This is an application for a rescission of a rescission of
judgment order granted on 16 September 2014, per MTSHIYA J, which squarely
answers to the call made by the Supreme Court in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, that:
“It is the policy of the law that there should be finality
in litigation. On the other hand, one does not want to do injustice to
litigants. But it must be observed that in recent years, applications for
rescission, for condonation, for leave to apply or appeal out of time, and for
other relief arising out of delays either by the individual or his lawyer have
rocketed in numbers. We are bombarded with excuses for failure to act. We are
beginning to hear more appeals for charity than for justice. Incompetence is
becoming a growth industry. Petty disputes are argued and then re-argued until
the costs far exceed the capital amount in dispute. The time has come to remind
the legal profession of the old adage, vigilantibus non dormientibus jura
subveniunt – roughly translated; the law will help the vigilant but not the
sluggard.”
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judgment which would have been rescinded by the court thereby paving the way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 judgement which none of us can see?
In HC6261/08, the current applicant obtained an order in
this court on 16 December 2009, per KARWI J (may his soul rest in eternal
peace), in terms of which, inter alia, the verbal agreement between him and the
first respondent, for the sale of Stand 100 Mandara, Harare was declared valid
and binding. He was required by that order to pay the balance of the purchase
price in the sum of $109,323=73 within 3 years and thereafter take transfer of
the property. In HC6410/13, the current first and second respondents filed a
court application seeking a rescission of that earlier order; which application
was filed on 7 August 2013. It was served upon the current applicant,
respondent therein, on 8 August 2013, meaning that the dies inducae within which to oppose the application expired on 26
August 2013.
It was not until 27 August 2013 that the applicant filed
opposition, clearly a day out of time but without seeking condonation of the
late filing of notice of opposition. That notwithstanding, the respondents
filed heads of argument on 31 October 2013 which heads were served on the
applicant on 1 November 2013. In terms of Rule 238(2a), the applicant had until
15 November 2013 to file his own heads of argument. He did not, and was
therefore automatically barred by virtue of the provisions of Rule 238(2b) for
the second time, he having been barred initially for failure to file opposition
timeously.
As it now turns out, at least according to his founding
affidavit, the two bars operating against the applicant did not deter his legal
practitioner preparing a brief to Advocate Uriri on 23 January 2014, some 3
months later, which the good advocate received on 24 January 2014, with the
instructions;
“1. Kindly prepare heads of arguments in the above matters.
2. Argue the matters.”
As it turns out, those instructions were not complied with.
In fact, no heads of argument were prepared or filed. They have never been
prepared and up to now, after 1 year 10 months, no such heads of argument have
been generated. One should add that even the bar operating against the
applicant in HC6410/13 for failure to file opposing papers on time still
stands, has not been tampered with, and no effort whatsoever has been made to
have it uplifted.
It is against that background that the matter came before MTSHIYA
J on 16 September 2014. On that date, not only was the applicant's counsel
unable to argue the matter by reason that the applicant was barred for failing
to file a notice of opposition within the time allowed by the Rules, in terms
of Rule 238(2b) of the Court Rules, he could not address the court except in
making an application for a postponement or the upliftment of the bar because
he was barred for failing to file heads of argument.
The applicant's problems did not end there.
Although the applicant claims that he had spent a lot of
money retaining counsel – he had three (3) advocates involved in his matter and
one (1) instructing legal practitioner – none of them was able to appear before
MTSHIYA J on his behalf on 16 September 2014. We are not told what had become
of his legal practitioner on that date. Advocate Uriri, who had received the
brief to prepare heads of argument and argue the matter did not attend
presumably because he had handed the brief over to Advocate Zhuwarara who had
health problems with his wife. He is said to have come to court but left to
attend to his personal business before the court sat. Advocate Hashiti had been
roped in and is said to have been itching to argue the matter. One wonders how
this could be done when heads of argument had not been filed and there was a
double bar staring the applicant in the face.
