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 1st
defendant for and on behalf of plaintiff's members.
2. The 1st 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 1st defendant's stead and sign all necessary
documents to transfer ownership to plaintiff's nominee.
3. 1st 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.
In the event, the application is without merit
and is accordingly dismissed with costs.
