Opposed
Application
MATHONSI
J:
This
is an application for rescission of a judgment of this court entered
in default in favour of the first respondent on 26 June 2008 in terms
of which the eviction of the applicant and those claiming occupation
through him from premises known as 1495 Chiwaridzo Township Bindura
was ordered together with costs of suit.
On
4 February 2008 the first respondent issued summons out of this court
in case number HC642/08 alleging that the house in question had been
leased to the applicant by written lease agreement signed by the
parties on 20 December 2003 which lease could be terminated by the
first respondent in the event that the applicant left employment with
the first respondent.
The
first respondent further averred that the applicant's employment
having been terminated on 31 March 2007, a point which is now hotly
disputed by the applicant who claims having retired from the first
respondent's employ in October 2005, the lease had been terminated.
The first respondent then sought an order for eviction as a
consequence of the applicant's failure to vacate the house
following such termination.
According
to the Deputy Sheriff's (second respondent herein) return of
service filed of record in that matter, the summons was “served on
defendant Enock Govha” on 29 February 2008. On 12 May 2008 the
first respondent submitted an application for default judgment which
was granted on 26 June 2008 aforesaid. In due course a writ of
ejectment was issued and the applicant's eviction was sought.
It
is that default judgment which the applicant seeks to have rescinded
arguing that he was not in wilful default as he was never served with
the summons.
The
applicant has cited the Deputy Sheriff in this application as second
respondent and attacked his return of service as being “false and
misleading” given that on the day the second respondent alleges he
served the summons personally upon him, he (the applicant) was
enjoying the fruits of his retirement in his communal home, he having
relocated there in January 2006 following his retirement either in
October or December 2005. It is not clear when, as he mentions 2
different months in 2005 as his retirement date.
It
is not clear whether this application was served upon the second
respondent as no proof of such service was filed. What is clear
though is that the second respondent has not challenged the serious
allegations made against him regarding service of the summons. His
failure to do so many be due to the fact that he did not have notice
of the application.
The
applicant states in his founding affidavit that he only became aware
of the existence of the default judgment when the second respondent
sought to evict his daughter from the house on 1 November 2008.
He
goes on to say that he should be allowed to contest the eviction
because he bought the house from the first respondent and he paid the
full purchase price.
In
support of that claim, he has filed documents showing that the first
respondent, as employer, offered houses to its employees, including
the applicant. Those documents also show that the housing units were
valued, their values determined and what each employee was expected
to pay as the purchase price assessed and agreed.
The
applicant also submitted his payslip showing that deductions were
made by the first respondent from his salary under the caption “rent
to buy”. The same payslip also reflects the balance after each
deduction of the said “rent to buy” showing that the amount
charged was being progressively reduced. In addition, he filed
receipts issued by the first respondent for further lump sum payments
marked “payment of House 1495”.
For
that reason the applicant is of the firm view that, having paid the
full purchase price for the house, he cannot be evicted from it and
has prospects of success on the merits.
The
first respondent strongly opposes the application on the basis that
the applicant has not shown good and sufficient reasons for the
rescission of the judgment entered in default.
It
has been argued on behalf of the first respondent that, as the owner
of the house with title, it is entitled to vindicate against the
applicant and that there was never an agreement of sale between the
parties involving the house in question.
Mr
Magwaliba
for the first respondent insisted that the relationship between the
parties was governed by the written lease agreement signed in
December 2003, which document the applicant says only recorded the
financial arrangement between the parties for the conveyance to the
first respondent of the purchase price. He vehemently argued that in
terms of that lease agreement the applicant would only be eligible
for consideration to purchase the house at the expiration of 60
months from the date of the signing of that lease agreement.
Regrettably,
Mr Magwaliba,
did not explain what governed the relationship between the parties
before the lease agreement of 29 December 2003 was signed.
He
took the view that as the applicant retired in March 2007 before the
60 month period had expired he was not eligible to purchase the house
and the first respondent was entitled to reclaim it.
There
is a dispute as to when the applicant retired and 2 different letters
purporting to inform him of his resignation have been produced.
The
first respondent produced a letter dated 14 November 2007 recording
the applicant as having resigned on 31 March 2007. Mr Manyerureni
for the applicant insists that letter is a recent fabrication by the
first respondent and has produced a letter written by the applicant's
Human Resources Manager M. Nyamadzawo on 22 June 2005 giving the
applicant notice of his retirement on 31 December 2005.
