This is an application for the rescission of a default judgment entered by this court against the applicant on 14 March 2017 in HC669/16. That order was to the effect that:“1. 1st respondent be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 ...
This is an application for the rescission of a default judgment entered by this court against the applicant on 14 March 2017 in HC669/16. That order was to the effect that:
“1. 1st respondent be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months.
2. 1st respondent to pay costs on attorney and client scale.”
The application is opposed by the second respondent.
On the date of the hearing, the applicant raised a point in limine on the locus standi of the second respondent and the fact that the applicant had not been served personally with the application for contempt of court that led to the default judgment.
The second respondent's counsel, on the other hand, also raised a point in limine; alleging, that, as the applicant had not attached the default judgement in question, there was no cause of action.
After counsel had made their respective submissions, I indicated that they must proceed with arguments on the main matter and my decision of the points in limine will be in the main judgement....,.
The applicant and the second respondent are virtually involved in a battle for directorship of the first respondent. This battle has had its twists and turns all pointing to an acrimonious relationship between the two parties.
It is common cause, that, on 24 April 2013, the respondents obtained an order, by default, in HC2470/13, in which the applicant and Francis Katsande were interdicted from holding themselves out as representatives of the first respondent, Mydale International Marketing (Pvt) Ltd.
It is this order that the respondents, upon seeing that the applicant and Francis Katsande were not complying with, approached this court, on 25 January 2016, with an application for contempt of court. The respondents sought an order that:
“1. 1st and 2nd respondents be sentenced to 24 months imprisonment of which 12 months is suspended for good behaviour, effective 12 months each.
2. 1st and 2nd respondents pay costs on attorney and client scale.”
Prior to that matter, in HC1687/10, in an order dated 20 June 2012, the first respondent, represented by the said F Katsande, as instructed by the applicant, had obtained judgement in its favour. That order included, inter alia, a directive that Venturas and Samukange Legal Practitioners surrender a sum of $28,500 to the Registrar of the High Court who would, in turn, release the money to the applicant (1st respondent in this case) upon appropriate proof of the directorship of the applicant.
In that regard, clause 5 of HC1687/10 provided that:
“The Registrar of the High Court be and is hereby directed to release to the Applicant the said amount in paragraph 4 hereof upon appropriate proof of the directorship of the Applicant.”
After the 24 April 2013 judgement, F Katsande continued to represent the first respondent, as instructed by the applicant, in matters pertaining to the recovery of the $28,500.
In furtherance of the directive in clause 5, in HC1687/10, on 20 April 2016, the Registrar of the High Court wrote a letter to the Registrar of Companies seeking assistance in ascertaining the directors of the first respondent.
In his response of 28 April 2016, the Registrar of Companies indicated, that, according to his records the current directors of the first respondent (Mydale International Marketing P/L Company) were Alison Alan Leslie and Valentine Peter.
In this regard, the company's CR14 was duly attached.
As far as records at the company's registry are concerned, therefore, the applicant is a director of the first respondent.
The sum in question was subsequently released to F Katsande Legal Practitioners in their capacity as Mydale International Marketing P/L's legal practitioners.
It is in that regard, that, the applicant, though interdicted, continued to give instructions to Katsande & Partners to represent the first respondent in these courts.
In the meantime, on 25 January 2016, the second respondent filed the contempt of court application against the applicant and Francis Katsande.
In his application, as reflected in HC669/16, he sought civil imprisonment of the applicant and Francis Katsande in the terms alluded to above.
This is the application which was granted in default of the applicant on 14 March 2017.
Francis Katsande attended the hearing as a party to the matter and not representative of the applicant.
The applicant alleged, that, he received a notice of set down of the application for contempt through his gardener on the date the hearing was to take place.
He duly attended court – albeit, ill prepared.
The notice of set down showed, that, the hearing was to be before MANGOTA J. When he got to court, he found out that the matter was in fact to be heard before TAGU J.
When the contempt of court proceedings commenced in Court J, he raised issue with the manner in which service of the process had been done and that he had only learnt, at court, that it was an application for contempt of court.
He indicated that he needed time to respond to the application.
