On
14 May 2008 Sarah Mlangeni applied for and was granted an order in
the following terms:
“It
is ordered that:-
1.
The defendant's plea be and is hereby struck off.
2.
Plaintiff be and is hereby granted leave to set this matter down on
the unopposed roll.
3.
Defendant be and is hereby ordered to pay today's costs.”
The
order was granted after Treziah Ndlovu, the applicant in this case,
who was the defendant in the main case, and her legal practitioners
had failed to attend a pre-trial conference after proper service of
the notice to attend the pretrial conference was effected on them.
Following
the above order, Sarah Mlangeni (herein referred to as “Sarah”),
on 26 June 2008, sought and was granted a default judgment in these
terms:
“It
is ordered that:-
Judgment
be and is hereby entered in favour of the plaintiff in the following
terms;
1.
Defendant be and is hereby ordered to deliver to applicant 27 heads
(sic) of cattle together with their progeny failing which the Deputy
Sheriff, Bulawayo be and is hereby authorized and directed to seize
same and deliver to plaintiff.
2.
Defendant to pay the costs.
Alternatively
3.
Judgment
be and is hereby granted to plaintiff against defendant in the sum of
$54 trillion together with costs and interest thereon from the date
of judgment.”
The
genesis of this matter is briefly the following.
On
2 August 2006, Sarah Mlangeni issued summons out of this court
claiming delivery of 27 heads of cattle together with its progeny
which the defendant, Treziah Ndlovu (“Treziah”) had allegedly
registered in her name fraudulently and still had them in her
possession.
Alternatively,
she claimed payment of the sum of $1,620,000,000 Zimbabwe dollars
being the value of the plaintiff's cattle unlawfully appropriated
by the defendant plus interest thereon from January 1999 at the
prescribed rate.
The
defendant had to meet the costs of suit.
In
her declaration, the plaintiff alleged that sometime in the 1940s she
had inherited a number of cattle from her grandmother, Hubayi Gumbo.
She, at some stage, entered into an agreement of loan with Juqu
Ndlovu of the said cattle under the customs and usages of the Ndebele
people known in Sindebele as “amasiso”. She and the late Juqu
Ndlovu enjoyed a cordial relationship and she would from time to time
receive proceeds of sale of cattle from Juqu after instructions to
sell by her. Juqu Ndlovu was the husband of the defendant. She
averred that she kept on visiting Jugu Ndlovu's homestead in order
to see him and her cattle and sold some of them from time to time and
gave him some money thanking him for keeping the cattle for her. The
defendant had always known about the arrangement.
Trouble
started after the death of Juqu Ndlovu in 1987. The plaintiff made
several visits to the defendant's homestead with a view to make new
arrangements about the “amasiso”
cattle but got no joy.
In
the 1990s she went to the defendant's homestead to claim the
“amasiso”
cattle without success. Initially, the defendant told her that her
children were not available, she therefore could not release the
cattle in their absence. She would give the plaintiff a new date on
which to return but each time she returned the defendant would have
one excuse after the other for not releasing the cattle.
While
that was happening the defendant registered the cattle into her own
name in the year 1996. The plaintiff claimed that her cattle were 27
in number when she instituted proceedings in the Customary Law Court
in 1999. The matter has been in the courts ever since and has ended
up in this court.
In
her plea the defendant had this to say.
She
denied that the plaintiff inherited any cattle from Hubayi Gumbo in
the 1940s. She went on to deny that her late husband had entered into
the “amasiso”
agreement with the plaintiff. She further denied that the plaintiff
used to go to sell some cattle from time to time and thanking her
husband by giving him money as a sign of gratitude for keeping the
cattle. She in fact denied being aware of such an arrangement and
averred that the arrangement never existed at any stage.
She
flatly denied ever fraudulently registering the plaintiff's cattle
into her name and averred that the cattle transferred from her
husband's stock card into her name were hers. She accordingly
denied ever possessing the plaintiff's cattle.
It
was her story that if the cattle were brought to her late husband in
the 1940s that was long before she got married to him in 1959. She
was not yet a daughter-in-law of the Juqu Ndlovu family. She
therefore could not be called to account for the cattle which she
never had possession of.
In
her plea, she merely claimed ownership of cattle that were
transferred from her late husband's stock card into her name
without stating how she had acquired them. It was only in her summary
of evidence that she mentioned that the cattle she currently had were
acquired through the sale of grain. This was a material point in her
case as the plaintiff was alleging that those were “amasiso”
cattle. The defendant should have raised that point in her plea.
Mentioning that material point belatedly seems to suggest that it was
an after-thought.
In
her synopsis of evidence, she averred that she would call three
witnesses to support her story, namely, Jibidi Nobert Tshuma, a
nephew of her late husband who, inter alia, would state that all the
cattle in the late Juqu Ndlovu's homestead belonged to that family
and not to the plaintiff. He even had sold one beast to his uncle in
1981. It was in exchange of 6 bags of Nyawuthi.
Another
witness would be Michael Mpande, a close cousin of the late Juqu
Ndlovu. The third witness would be the son of the late Juqu Ndlovu,
one Petros Ndlovu, who would, inter alia, testify that there was bad
blood between the defendant and the plaintiff and her witnesses.
The
plaintiff, on the other hand, stated, in her summary of evidence,
that she would lead evidence from two witnesses to the effect that
the cattle were hers and that Juqu Ndlovu never had cattle of his
own. The witnesses would confirm that the cattle were “amasiso”
cattle and that some of the cattle were sold and proceeds thereof
were given to the plaintiff.
The
first witness would be the brother of the late Juqu Ndlovu, one
Wilson Ndlovu, who is now in her seventies and one Joe Ndlovu, their
nephew.
At
the hearing I granted the application for condonation as I held the
view that the legal practitioners of the defendant had handled the
matter in a very perfunctory fashion.
A
look at the merits suggests to me that an injustice would result if
the parties are not allowed to have their day in court. The default
judgment was granted due to the fault of the legal representatives of
the defendant.
Execution
has been effected and the defendant has been incarcerated for
contempt of court but she still feels that she has a story to tell
the court about the cattle. Twenty-seven (27) animals have been taken
away from her without her side of the story being heard due to the
incompetence of her legal representatives. It seems to me that this
is a proper case where rescission of judgment should be granted.
In
the result, I would issue the following order.
It
is ordered that:-
1.
The default judgment granted to the respondent by this court, against
the applicant, on 26 June 2008, be and is hereby rescinded; and
2.
Respondent shall pay the costs of this application.
