performance as against Mrs Muir. He found, as a consequence, that there had not been proper service on Mrs Muir.

The critical question that begs an answer is what was before his Lordship. In other words, was Mrs Muir before his Lordship in an application for the setting aside of a judgment granted in default?

Such an application is governed by Rule 63 of the Rules of the High Court, 1971. Rule 63 is couched as follows:

“(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 sub-rule (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.

(3) Unless an applicant for the setting aside of a judgment in terms of this Rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

In my view, it was incumbent upon Mrs Muir, in the pursuit of the protection of her rights under the agreement with the Gurupiras, to apply, in terms of Rule 63, to have the judgment against her rescinded or set aside.

Even the order issued by MAFUSIRE J is of no assistance to her cause. It orders that “the plaintiff shall file its notice of opposition within ten days of the date of the order” - and it is common cause that the plaintiff in those proceedings was the company.

Notwithstanding his remarks on service, there is no order granting leave to Mrs Muir to file opposing papers. This is due to her absence from the proceedings from the beginning.

The court a quo found that, despite the presence of Mr Stevenson, who purported to act on her behalf, Mrs Muir was not before it. The court said:

“It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors Herbestein & Van Winsen - The Civil Practice of the High Courts of South Africa, 5th Ed, p437 put it this way;

'Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.'”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Mrs Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.

It is a telling assertion.

He filed the 'affidavit' without a mandate from Mrs Muir but did so due to some pressure from 'interested parties.'”

In the light of these facts, as emanating from the record, the finding that Mrs Muir was not before the court a quo is beyond impeachment.

Counsel for the appellants proceeded to argue that the finding by MAFUSIRE J, that there had in fact not been proper service of the application, was pertinent in this regard.

He contended that it could not be argued that the company and Mrs Muir could be said to have been in default, and, therefore, no order could be made against either of them.

These comments are made against the finding by the court a quo that Mrs Muir did not file an application for rescission, which finding has not been appealed against. The court stated:

“In casu, Muir has not placed any facts before this Court, either in the application for rescission or in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect.”

According to the learned authors, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa, 5ed…, Rule 31(2)(b) of the Uniform Rules of the High Courts of South Africa provides that a defendant may, within twenty days after gaining knowledge of a default judgment granted against him, apply to court upon notice to the plaintiff to set aside the judgment.

I must say that I much prefer the wording in that rule to the one in our Rule 63.

The former is clear and admits of no doubt as to who should make the application. It is the defendant.

On p715, the learned authors state the following:

“An applicant for the rescission of a default judgment must show good cause and prove that at no time did he renounce his defence, and has a serious intention of proceeding with the case. In order to show good cause, an applicant must give a reasonable explanation for the default, the application must be made bona fide and must show that a bona fide defence to the plaintiff's claim (exists).”

The contentions by counsel for the appellants, that Mrs Muir was not in default and was so found by MAFUSIRE J must, therefore, be considered in the light of the provisions of Rule 63 above.

The judgment of the learned judge in the court a quo is clear. As a consequence, when MAFUSIRE J found that the plaintiff had not been in wilful default such finding could only have related to the company. Mrs Muir never made an application for the rescission of the default judgment entered against her, and, as a consequence of such failure, the judgment, as it related to an order aimed at her personally, was not set aside. As a consequence, the setting aside of the order did not mean that she had purged her default. She had not sought an order permitting her to oppose the application filed against her.

According to the agreement of sale, the domicilium citandi et executandi was 98 Churchill Avenue. The return of service by the Deputy Sheriff stated that service had been effected at the domicilium citandi et executandi. The court a quo found that service had been effected because that is the address for service chosen by Mrs Muir in the agreement. The court stated:

“It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (1) ZLR 226 (SC).”

It is on record that she left Zimbabwe in September 2008. The documents were served in March 2008. She needed to explain why the return of service was not correct and why she had not seen the documents. There was no explanation from her. The return must therefore be accepted as correct.

In the absence of an application for rescission challenging such manner of service, a court hearing an application for rescission of a default judgment does not have the jurisdictional base to proceed and make conclusions touching on that process. It can only do so once good and sufficient cause has been established for the setting aside of the judgment. In this case there was none as related to Mrs Muir.

In the final analysis, the finding by the court a quo that the judgment against Mrs Muir was not set aside is unassailable. Grounds 1 and 2 of the appeal accordingly are without merit and must be dismissed.

In order to show good and sufficient cause under Rule 63 of the High Court Rules 1971, for rescission, an applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment and the prospects of success on the merits. These factors are considered cumulatively and not individually.

See Earth Moving and Construction Company (Pvt) Ltd v Gurupira and Others 2014 (1) ZLR 304 (H); Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Stockil v Griffs 1992 (1) ZLR 172 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S).