As he had not had time to prepare for the hearing, he sought the court's indulgence to enable him to respond to the application.
As a consequence, the court adjourned, and, to his understanding, court was to resume at 3:30pm in the same court room on the same date.
He thus went away and hurriedly prepared his notice of opposition and returned to the same courtroom at about 3:30pm.
He waited, and, as no court official came, he approached the presiding judge's clerk to inquire on the matter.
It was then that he was advised, that, the matter had in fact been heard in the judge's chambers, and, as he was in default, a default order for him to be imprisoned for 100 days had been granted.
He thereafter sought advice after which he filed this application for rescission and for leave to file a supplementary affidavit, if rescission is granted, within 12 days of the date of the order.
In order to avert incarceration, he also made an urgent chamber application for stay of execution of the default order.
That application was granted, hence, he was not arrested.
The second respondent opposed the application. He contended, that, the applicant was in wilful default and had no prospects of success on the main application....,.
The main issue before me is whether or not the default order of 14 March 2017 should be rescinded or not.
The onus is on the applicant to show that there is good and sufficient cause for this court to rescind that default order.
Rule 63 of the High Court Rules 1971 provides that:
“(1) 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.
(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 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 judgment.
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.”
In Zimbabwe Banking Corp. Ltd v Masendeke 1995 (2) ZLR 400 (S) McNALLY JA had earlier opined that:
“Wilful default occurs when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter.”
In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)…, McNALLY JA pronounced as follows on 'good and sufficient cause' where the aspect of wilful default is raised:
“While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule, that, when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by KING J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I:
'More specifically, in the context of a default judgment 'wilful' connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e its legal consequences; and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.'
See also Morkel v ABSA Bank Ltd & Anor 1996 (1) SA 899 (C).
But, it is precisely in the 'motivation' mentioned in that passage that one might find 'good and sufficient cause.'
I respectfully agree with the dicta of INNES J in the oft-cited case of Cairns Executors v Goarn 1912 AD 181 at 186 passim. In particular, His Lordship said:
'It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive and which it is highly desirable not to abridge.'”
In casu, it is common cause that the applicant had attended the morning session. It was the afternoon session that he did not attend.
His explanation was that he understood the time for resumption as 3:30pm and he indeed came at that time. The second respondent, on the other hand, contended that the time for resumption was 2:30pm.
He did not, however, dispute that the applicant in fact came at 3:30pm.
It is my view, that, it is not uncommon for parties to a matter to misunderstand the time a matter has been stood down to.
In as far as the efforts the applicant said he took upon returning to court cannot be refuted, it is only fair and just that he be given a benefit of the doubt and accept that he may indeed have mistaken the time for 3:30pm hence his attendance at that time.
I am thus of the view, that, his explanation, in the circumstances of this case, moreso as a self actor at the time, is reasonable.
It cannot be said with any seriousness, that, the applicant deliberately absconded from attending court when he knew his liberty was at stake. The probability is that he misunderstood the time for resumption.
Had it been a deliberate default, he surely would not have turned up at 3:30pm, when, in all probability, he would have been handing himself for imprisonment.
In fact, the impression one gets from the litany of cases to which the parties have appeared before this court over is that the applicant was intent on fighting for what he believed to be his rights and those of the first respondent.
The next issue is that of prospects of success.
The applicant alleged, that, the contempt of court application was not served on him at all. What he received was a notice of set down.
In such circumstances, he ought to have been personally served with the application itself.
It is trite that a party to contempt proceedings must be personally served.
In Mydale International (Pvt) Ltd v Dr Rob Kelly HH04-10 GOWORA J…, aptly stated that:
“It would seem to have escaped the attention of the learned counsel for the applicant that a party against whom an order for contempt is sought must not only be personally cited but that process for such citation must be personally served on the respondent.”
In casu, the applicant alleged that he was not served with the application.
The second respondent, in disputing this, stated, that, the applicant was served with the application in the same way he was served with the Notice of Set Down - which was via his gardener.
By implication, the second respondent conceded that no personal service was effected.