It was probably upon such realisation that the erstwhile
advocate's enthusiasm quickly waned and he also beat a hasty retreat. That way,
when the matter was called, there was no one who appeared for the applicant but
counsel for the respondents was still magnanimous enough to try and have the
matter stood down to sometime later which the judge, understandably, could not
accede to. He promptly granted the order for rescission of judgment as the
application was clearly unopposed despite the applicant being aware not only of
the application, but also of the set down.
It is that order for rescission of judgment which the
applicant now desires to have rescinded on the ground that he was not in wilful
default.
No attempt, however, is made to state whether he has a bona
fide defence to the first application for rescission of judgment. The
application comes aboard the founding affidavit of Advocate Tawanda Zhuwarara
who says that prior to his involvement the applicant had, through his legal
practitioner, briefed Advocate Uriri. We know of course that this was on 24
January 2014. We also know that when Advocate Uriri was engaged the applicant
had long been barred, firstly, for failure to file opposition on time, and,
secondly, for failure to file heads of argument on time. In fact, the brief was
sent 2 months later.
As if that was not enough, according to Advocate Tawanda
Zhuwarara, the brief was only passed on to him “mid–August 2014” in order for
him to take a fresh look at the matter and possibly draw up the heads of
argument. It means, therefore, that Advocate Uriri had sat on the brief for
more than 6 months without preparing heads of argument, if Advocate Tawanda
Zhuwarara is to be believed, when the applicant's heads had been served, on 1
November 2013. The involvement of Advocate Tawanda Zhuwarara therefore came 9
months later.
There must have been something cynical about the
preparation of those heads of argument or lack of it because Advocate Tawanda
Zhuwarara also did not prepare the heads of argument. He says he only realised
that he had done nothing when Advocate Uriri “made a follow up of the matter on
10 September 2014” - clearly a month later and days before the set down date.
Still no heads of argument were prepared as Advocate Tawanda Zhuwarara busied
himself with trying to negotiate a settlement; an attempt which he was only
able to undertake on 15 September 2014 - a day before the court date.
It is on those facts that the applicant urges me to rescind
the judgment in an application made in terms of Rule 63 of the High Court
Rules, 1971. In terms of Rule 63(2), the court may set aside a judgment given
in default where there is “good and sufficient cause” to do so. The factors
which the court will take into account in determining good and sufficient cause
have been discussed in a line of cases which include: Roland & Anor v McDonell 1986 (2) ZLR 216 (S); Sangore v Olivine
Industries (Pvt) Ltd 1988 (2) ZLR 210;
Barclays Bank of Zimbabwe Ltd v CC International Ltd SC16-86; Stockhill v
Griffiths 1992 (1) ZLR 172 (S). They
are:
1. The reasonableness of the applicant's explanation for
the default;
2. The bona fides of the application to rescind the
judgment;
3. The bona fides of the defence on the merits; and
4. The prospects of
success of that defence.
Those factors must be considered in conjunction with one
another and with the application as a whole.
In my view, this application fails on all fronts. In fact,
the conduct of the applicant throughout has been such a serious affront of the Rules
of Court, a lamentable disdain of the Rules and a lack of seriousness bordering
on contempt. One really wonders how a party that has conducted himself thus, by
his own conduct and that of his host of legal representatives, would want the
court to exercise its discretion in his favour. Rules of court are there to
regulate the practice and procedure of court and therefore must be adhered to.
They are the court's tools fashioned for its own use: Nxasana v Minister of
Justice & Anor 1976 (3) SA 744.
Non-compliance with the Rules of Court will be condoned
upon good cause being shown by the applicant and there must, at all times, be a
reasonable and acceptable explanation given by the applicant for failure to
adhere to the Rules: Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2)
ZLR 60 (S); General Accident Assurance Co SA Ltd v Zampelli 1998 (4) SA 407 (C)
411 C-D.
Here is a party that was served with a court application
calling upon him to file opposition within 10 days. It failed to comply and
chose to file opposition at its own time. It was served with heads of argument
through its legal practitioners who knew pretty well of the imperatives of
failure to comply with Rule 238(2a). Again, it failed to file heads of argument
within the time allowed by the Rules. With disdain, it has not filed heads of
argument at all and has not bothered to have the double bar, staring it in the
face, uplifted.
