This is an urgent application for
provisional relief staying execution of a judgment of this court granted on 26
March 2012 pending the hearing of a rescission of judgment application which
has been filed by the applicant.
It
is not clear from the rescission of judgment application filed on 17 April 2012
whether the application is made in terms of r 63(1) or r 449(1)(a) of the High
Court of Zimbabwe Rules 1971. However in that application the applicant does
allude to the fact that there was no legal basis for the registrar of this
court to issue a writ of execution against its property in light of the
appearance to defend filed and that default judgment should not have been
entered at all. This therefore suggests that the application fits under an
application made in terms of r 449(1)(a) on the basis that the judgment "was
erroneously sought or erroneously granted in the absence of any party affected
thereby".
The
genesis of the matter is that the first respondent instituted summons
proceedings against the applicant in case number HC 2271/12 on 27 February 2012
which summons was served upon the applicant on 7 March 2012. Five days later,
on 12 March 2012 which was 2 days into the dies
inducae, the applicant entered appearance to defend and signed the appearance
book at the registry in terms of r 48. Written notice of the appearance was
stamped by the registrar on that date but was not given to the first respondent
or its legal practitioners, it having been directed to a wrong set of legal
practitioners.
Unaware
of the appearance, the first respondent moved for judgment, which for some
reason was granted by KARWI J on 26 March 2012 aforesaid. Mr Bvekwa appearing for the first
respondent conceded that the judgment was granted in error and that if the
appearance had been brought to the attention of the judge, judgment would not
have been granted. He however argued that the applicant is not entitled to the
relief sought because there is no process it filed which is worth protecting by
way of an order for a stay of execution. I shall deal with that later.
Having
obtained judgment, the first respondent issued a writ and instructed the Deputy
Sheriff to remove applicant's stock in trade at its various shops around Harare
without giving notice to the applicant. This was done on 16 April 2012. The
papers placed before me show that on 17 April 2012 Mr Venturas representing the applicant brought to the attention of the
first respondent's legal practitioners that appearance to defend had been
entered and therefore that judgment had been granted in error. This however did
not inspire the first respondent to stay execution or release the goods
prompting the applicant to make this application.
The
application is strongly opposed and Mr Bvekwa
for the first respondent submitted that the applicant is not entitled to a stay
of execution as it does not have a defence, relying as it does on a counter
claim, which can be made independently of these proceedings. Mr Samukange for the applicant submitted
that the court should not even inquire into the merits of the defence given
that the judgment was granted in error.
ROBINSON
J, had occasion to deal with a similar matter in Banda v Pitluk 1993(2)
ZLR 60(H) were appearance had been entered before default judgment was given
but a copy of the notice had not been served on the respondent's legal
practitioners in terms of r 49. At p 63 D-F the learned judge stated, quoting
Herbstein and van Winsen, with approval:-
"In The
Civil Practice of the Superior Courts in South Africa 3rd ed,
Herbstein and van Winsen state as follows at
pp 242 and 243 under the heading "WHEN NOTICE (OF INTENTION TO DEFEND)
IS IRREGULAR":
'(b) A notice of intention to defend will also
be irregular if the defendant having filed the original notice with the
registrar fails to serve a copy on the plaintiff or his attorney.
On the analogy of the former Cape
practice (which, I would add, is the practice which was followed by our courts
and which, in terms of Cape r 17(3) required the defendant to give notice in
writing of entry of appearance to the plaintiff or his attorney, it is
submitted that in the event of such failure the plaintiff will be entitled to
assume that notice of intention to defend has not been given. If, however he
does so and moves for judgment the court will not grant judgment, but will
order the defendant to pay the wasted costs occasioned by his omission?"
The
court in that matter went on at 64 F-G to say:-
"In
my view, when considering the question of rescission of a default judgment
under r 449(1)(a) on the ground that it was 'erroneously granted in the absence
of any party affected thereby'; once the court finds, as it has found in this
case, that the judgment was erroneously granted against the defendant, either
because of an error on the part of the judge before whom the application for
default judgment was placed in failing to observe the notice of appearance to
defend contained in the court file or, as is much more likely, because of the
absence of the notice of appearance to defend in the court file through delay
on the part of the Registry staff in placing the notice in the court file, then
that is an end to the matter and the court should rescind the judgment as I
therefore intend to do in this case".
I
associate myself with the above remarks which I am in total agreement
with. However I am not sitting to decide whether to
rescind the judgment or not but to decide whether to stay execution and release
the applicant's goods until the application for rescission has been determined.
In my view once Mr Bvekwa conceded
that the judgment was granted in error, he could not properly argue that the
rescission of judgment application has no merit. To the extent that it has
merit, execution cannot be allowed to continue.
It
remains for me to deal with the issue of costs. Usually the costs follow the
result but there is the question of the execution costs which should have been
avoided. Rule 49 of the High Court Rules is peremptory in its application that:
"Within
24 hours of the entry of appearance to defend written notice thereof shall be
served on the plaintiff or on his legal practitioner where he sues by a legal
practitioner, at the plaintiff's address for service. Such notice shall be in
Form No. 8".
The
applicant in this matter did not comply with that provision. Instead it sent
the notice to Mavhunga & Sigauke, legal practitioners who had nothing to do
with the matter. It was this lack of diligence which caused the first
respondent to wallow under the mistaken apprehension that appearance had not been
entered and to proceed to move for judgment and then execution.
I
do not agree with Mr Samukange that
the first respondent lost the right to be paid wasted costs when they
instructed the Deputy Sheriff to remove goods without notice or when they
proceeded with removal after being notified that an appearance was entered.
Firstly, the proviso to r 326A allows for removal without notice to prevent
concealment of property. In the present case it has not been disputed that the
applicant did conceal property from shop number 7 which vindicates the first
respondent's action.
Secondly,
in an affidavit which has been filed of record, Mr Venturas stated that he was only seized with the matter at 10,30 am
on 17 April 2012 after being alerted by Mr Samukange's
secretary. Only then did he attend on the first respondent's legal
practitioners with the notice of appearance. According to the Deputy Sheriff,
removal had already taken place the day before. In my view it is only at that
stage that the first respondent should have desisted from execution.
Accordingly
the first respondent's wasted costs of removal of goods should be borne by the
applicant.
In
the result, I make the following order, that
The
provisional order is granted in terms of the amended draft order the interim
relief of which is that:-
(a) The
execution of the judgment of this court made on 26 March 2012 is hereby stayed
pending the determination of a rescission of judgment application filed by the
applicant.
(b) The
Deputy Sheriff is directed to release all the goods and stock removed from the
applicant's 7 shops listed in the notices of removal.
(c) The
applicant shall bear the costs of execution.
Venturas
& Samukange, applicant's legal practitioners
Bvekwa Legal Practice, 1st
respondent's legal practitioners
