CHITAKUNYE J: On the
8th 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. HC 2524/2015 on the 19th March
2015. The summons was duly served on the applicant on the 30th 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 respondent's legal practitioners on the 20th May 2015.
Pursuant to the notice of appearance
to defend, the respondent then issued a Notice to Plead against the applicant
on the 27th May 2015. That Notice was served on Messrs Nyikadzino,
Simango & Associates on the 1st 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 23rd
June 2015. A copy of that bar was served on Messrs Nyikadzino, Simango &
Associates on the 25th June 2015.
On the 10th July 2015,
the respondent made a chamber application for default judgement. The default
judgement was duly granted on the 23rd July 2015.
On the 24th 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 r 84 of the High Court
Rules 1971 as amended.
Subsequently the present application
for the rescission of the default judgement was filed by applicant on the 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 court to set aside the
judgement. In Stockil v Griffiths 1992 (1) ZLR 172(S) at 173D-F
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 S-16-86(not
reported); Roland and Another v McDonnell 1986 (2) ZLR 216(S)
at 226E-H; Songore v Olivine Industries
(Pvt) Ltd 1988(2) ZLR210(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) at 387F 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 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 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 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 defendant to
act failure of which a bar will be entered. In casu, the notice required the plea to be filed within 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 the 1st of June 2015 virtually took no
action in terms of responding to the notice hence the bar was effected on the
23rd June 2015. As already alluded to above a chamber application to
uplift the bar was only made on the 24th 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) @ 25D-F 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) at 205D-F 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) SA135(A) at 141C 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 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 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 the 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 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 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 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 applicant is not being
candid with court on the circumstances of the request for further particulars.
Accordingly I hereby dismiss this
leg of applicant's argument as it is not bona
fide.
Bona
fides of the defence on the merits and the prospects of success
The next issue that exercised my
mind was whether the applicant has established that he has a bona fide defence to the claim with
prospects of success.
In order for a defence to be bona fide and to carry some prospects of
success it must be credible ex facie.
A defence based on misrepresentation of facts may not be such a defence.
In casu, the applicant in his founding affidavit alleged that he is
not indebted to the respondent in the sum of US$258 019-29 but to the sum of
US$198 000-00 plus interest at the rate of 12% per annum. In this regard he
referred to para 7.1.1 of the loan agreement.
The respondent responded to this
assertion in some detail. The respondent indicated that the debt arose from a
facility letter the parties signed on the 1st December 2010. The
total sum lent in respect of that facility was a sum of US$257,000-00 comprising
a rollover of US$175,000-00 from a previous arrangement and an additional
US$82,000-00 provided for the 2010/2011 summer cropping season. The respondent
went at length in explaining the interest charge and the total debt as
reflected in the bank statement after taking into account the in duplum rule. The relevant statements
were duly attached to the notice of opposition.
In spite of the detailed response,
the applicant's answering affidavit remained as scant as it possibly could be.
For instance, in para 3 of the answering affidavit applicant stated, inter alia, that: -
“It is
not correct that Applicant has no defence on the merits. The applicant is just
being honest with the court by acknowledging owing Respondent US$198 000-00 as
opposed to US$521 083-41. It is submitted that the Respondent misled court in
the summons and declaration. In fact, respondent over claimed by US59 000-00.
The
amount that was rolled over when parties entered into the agreement was US$16
000-00 as opposed to US$175 000-00 which is the reason Respondent did not say
anything about that amount. For ease of reference see attached agreement dated
9 July 2009 marked A.”
The respondent did not explain how
he arrived at the figures he says he owes respondent in terms of the rolled
over figure of US$16 000-00, the debt he admits to of US$198 000-00 and the over
claimed sum of US$59 000-00. He merely made bald assertions in both the
founding affidavit and the answering affidavit despite respondent's clear explanation
of its figures.
It is important to note that
applicant did not deny signing the facility letter on 1st December
2010. He simply ignored responding to that assertion that he signed that
document and proceeded to say that the debt was in terms of the loan agreement
dated 9 July 2009 which he attached 'Marked A'. Even that document does not, ex facie, contain the figures he alluded
to. The attempt by the applicant to divert attention from the loan agreement
respondent sued on to a prior loan agreement can only serve to show that
applicant has no defence to the claim at all.
The loan agreement of the 1st
December 2010 is in tandem with the figures alluded to by respondent. It shows
a rollover sum of US$ 175 000-00 and a summer cropping sum of US$82 000 -00.
The total offered was thus US$257 000-00.
It may also be noted that despite
being shown that a capital sum of US$258 019.29 was in fact provided as evident
from his bank statements and the various withdrawals he made applicant made no
specific denial of the same. It was from that sum that the interest of US$258
019-29 (limited by the in duplum rule)
and charges of US$5,044-83 were derived. These figures totalled US$521 083-41.
The applicant also challenged the interest
rate of 28% being claimed. He alleged that the agreed interest rate was 12%. In
this regard he referred to para 7.1.1 of the agreement. That paragraph indeed
provides for an interest rate of 12% per annum on the facility offered. The applicant
somehow opted to ignore paragraph 7.1.2 which provides that:-
“The Bank
reserves the right to give notice at anytime of any alteration in the rates of
interest and, thereafter, the Bank shall be entitled to charge such other rate
as it may prescribe. If the Borrower continues to avail of the facilities after
receipt of the aforesaid notice by not fully repaying the amount due to the
Bank, the Borrower shall be deemed to have agreed to the change in interest
rate.”
The respondent's contention was that
the interest rate was altered in terms of para 7.1.2 and applicant agreed in terms
of that paragraph.
The applicant's bald assertion in
this regard was thus without merit.
It is my view that applicant has no
defence on the merits. The purported defences have no prospects of success at
all. It is a mere fishing expedition on the part of the applicant.
Accordingly the application is
hereby dismissed with costs.
Nyikadzino,
Simango & Associates, applicant's legal practitioners
Tendai Biti Law, respondent's
legal practitioners