As if no bar existed, that party had the cheek to instruct
counsel to prepare heads of argument two (2) months after it was served with
those of the applicant and still saw nothing wrong with that. Even when counsel
did not produce heads of argument for eight (8) months, that party saw nothing
wrong. More importantly, no explanation is given for such conduct and for the
inordinate delay that occurred, meaning that the application fails the first
inquiry relating to the reasonableness of the explanation for the default.
It also fails on the bona fides of the request for
rescission.
A party that does not do anything at all to prosecute a
defence cannot come to court without any explanation for that failure and
expect to succeed. More importantly, the order sought to be rescinded was not a
final order. As pointed out by counsel for
the respondents, it was interlocutory in nature. It was not the end of the
world for the applicant who still had a chance, in the main cause, to redeem
himself. There can be no bona fides in an application of that nature.
I have stated that the founding affidavit does not attempt
to set out any defence. For that reason, the application fails to relate to the
last two (2) factors for consideration in an application of this nature, namely,
the bona fides of the defence on the merits and its prospects of success. I am
aware that the applicant attempted to raise a defence in the answering
affidavit but that does not help him at all. This is because in our law, an
application stands or falls on its founding affidavit.
See Mobile Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H)…,; Muchini v Adams SC47-13.
That point is eminently stated by MAKARAU JP…, in Hiltunen
v Hiltunen 2008 (2) ZLR 296 (H)…, where she remarked:
“It is trite that in application proceedings, it is to the
founding affidavit that the court will look to for the cause of action being
alleged by the applicant and the evidence that the applicant has to sustain
such a cause of action. Hence, as has been said in numerous cases before, an
applicant must stand or fall by his founding affidavit and the facts alleged
therein because those are the facts which the respondent is called upon either
to affirm or deny. See Magwiza v Ziumbe NO & Another 2000 (2) ZLR 489 (S) at 492 D-F.”
Having failed to relate what defence he has, the applicant
could not come back after the respondents had answered to the application to
try and raise a defence knowing fully well that the respondents would have no
other opportunity to respond to those facts.
I therefore come to the conclusion that the applicant has
not shown “good and sufficient cause” for the rescission of the order made on
16 September 2014.
Even if the blame may lie with the applicant's team of
legal practitioners, that does not help him at all. This is because there is a
limit within which a litigant can escape the dilatoriness of his legal
practitioner. This matter was handled with such tardiness for an extended
period of time that the applicant himself should shoulder the blame. He should
have followed up his case as it was not enough to leave everything to his team
without even checking what they were doing for a year.
Counsel for the respondents made the extra points that it
is doubtful whether an order granting rescission, and, therefore, allowing the
parties to deal with the main matter can be rescinded. He relied on the
authorities discussing interlocutory orders which are generally not appealable
and therefore should not be rescinded: Jesse v Chioza 1996 (1) ZLR 341 (S); Gillespies Monumental Works (Pvt) Ltd v
Zimbabwe Granite Quarries (Pvt) Ltd 1997
(2) ZLR 436 (H); Dobrok v Turner & Sons (Pvt) Ltd and Others 2008 (2) ZLR
153.
I have concluded that the application fails on the ground
that good and sufficient cause for rescission has not been established. It is
therefore not necessary to discuss that issue as well as the jurisdictional
issue of whether I can grant relief which would have the effect of overturning
findings made by MTSHIYA J on the reasons of the applicant's default and the
request for an indulgence that was made to him which he declined. See City of
Mutare v Mawoyo 1995 (1) ZLR 258 (H)….,.
In the result, it is ordered that:
1. The application is hereby dismissed.
