The applicant, a medical aid society, whose business it is
to cover its members when they seek medical services from medical doctors and
medical institutions, consented to judgment in the sum of $155,268=10 in favour
of the respondent by virtue of a Deed of Settlement signed by the parties which
was to be paid within seven days from 16 February 2016, which is the date the
consent order was granted by this court, per TAKUVA J.
The respondent had instituted summons action against the
applicant in HC1319/15 which the applicant, through its current legal
practitioners, had defended.
On 6 August 2015, the applicant's legal practitioners
signed a Deed of Settlement in terms of which the applicant admitted liability
in the sum of $305,268=10 of which $150,000= had already been paid leaving a
balance of $155,268=10 which it undertook to pay in monthly instalments of $50,000=
commencing on 31 July 2015. For good measure, the legal practitioners in
question committed the applicant to payment of a further $1,000= in legal
costs. In the event of a default, the Deed of Settlement was to be made a court
order to be executed.
Alleging default, the respondent sought judgement in terms
of the Deed of Settlement, and an order was then made aforesaid.
It is that court order which the applicant would like to
have rescinded in terms of Rule 56 of the High Court of Zimbabwe Rules, 1971 in
its application filed as HC523/16. In that application, the applicant alleges
that after receiving the summons, it instructed its legal practitioners to
settle the matter. The practice is that when a settlement is reached the
applicant is advised to enable it to check and approve the settlement against
its records of what is owed.
In this case, the lawyers did not advise the applicant of
the settlement until they had signed the Deed of Settlement. When the admission
of liability was made, the respondent was not owed the admitted amount but only
$1,076=60 which was paid when the reconciliation was made around
October/November 2015.
Although the reconciliation was made with the respondent,
which remained silent for some time, the respondent still went ahead and moved
for judgment on the basis of the Deed of Settlement signed in August 2015. The
applicant says it was surprised to receive the court order on 22 February 2016,
at a time when it owed the respondent only $2,922=60.
The applicant has then sought to have the consent order
rescinded aforesaid. It has also submitted this urgent application for a stay
of execution, to wit:
“TERMS OF FINAL
ORDER SOUGHT
That you show cause to this Honourable Court why a final
order should not be made in the following terms:
1. That pending the determination of an application to set
aside an order by consent in HC523/16 respondent is hereby interdicted from
initiating or proceeding with the process of executing the court order in
HC1319/15.
2. The respondent is to pay costs of suit.
INTERIM
RELIEF GRANTED
That pending the determination of this matter, the
applicant is granted the following relief:
1. The respondent be and is hereby interdicted from
initiating and proceeding with the execution and attachment of applicant's
property pursuant to the court order in HC1319/15.
2. If attachment has already been done, such attachment is
hereby stayed. If applicant's property has already been removed, the removed
property is to be restored back to applicant forthwith.”
The deponent of the founding affidavit, Cosmas Mukwesha,
who is the Group Legal and Corporate Affairs Executive, says that while the Deed
of Settlement claimed that at the time of its signing the applicant owed $305,268=10,
only a sum of $714=70 was owing and it was duly paid on 13 August 2015. This occurred
as a result of the admitted oversight of the applicant's legal practitioners.
The respondent had based its claim on its submitted claim forms which did not
take into account the payments that had been made by the applicant. Having
discovered the mistake, the applicant has moved quickly to rectify it by
seeking a rescission of judgment.
The application is opposed by the respondent….,.
On the merits of the matter, Roselyn Mugodhi stated that
there was no mistake in the settlement of the matter as the applicant and its
legal practitioners “were in absolute communication.”
Unfortunately, she does not show how she arrives at the
conclusion and has not produced any proof of the communication as would
discredit the assertion by the applicant that there was a mistake.
Roselyn Mugodhi insisted that the amount owing, as at 25
September 2015, is simply the balance taking into account payments made in
terms of the Deed of Settlement. She made reference to four letters written by
T. Bhatasara, between 2 June 2015 and 14 July 2015, as pointing to the fact
that there was communication between attorney and client and to rule out the
existence of a mistake in consenting to judgement.
