NDOU J: The applicant
seeks rescission of judgment granted in his absence. Briefly, the 1st and 2nd
respondents issued out summons and an urgent chamber application in respect of
the same matter on 10 June 2005 i.e. HC 1026/05 and HC 1027/05. The application has not been set down by the
respondents. The respondents were
instructed to serve the application on the applicant. The applicant's legal practitioners filed
opposing papers. The application had not
been set down.
Due
to oversight, the applicant did not at the same time file an appearance to
defend in the action proceedings. The
long and short of it is that the applicant admits being negligent in his
tardiness. He has, however, shown his bona
fides in that he filed opposing papers in the application that was filed. In essence, the opposing papers point to his
opposition of this action as well. What
the applicant should have done, after receiving the summons under HC 1026/05
and the application under HC 1027/05 simultenously, is to file an appearance to
defend and the opposing papers respectively.
He did the latter and negligently omitted to do the former. Bearing in mind that the 1st and 2nd
respondents issued out the action HC 1026/05 and the application HC 1027/05
simultenously arising mainly from the same facts, the applicant's explanation
is understandable and reasonable. The
applicant has given a candid and comprehensible explanation for his
default. It is trite that a litigant who
admits that he was negligent in his tardiness may nonetheless be found to merit
rescission if he shows bona fides - Songore v Olivine
Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211E-F and Khumalo v Mafurirano
HB-11-04 at page 7 of the cyclostyled judgment.
This is the case here. Looking at
the facts that are common cause I do not consider the applicant's case as being
hopeless. It is trite that the court
would not consider that the application should be refused unless if it thought
that the applicant's case is hopeless - Stevenson v Broadly NO
1972(2) RLR 467(A). In this regard, this
is what McNALLY JA said in the Songore
case, supra, at 213A:
"One is naturally
reluctant to reach a decision which would result in the giving of judgment
against a person without his being heard, when he protests that he has a valid
defence. If I were convinced that the
defendant in this case was bona fide and had a prima facie
defence, then I might be unjustified in condemning him for a short delay
despite the inadequacy of his explanation."
I have already indicated above that
the applicant gave a bona fide explanation. But does he have a prima facie defence
on the merits with reasonable prospects of success? That there was an agreement in respect of the
piece of land in dispute is beyond dispute.
It is common cause from the papers that the applicant paid to the 1st
and 2nd respondents a sum of $2 000,00 and a Toyota Hilux motor
vehicle pursuant to the agreement between the parties. Under HC 1026/05 and HC 1027/05 the 1st
and 2nd respondents' case is simply that there was no agreement of sale
but a partnership. So the main issue is
the nature of the legal relationship between the parties. Further, the 1st and 2nd
respondents placed a lot of the emphasis on the absence of the consent of the
Bulawayo local authority. The lack of
such consent at the time of the signing of the agreement does not invalidate
the agreement as such consent may still be obtained later - Mukarati v Mkumbu
1996(1) ZLR 212 (S). The applicant has a
bona fide defence to the 1st and 2nd respondents'
claims. I would be doing applicant
injustice if I do not give him an opportunity of presenting such a defence - Ndebele
v Ncube 1992(1) ZLR (S) at 290C-E.
Accordingly, it is hereby ordered
that:
1.
the default judgment granted
against the applicant on 15 July 2005 be and is hereby rescinded.
2.
the automatic bar be and is
hereby uplifted.
3.
that applicant files his
appearance to defend within 7 days of the date of this order.
4.
the costs be costs in the
cause.
Samp Mlaudzi & Partners, applicant's legal practitioners
Cheda & Partners, 1st and 2nd respondents' legal
practitioners