It may also be noted, that, whilst the judgement by BERE J, upon which the contempt was premised, interdicted the applicant and F. Katsande from representing the first respondent; when these same interdicted parties appeared before CHAREWA J, in F.M. Katsande Legal Practitioners v Mydale International HH225-17, contesting over monies due to the first respondent, the learned judge's sentiments were to the effect, that, the applicant was entitled to represent the first respondent; and, so, F Katsande could not use the judgment in HC2470/13 to refuse to pay on the basis that the applicant was interdicted from representing the first respondent.
In this regard, the learned judge opined that:
“The issue of locus standi was peremptorily dealt with in the last paragraph of p4 of my judgement dated 8 June 2016. Had the Registrar of the High Court, after carrying out the investigations ordered by the Court, established that Peter Valentine was not a director of the Respondent entitled to represent it, then, he would not have released the trust funds to applicants. After all, applicants own authority to receive the funds was derived from Peter Valentine's instructions for and on behalf of the respondent. In other words, if Peter Valentine had no authority to act for respondent, then, applicant also had no authority to act for respondent and receive its trust funds. The applicant cannot seek to have its cake and eat it too.”
In her prior judgment, in Mydale International Marketing (Pvt) Ltd v Katsande Legal Practitioners and Another HC5800/16…, the leaned judge had stated that:
“In para 4 of their undated letter aforesaid, the respondents referred to HC2470/13 and HC2453/16 as further reasons for refusing to release the trust funds. Clearly, HC2470/13 is not helpful to the respondents, as, apart from interdicting Mr. Valentine from holding himself as a representative of the applicants, it also interdicted the respondents from acting for applicant. To my mind, the fact that the Registrar did pay out the $28,500 respondents Trust Account obviously meant that he had ascertained that Mr. Valentine properly represented the applicant and also that the respondents were the duly authorised legal practitioners of the applicant in HC1049/09 duly empowered to receive the money.”
The above sentiments were buttressed by the fact, that, the investigations by the Registrar of the High Court, as directed by this court in HC1687/10, had revealed, that, in terms of the CR14 kept at the Registrar of Companies records, Peter Valentine was one of the Directors of the first respondent.
That situation has apparently not changed to date.
Though the second respondent contended that he is the rightful Director of the first respondent, he did not produce any proof of his directorship or even authority from the first respondent to represent it.
The applicant, on the other hand, tendered what he said was a resignation letter of the second respondent and Company Board Resolution appointing the applicant to represent the first respondent in the High Court labour disputes and other legal disputes.
I am of the view, that, the totality of what the applicant has used, since 2009, to assert his position as director and as the person authorised to represent the first respondent cannot be ignored as no other person has tendered contrary documents or evidence.
I am of the view, that, the apparent conflict, in the view taken of the applicant's locus standi, is one that requires the parties involved to fully ventilate their respective positions for a most appropriate determination to be made.
On the basis of the above discourse, I am of the view, that, the applicant has shown that he has some prospects of success in the main matter.
As regards his defence to the contempt proceedings, the applicant also alluded to the fact, that, the court order the second respondent was relying on was overtaken by subsequent orders from this same court that recognised him as a representative of the first respondent.
This would be a point of contention in the main matter.
In as far as it was not disputed that the applicant only learnt, at court, that the matter he had been invited to court for was one of contempt of court, it follows, that, he was not given adequate time to prepare his response.
He asserted, that, he only had about four (4) hours before returning to court to respond to the application.
In the absence of evidence that he had been properly served with the application in good time in terms of the Rules, I am inclined to grant him leave to file a supplementary affidavit as the one he filed was prepared hurriedly to meet the courts timeline of resuming the hearing in the afternoon of the same day.
Accordingly, I am of the view, that, the applicant has shown good and sufficient cause for the rescission of the default judgement entered against him on 14 March 2017 in HC669/16.
Accordingly, it is hereby ordered that:
1. The default judgment granted in HC669/16, of 14 March 2017, be and is hereby rescinded.
2. The applicant is hereby granted leave to file a supplementary affidavit in HC669/16 within 12 days of the date of this order.
3. The second respondent shall bear costs of suit on the ordinary scale.
