MTSHIYA
J:
This
is an opposed application for rescission of a default judgment.
On
21 November 2013 this court granted the following default judgment:
“IT
IS ORDERED THAT:
1.
Toyota Sequoia Registration Number ACO 3422, Engine Number
310R-5599048, Chasis number STDDN5G18CS063229 be and is hereby
released to the applicant.
2.
The 1st
and 2nd
respondent be and are hereby ordered to release the Toyota Sequoia
motor vehicle to the applicant forthwith upon service of this order
to them by the Sheriff or his Deputy.”
It
is the above judgment that the applicants seek to have set aside
arguing that, the first applicant who received the application late
should not have been cited. The applicant also states that the
Commissioner General of the Zimbabwe Republic Police should have been
cited in the chamber application that resulted in the granting of the
default judgment.
The
first applicant states that the vehicle referred to in the order
belonged to one Farai Auxuilia Chidoori (Chidoori) and not to the
respondent herein. The vehicle in question had been held by the
police as an exhibit in a criminal trial and, due to the above order,
when the trial ended, the vehicle was released to the respondent. The
applicants also argue that, if the default order had not been
granted, the vehicle would not have been surrendered to the
respondent.
The
respondent argued that the citation of first applicant was not fatal
and that the issue cannot be raised now when there was no such
reaction to the chamber application when the first applicant deposed
to opposing papers on 14 November 2013. As for the citation of the
Commissioner General of the Police, the respondent said it was non
consequential since the order had already been complied with.
I
agree with the position taken by the respondent because both
preliminary issues were not fatal to the chamber application. They
were matters that would have been attended to had the applicants
cared to respond to the court papers in time. In any case the first
applicant deposed to an affidavit on 14 November 2013 but never
raised the issues.
With
respect to the merits of this case, I am not persuaded to accept that
the applicants were not in wilful default.
In
paras 6 and 7 of his founding affidavit the first applicant states as
follows:
“6.
On 25 October 2013 the respondent filed the aforementioned chamber
application with this Honourable Court. The said application wrongly
cited the 1st
applicant as Chief Superintendent Moyo and also did not cite the
Commissioner General of the Zimbabwe Republic Police as is required
by the Rules of this Honourable Court.
7.
The 1st
applicant thereafter received the application late and could not file
his opposing papers with the time limits provided for in the rules of
this Honourable Court.”
We
are, in para 7, above, told that the application was received late
but no date is given. I take that to be a deliberate ploy to mislead
the court. When such deliberate withholding of information takes
place, the principle in
Leader Tread Zimbabwe (Pvt) Ltd v
Smith
HH131/03
applies. In that case it was stated as follows:
“It
is trite that if a litigant gives false evidence, his story will be
discarded and the same adverse inferences may be drawn as if he had
not given evidence at all – see Tumahole
Bereg v
R
(1949) AC 253 and South
African Law of Evidence
by LH Hoffmann and D T Zeffert (3 ed) at page 472. If a litigant lies
about a particular incident, the court may infer that there is
something about it which he wishes to hide.”
I
agree with the above, which I also take to apply to deliberate
omissions.
On
her part the respondent states that:
“The
first applicant was served through detective G. Chiwande on 25
October 2013.”
I
have no reason to doubt the averment. Detective G Chiwande has not
been made to deny or confirm the statement.
The
papers before me show that on 14 November 2013 the first applicant
deposed to opposing papers. However, that was already out of the time
and judgment had already been obtained on 21 November 2013. Apart
from the filing of the opposing papers, there is no evidence of
further and immediate engagement with the respondent or her legal
practitioners. That lack of action eventually led to the granting of
the High Court Order in the lower court.
Furthermore,
para 11 of the founding affidavit filed by the first applicant reads
as follows:
“11.
The defence has good prospects of success on the merits. The
respondent had no legal right to claim the motor vehicle as the legal
owner of the motor vehicle, a Toyota Suquoia, is Farai Auxullia
Chindoori.”
Clearly
it is Chindoori who has an interest in this matter. The applicants
can only assist her if so requested. Their interest in this matter
remains a mystery, and as far as I read the papers, is non-existent.
In
the main, the applicants have not advanced a reasonable explanation
for the delay in responding to the chamber application. In any case
the evidence by the applicants shows that the whole court process
should be spear headed by Chindoori, the purported owner of the
vehicle. It is the said Chindoori who should place before the court
clear prospects that she can, with the support of the law, regain the
vehicle from the respondent. The interests of the applicants in the
vehicle fell away when the prosecution in the lower court ended.
There
was never any need for the applicants to file this application and to
that end costs on a higher scale would be justifiable.
In
view of the foregoing, the application ought not to succeed. The
application is dismissed with costs on a higher scale.
National
Prosecuting Authority,
applicants' legal practitioners
Messrs
Musunga & Associates,
respondent's legal practitioners
