I just have to repeat what I have said before in trying to
unlock the conundrum posed by this application;
“Why would a party approach the court for a rescission of a
rescission of judgment order unless proceeding with the main cause is so
calamitous that it cannot be contemplated?
For one thing, such party would have obtained a default
judgment which would have been rescinded by the court thereby paving the way
for the resolution of the main matter once and for all on the merits. To then
spend time, energy and money trying to reverse the process and revert to the
default judgment status quo is, in my view, a trifle. As it is, considering
that this matter is being argued exactly a year after the application was
filed, means that another year has been lost in trying to hang onto a default
judgment when the merits of the matter would have been determined by now.
Could it be that the applicant sees something in that
default judgment which none of us can see?”
(Kwaramba v Winshop Enterprises (Pvt) Ltd and Others
HC788/15, HH788-15).
For the purpose of the present matter, I should add that
the applicant does not even mention any resort to the original cause which gave
rise to the default judgment that was rescinded; content to fight for the
reinstatement of the rescinded order in order to hang onto it until kingdom
come.
The other pertinent question which arises is whether an
order granting rescission, allowing as it does, the parties to deal with the
merits of the main matter can lawfully be rescinded.
In this urgent application, the applicant seeks the
following relief:
“TERMS OF THE
FINAL ORDER SOUGHT
That the provisional order granted by this Honourable Court
be confirmed in the following manner;
1. The respondents be and are hereby interdicted from
transferring Stand Number 7825, Highmount from the applicant's name without a
court order.
2. The first respondent be and is hereby ordered to pay
costs of suit at an attorney-client scale.
INTERIM RELIEF
GRANTED
Pending the finalization of this matter, the applicant
shall be granted the following relief:
1. The first and second respondents be and are hereby
interdicted from transferring, disposing, alienating, accessing, using or in
any way dealing with Stand Number 7825, Highmount from the applicant's name
until finalisation of the ownership dispute between the parties.
2. The second respondent be ordered to stay any process to
transfer Stand Number 7825, Highmount from the applicant's name pending finalization
of this matter.
3. Should the second respondent had effected any change of
name prior to the granting of this court order, it be and is hereby ordered to
reverse the change of name to the applicant pending the finalization of this
matter.”
Historically, the applicant and the first respondent were a
happily married couple until their matrimony reached turbulent weather
resulting in a decree of divorce being granted on 22 January 2009 with the
attendant consequences of a division of their matrimonial assets. Stand 7825
Highmount, Bulawayo, which was registered in the first respondent's name was to
be retained by the first respondent who was however required to pay the
applicant R10,000= on certain terms as compensation for her share to it failing
which the applicant would assume ownership of it.
Whatever transpired thereafter (the applicant says she was
not paid anything while the first respondent claims the whole amount was paid
to her through the medium of James Moyo-Majwabu & Nyoni Legal Practitioners,
then representing him). The applicant filed a chamber application in HC150/13
and obtained an order in her favour, which is the source of the parties'
current duel. On 12 February 2013, this court, per KAMOCHA J, granted an order
directing the first respondent to transfer the Stand to the applicant within 10
days failing which the Sheriff was to do the honours on his behalf.
In that application, the applicant had alleged that the
first respondent had failed to comply with the terms of the Divorce Order
thereby triggering the provisions of the alternative term of it that the Stand
be transferred to her. The order was granted despite the conspicuous absence of
proof of service upon the first respondent. Although the applicant now claims
that the Chamber Application was served upon the first respondent's legal
practitioners, she has not produced any proof of such service.
It is common cause that the applicant used that court order
to obtain transfer of the Stand to her name.
Hers, however, turned out to be a pyrrhic victory because when the first
respondent learnt of the Order, he successfully launched a court application in
HC1950-14 for the rescission of that default judgment. He alleged in that
application that not only was he not served with the original application which
was granted in default, but also that it had no merit as he had paid the
applicant the R10,000= due to her in terms of the divorce settlement thereby
entitling him to retain ownership of the Stand. This court, per MAKONESE J,
obliged and granted rescission of judgment.
I must say that the order was granted following proof, in
the form of the Sheriff's return, showing that the application had been served
upon the legal practitioners of the applicant on 27 November 2014 who did not
file opposition. Now, the applicant insists that the legal practitioners in
question had no mandate to receive the application, although they are the ones
who obtained the impugned default judgment and did not renounce agency at all.
More importantly, the applicant has not produced any evidence from that firm,
Zimbabwe Women Lawyers Association, that they received the application without
authority.
All that the court order of 29 January 2015 does is to
rescind the default judgment and no more; dragging the parties back to the
situation obtaining when the applicant launched the application in HC150/13.
The applicant has not seen the wisdom of pursuing that application on the
merits. Instead, she has launched an application for rescission of the
rescission of judgment order in HC3399/15 effectively seeking reinstatement of
the default judgment.
Having taken that very strange turn, she has come before me,
on a certificate of urgency, seeking an interdict aforesaid.
In fact, the interim relief that the applicant seeks includes
an order directing either that the Stand remain in her name or if it has been
transferred that such transfer be reversed. Unfortunately, there is no legal
basis upon which that can be done given the fact that the order upon which
transfer was effected to her name, no longer exists. In fact, the prevailing
situation is that the Stand should be in the name of the first respondent as
the basis for its removal from that name no longer exists.
