ZHOU J: This is an application in terms of order 9 r
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
500-00. 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$1 500-00. 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. HC 3979/11. In that case he prayed for an order to confirm
cancellation of the lease agreement and for payment of the sum of US$10
500-00. 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.
In the draft order the applicant also seeks a declaration that the bar effected
against her be declared to be null and void.
The applicant was served with the summons in Case No. HC
3979/11 on 9 May 2011. She entered appearance to defend on 19 May 2011.
In the notice of appearance to defend the applicant gave her address as c/o
Pepita – Fes, No. 69 Central Avenue, Between 6th and 7th
Streets, Harare. On 6 July 2011 a notice of intention to bar was served
at the given address. It was received on behalf of the applicant by T.
Chirere who is described in the Deputy Sheriff's return of service as “Pepita
Marketing Secretary”. The applicant was subsequently barred for failure
to file her plea.
Order 9 r 63 provides that a party against whom a judgment
has been given in default may apply to this court for the rescission of that
judgment within a period of one month after he has had knowledge of the
judgment. If the court is satisfied that there is good and sufficient
cause to set aside the default judgment it may grant the application. In
considering whether good and sufficient cause has been shown for the court to
exercise its discretion in favour of the applicant, the court will take into
account the reasonableness of the applicant's explanation for the default, the bona
fides of the application to rescind, and 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 vGriffiths 1992 (1) ZLR 172(S) at
173E-F; Mdokwani vShoniwa 1992 (1) ZLR 269(S) at
270C-D. A point made by this court and upheld by the Supreme Court is
that while the above factors are relevant the superior courts should not
readily and unnecessarily fetter their discretion in determining whether in any
particular case good and sufficient cause exists for a default judgment to be
set aside. Deweras Farm (Pvt) Ltd vZimbabwe Banking
Corporation Ltd 1997 (2) ZLR 47(H); Deweras Farm (Pvt) Ltd &
Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S) at
369E-F. But that discretion must, of course, be exercised
judicially.
The applicant contests the procedure by which she was
barred on the ground that the notice of intention to bar was not endorsed as is
required by r 81. The applicant's contention in that respect is not
properly founded. The copy of the notice of intention to bar attached to
the respondent's opposing affidavit as annexure “H” was clearly signed on 20
July 2011 before it was filed with the registrar.
As regards the explanation for the default, the applicant
states as follows:
“I was never served nor did I
have sight of the notice to plead with intention to bar. The notice to
plead with intention to bar was served at number 69 Central Avenue, Harare and
not on me personally but on one T. Chirere whom I do not know and whom I never
gave authority to receive such important documents on my behalf and whom (sic)
in turn never notified me after having received the notice to plead with
intention to bar”
The applicant's statement that she was never served with
the notice of intention to bar is false. The notice was properly served
at her given address for service. Applicant is mistaken in thinking that
there was need for personal service of the notice. The applicant made no
effort to produce an affidavit from T. Chirere who received the notice on her
behalf. That person is recorded in the Deputy Sheriff's return of service
as secretary at Pepita Marketing, the applicant's chosen address for
service. She should have established who that person is and what he or
she did with the notice if indeed the pleading was not handed over to
her. The applicant took a casual approach to the matter and took comfort
in sheltering behind the assertion that she does not know T. Chirere.
That explanation is thoroughly inadequate and inherently unconvincing.
Further, the applicant does not explain what prompted her legal practitioners
who had not even assumed agency in the matter to make “follow ups with the High
Court” if she genuinely believed that all that was required at that stage was
the filing of her plea. The natural thing to do was for her or her legal
practitioners to check at her given address for service for any documents which
might have been served. This was particularly so given that the notice of
intention to bar was served upon her more than one and a half months after she
had entered appearance to defend. She suggests that she wanted to file
her plea some six months after she had entered appearance to defend. The
draft plea which is annexed to her founding affidavit marked “A” is dated 9
November 2011. That is unacceptable as an explanation for her default.
This, in my view, is a case in which the applicant with
knowledge of the action and the legal consequences of failing to defend the
matter deliberately, consciously and freely took the decision to refrain from
filing her plea. See Zimbabwe Banking Corporation vMasendeke
1995 (2) ZLR 400(S) at 402D; Deweras Farm (Pvt) Ltd & Ors v
Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368(S) at 369F-G.
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.
The issue of the involvement of an organisation by the name
Shaka Legacy Executors in the matter has exercised my mind, as it appears that
it is conducting itself like a firm of legal practitioners. In the
premises, I will direct that a copy of this judgment be given to the Secretary
of the Law Society of Zimbabwe for an investigation to be undertaken into the
precise nature of the business of Shaka Legacy Executors.
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. HC 3979/11. I do not believe,
though, that the prayer for costs on an attorney-client scale made by the
respondent is justifiable on the facts of this case. There are no unusual
or special facts in the instant case which justify a punitive order of costs.
In the result, it is ordered as follows:
1. The application is
dismissed with costs.
2. The Registrar is directed
to forward a copy of this judgment to the Secretary of the Law Society of
Zimbabwe for the latter to investigate whether the organisation known as Shaka
Legacy Executors is not operating its business in contravention of the
provisions of the Legal Practitioners Act [Cap 27:07]
Mupindu & Mugiya Law Chambers, applicant's legal practitioners
Musendekwa
– Mtisi, respondent's legal practitioners
