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.
(b) The
matter be and is hereby remitted to the court a quo
for a full trial.