To support the claim, the applicant has stated a lot of
things, most of which are not helpful at all. She has challenged the
authenticity of the first respondent's signature on the affidavit in support of
the application for rescission of judgment without adducing any evidence from a
handwriting expert to substantiate that challenge. It is, however, common cause
that it was signed by the first respondent's father by virtue of a power of
attorney. She has denied receiving the R10,000= allegedly given to her by the
first respondent's legal practitioners alleging that her signature was forged
on the acknowledgment of receipt. That, however, is an issue to be dealt with
in determining the merits of the matter.
The applicant has also taken issue with service of the
application for rescission upon her legal practitioners.
With respect, that is trifling with the court in the
extreme because it is that law firm which set in motion the application whose
order was sought to be rescinded. They did not renounce agency. It was
therefore proper to serve them with the application for rescission as their
office was given as the applicant's address for service. Above all, it is trite
that where a party seeks to disown legal representation or to cast the blame
for non-action upon its legal practitioner, an affidavit must be obtained from
that legal practitioner confirming that position. That has not been done and
what remains is the applicant's self-serving denial of mandate not supported by
facts.
The applicant seeks a temporary interdict and must
therefore establish the traditional requirements for such an interdict, namely;
(i) A prima facie right;
(ii) An injury actually committed or reasonably
apprehended;
(iii) The absence of similar protection afforded by any
other ordinary remedy; and
(iv) A balance of convenience favouring the grant of the
interdict.
See Setlogelo v Setlogelo 1914 AD 221…,; Tribac (Pvt) Ltd v
Tobacco Marketing Board 1996 (2) ZLR 52…,; Boadi v Boadi and Another 1992 (2)
ZLR 378.
In my view, the applicant has failed to pass even the first
hurdle; the existence of a prima facie right. I have said that she obtained
transfer of the Stand by virtue of an impugned court order which allowed for
the conveyance of the Stand from the first respondent to herself. That court
order has since been rescinded and for that reason the applicant has no legal
basis to retain ownership. The effect of rescission is to return the parties to
the status quo - that of the first respondent retaining ownership. The
applicant has to start afresh to prove an entitlement to the Stand on the
merits.
The applicant has made an application for rescission of
judgment, which, in my view, is ill-conceived and a sheer waste of time. As I
have said, instead of proceeding along that route, she should have pursued the
main cause. Which then brings me to the question of whether an order granting
rescission of judgment can be rescinded when in fact its effect is
interlocutory in nature; a question which I left open in Kwaramba v Winshop
Enterprises (Pvt) Ltd and Others HC788/15, HH788-15.
The term interlocutory refers to all orders pronounced by
the court upon matters incidental to the main dispute, preparatory to, or
during the process of, the litigation. See JONES and BUCKLE, The Civil Practice
of the Magistrates Court in South Africa,
Vol. 1, 8th edition…, , quoted with approval in Gillespies
Monumental Works (Pvt) Ltd v Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 (H)…,.
Interlocutory matters are pronouncements on matters incidental to the main
dispute and ordinarily would not have a final and definitive effect on the main
cause.
What a rescission of judgment does is to re-start the whole
process of litigation by allowing, in the interim, the parties to go back and
plough through the dispute on the merits in order to resolve it. It takes away the
advantage given to one party in default and places both parties on par, as it
were. For that reason, it is interlocutory in nature as it does not decide the
rights of the parties or have the effect of disposing of the whole or a portion
of the relief claimed by one of them. It is merely a procedural ruling paving
the way for a determination of the dispute.
See Jesse v Chioza 1996 (1) ZLR 341 (S) 344G; Dobrock
Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd and Another 2008 (2) ZLR 153
(S).
The foregoing authorities relate to interlocutory orders in
respect of appeals making it clear that to the extent that such orders are not
definitive and do not decide the rights of the parties, they cannot be appealed
against unless if leave to do so is sought and obtained. In my view, that
principle should apply to rescission of judgment orders. Rescission of judgment
involves the exercise of a discretion, which ordinarily would be difficult to
challenge in any event. When that is considered together with the effect of
rescission, which merely allows the matter to be definitively dealt with on the
merits, it becomes clear that it is undesirable for a rescission order to be
rescinded.
Whichever way one looks at it, it is wrong to refuse to
proceed with the merits in favour of clinging to a default judgment that would
have been rescinded by the court in the exercise of a discretion. Even on the
basis of public policy, it remains wrong. Courts of law are there to adjudicate
disputes on the merits. While matters may be disposed of procedurally, in my
view, a definitive determination of the merits should be the first prize. Where
a court has allowed the merits to be determined, it is in my view the height of
turpitude to then approach the same court to abandon the merits for something
else. If that were to be allowed there would be no finality in litigation as
matters will be argued over and over again ad infinitum. I conclude therefore
that a rescission of judgment order should not be rescinded, unless if obtained
fraudulently or by other unlawful means.
Having come to that conclusion, there is no basis for a
prima facie right in order to prosecute an ill-conceived application. There is
no basis for the applicant to retain transfer obtained on the strength of an
order that has been rescinded. She still has to prove a right. In fact, none of
the requirements of a temporary interdict have been met. For that reason, the
applicant must suffer grief.
In the result, the application is hereby
dismissed with costs.
