The facts of the matter are themselves disarmingly simple.
The first respondent advanced a loan to a company called
Pritsborough Marketing (Pvt) Ltd in which the applicant was one of the Directors.
The applicant is one of the Directors who signed as guarantor and co-principal
debtor. In addition, he tendered his property, Stand 1212 Marlborough, Harare
as security and had a first mortgage bond registered on the property.
When the debt was not settled, the first respondent
instituted summons action against the applicant and others, in HC9134/10,
seeking an order for payment of what remained outstanding on the loan. In due
course judgment was entered against the applicant, in default, on 17 February
2011, and a writ issued against the applicant's property, sparking the
relentless litigation I have referred to.
The applicant's immovable property, which was placed under
attachment, was subsequently sold despite spirited effort by the applicant to
stop the sale in HC3613/11. All applications to stop the sale failed and even
the challenge against confirmation of the sale came to naught.
All that did not stop the applicant filing this application,
on 8 July 2014, for condonation of the late filing of a rescission of judgment
application, a suspension of the Sheriff's sale of his property, and for the
placement of a caveat on his Title Deed No. 3240/92 on the pain of costs to be
borne by the first respondent. This, despite the fact that not only was the
judgment sought to be rescinded carried into execution a long time ago, the Sheriff's
sale of his property was confirmed a long time ago with the purchaser having
already taken transfer. In addition, it would not be possible to place a caveat
on a title deed which exists only on paper, the property previously held by it
having exchanged hands.
As if that was not bad enough, in his founding affidavit he
sets about on a wild goose chase telling a story about meetings he held with
certain individuals, including the other Directors of Pritsborough Marketing
(Pvt) Ltd, as he made attempts to be released from liability. The affidavit is
remarkable, not for what it says, but for what it does not say. It does not
even begin to give an explanation why the applicant did not act timeously; why
he should be condoned when the application was made four (4) years after
execution; what he was doing in between; and what the basis of his defence is.
What is apparent from all this is that the applicant does
not appreciate that condonation is forgiving a wrong committed by a litigant
who regrets it, and, having repented, he seeks to be given another chance.
There must, therefore, be an explanation given for inaction which is worthy of
the court's forgiveness. As the old proverb goes: 'Forgiving the unrepentant is
like making pictures on water.
Condonation is an indulgence.
A party seeking to approach this court for a rescission of
a judgment entered in the absence of that party must do so within one (1) month
of becoming aware of the existence of the judgment sought to be rescinded. That
is in terms of Rule 63(1) of the High Court Rules, 1971. If that is not done,
then, condonation of the late filing of the application must be sought. The
point is made by SANDURA JA in Viking Woodwork (Pvt) Ltd v Blue Bells
Enterprises (Pvt) Ltd 1998 (2) ZLR (S)…, that:
“If he does not make the application within that period,
but wants to make it after the period has expired, he must first of all make an
application for condonation of the late filing of the application. This should
be done as soon as he realises that he has not complied with the Rule. If he
does not seek condonation as soon as possible he should give an acceptable
explanation not only for the delay in making the application for the rescission
of the default judgment, but also for the delay in seeking condonation.”
Certain broad factors which the court has to take into
account in deciding whether to condone a failure to comply with the Rules of Court
have emerged from decided cases. These are:-
(a) That the delay involved was not inordinate, having
regard to the circumstances of the case;
(b) That there is a reasonable explanation for the delay;
(c) That the prospects of success should the application be
granted are good; and
(d) The possible prejudice on the other party should the
application be granted.
See Qalisa Investments (Pvt) Ltd v Drummont HB146-11…,.;
Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…,.; Director of Civil Aviation
v Hall 1990 (2) ZLR 354 (S)…,.; Ncube v CBZ Bank Ltd & Ors HB99-11…,.
In the present case, the applicant has failed to satisfy
even a single requirement.
For a start, the delay involved between the grant of the
default judgment on 17 February 2011, and the filing of this application for
condonation, on 8 July 2014, is over three (3) years. Not the slightest hint is
given in the papers as to why the applicant took so long to approach the court
and what he was doing during that time. It was, however, during that period,
that the judgment was executed bringing into the fray a third party who
purchased the house. We know, of course, that it was, again, during that period,
that the applicant contented himself with filing endless defective, if not
meritless, applications to stop the sale.
Accordingly, no explanation whatsoever is proffered for the
delay, let alone a reasonable one. More importantly, the applicant clearly does
not have a defence in the main action. He has repeatedly been advised as much,
and by BERE J in the judgment I have cited above involving the same parties;
but like the Biblical Thomas, he would want to see for himself. As BACON once
put it:-
“There is, in human nature, more of the fool than the
wise.”
The applicant signed a Deed of Suretyship guaranteeing
payment of the debt. He later sought to extricate himself from the shackles of
that suretyship - but the wrong way. Instead of engaging the beneficiary of
that suretyship, he engaged his co-Directors thereby leaving himself firmly
within the web of that security to the extent that the first respondent was
concerned. No amount of litigation, applications, supplementary affidavits,
supplementary this or that filed without regard to the provision of the Rules,
as the applicant has seen fit to file, can change that position. Judgment was
therefore properly sought and properly granted. It will not be rescinded for
the reasons advanced by the applicant.
As I have already stated, there is a third party now
involved who bought the property and took transfer. He has not even been cited
in these proceedings. The prejudice on that third party, and, indeed, on the
first respondent is there for all to see.
The inescapable conclusion, therefore, is that this
application is hopeless by its lack of merit; it should not have been made at
all especially as the applicant has been warned, in the past, that any further
attempt to pursue the same matter will only result in him suffering grief….,.
In the result, the application is hereby
dismissed with costs on a legal practitioner and client scale.