Again, it is unfortunate that the letters in question were
addressed to Sansole and Senda, the legal practitioners of the respondent and
not the applicant. They were not even copied to the applicant. They therefore
do no disprove the claim by the applicant that the settlement was reached
without consulting it or that there was a mistake.
The respondent insisted that the applicant “is bound by the
sins and omissions of its legal practitioner.” and should not be allowed to
resile from the Deed of Settlement. It has no prospects of success in its
application for rescission of judgment.
This may well be so, but then, I am not being asked to
determine the merits of the application that has been made in terms of Rule 56.
I have been asked to stay execution to facilitate the safe prosecution of that
application.
Counsel for the respondent submitted that the application
for rescission of judgment which is sought to be prosecuted has been brought in
terms of the wrong Rule, Rule 56, and seeks to rescind the judgment without
setting aside the impugned Deed of Settlement. It should have been made in
terms of Rule 63(1) of this court's Rules.
The draft order also does not seek to set aside the Deed of
Settlement. For that reason, as the application is defective and does not
advance the applicant's case in any way, the application for stay of execution
must also be dismissed.
I do not agree.
The judgment that is sought to be rescinded was entered in
terms of the Deed of Settlement, clause (e) of which provides:
“In the event of default of payment of the monthly
instalments and later than the 10th of the following month of
default, the Deed will become an order of court which can be executed upon.”
It was in terms of that clause that the respondent sought
judgement, and the judge granted it, after initially querying whether the
applicant had defaulted and was advised, through an affidavit sworn to on 8
February 2016 by Roseline Sururu of the respondent, that no payments had been
received by the respondent. Therefore, the judgment was granted by consent and
can only be set aside in terms of Rule 56 and not Rule 63(1) which speaks to a
default judgment.
Regarding the draft order, I agree with counsel for the
applicant that if granted the order will enable the applicant to file a plea.
As to whether the respondent will be allowed to cling onto the Deed of Settlement,
which for all intents and purposes would amount to a withdrawal of an
admission, will be determined by the court at the trial.
I therefore reject that argument.
The applicant only seeks from me interim protection.
Interim relief is granted on the mere showing of a prima facie case.
See Kuvarega v Registrar General and Another 1998 (1) ZLR
188 (H)…,.
In terms of Rule 56, a judgment given by consent may be set
aside by the court and leave granted to the defendant to defend such action on
“good and sufficient cause” being shown. It is stated, in the headnote of
Roland and Another v McDonnell 1986 (2) ZLR 216 (S), that:
“A judgment given by consent may be set aside on good and
sufficient cause; 'good and sufficient cause' in this context is to be
determined according to the same principles by which it is to be determined in
an application to set aside a judgment given by default. Moreover, a party will
not normally be permitted to fight over, again, a battle which has been fought
unless there has been a significant change in circumstances or the party has
become aware of facts which he could not reasonably have known or found out in
the first encounter.”
See also Masulani v Masulani and Others 2003 (1) ZLR 491
(H)…,.
It has been stated that the same principles applied in
determining good and sufficient cause within the meaning of Rule 63 also apply
to an application in terms of Rule 56. See Nyemba v CBZ Bank and Others
HH255/114; Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Washaya v Washaya 1989 (2) ZLR 195 (H)…,.
While I am not sitting, at the moment, to determine the
application for rescission of judgement, it is necessary to take a peek at that
application in order to see whether it has merit as to entitle the applicant to
the remedy of an interdict for stay of execution. This is because, as I have
said, the applicant still has to satisfy the requirements for the grant of an
interdict which include the establishment of a prima facie right. This court
will not grant a stay of execution merely at the asking or just because any
application for rescission has been made even when it is frivolous or
vexatious. It will only grant a stay pending the determination of such an
application when the application is arguable.
The applicant and its legal practitioners may have
conducted their case in a tardy and far from satisfactory manner resulting in
the legal practitioners consenting to judgment. The fact however remains that
to the extent that the liability of the applicant to the respondent was always
fluid (the respondent was reducing the debt monthly), the applicant has an
arguable case. There is an explanation for the mix up and an injustice will
occur if it is not ventilated properly.
I am therefore satisfied that the applicant has made a case
for the relief sought.
Accordingly, the provisional order is granted in
terms of the draft order.