The
first respondent has not explained the circumstances under which that
letter was written if the applicant had not resigned.
Rule
63 of the High Court of Zimbabwe Rules, 1971 provides:
“(1)
A party against whom judgment has been given in default, whether
under these rules or under any other law, may make a court
application not later than one month after he has had knowledge of
the judgment, for the judgment to be set aside.
(2)
If the court is satisfied on an application in terms of subrule (1)
that there is good and sufficient cause to do so, the court may set
aside the judgment concerned and give leave to the defendant to
defend or to the plaintiff to prosecute his action, on such terms as
to costs and otherwise as the court considers just.”
Subrule
(2) of Rule 63 was interpreted succinctly in the seminal case of
Stockill
v Griffiths
1992 (1) ZLR 172 (S) at 173D-F as follows:
“The
factors which a court will take into account in determining whether
an applicant for rescission has discharged the onus of proving 'good
and sufficient cause' as required to be shown by Rule 63 of the
High Court of Zimbabwe Rules, 1971 are well established. They have
been discussed and applied in many decided cases in this country. See
for instance, Barclays
Bank of Zimbabwe Ltd v C C International (Pvt) Ltd
S-16-86
(not yet reported); Roland
and Anor v Donnell
1986
(2) ZLR 216 (S) at 226E-H. Songore
v Olivine Industries (Pvt) Ltd
1988 (2) ZLR 210 (S) at 211C-F. They are:
(i)
The reasonableness of the applicant's explanation for the default.
(ii)
The bona
fides
of the application to rescind the judgment; and
(iii)
The bona
fides
of the defence on the merits of the case which carries some prospects
of success.
These
factors must be considered not only individually but in conjunction
with one another and with the application as a whole.” (The
underlining is mine).
The
explanation given by the applicant for failure to respond to the
summons is not convincing
especially as it does not appear that the second respondent, who
claims to have served the summons personally on the applicant, has
been served for him to responded to the accusations levelled against
him.
I
agree with Mr Magwaliba,
who relies on the authority of Gundani
v Kanyemba
1988 (1) ZLR 226 (S) that the second respondent's return of service
is prima
facie
proof of service and can only be rebutted by concrete evidence being
placed before the court.
However,
that is not the only factor to be considered in deciding whether the
applicant for rescission of judgment has discharge the onus of
showing “good and sufficient cause” for the rescission.
I
had occasion in Mazuva
v Simbi and Ors
HB155/11, a matter in which an applicant for rescission had not given
a good explanation for failure to act, to comment at p4 of the
cyclostyled judgment that even in such a situation such applicant can
still discharge the onus if all the factors are taken together. In
that matter I stated:
“While
the explanation for the first respondent's failure to respond to
the application in HC905/10 is what MAKARAU JP (as she then was)
referred to in Mwanyisa
v Jumbo & Ors HH3-10
as 'a dog's breakfast' if the factors to be taken into account
in deciding a rescission of judgment application as set out in
Stockill
v Griffiths (supra)
are taken in conjunction with one another, the applicant has
discharged the onus of proving 'good and sufficient cause' for
the rescission of the judgment entered on 1 July 2010. It simply
cannot stand”.
Here
is a company which avails to its employees an opportunity to purchase
houses they are leasing from it. It signs an understanding with the
employees representatives which has, appended to it, a list of
beneficiaries which list sets out the value of each housing unit and
the monthly instalment to be paid by each beneficiary, the applicant
included. It goes on to deduct the equivalent of such instalment from
the applicant's salary clearly stating that it is rent to buy the
house and to also show the balance outstanding after such deduction.
The same instalment is reflected on a written lease agreement.
It
must be understood that in an application of this nature the
applicant is not required to prove his case but merely to show a bona
fide
defence carrying prospects of success.
Mr
Magwaliba
referred
me to the case of Ashanti
Goldfields Zimbabwe Ltd v Clement Kovi
S-7/09 (unreported) in which the Supreme Court ruled that the
agreement signed between the first respondent and its employees on 1
December 2003, which the applicant relies upon, was not a sale. That
issue was considered by MAKARAU JP (as she then was) in:
1.
Antonio
v Ashanti Goldfields Zimbabwe Ltd & Anor;
2.
Mujati
v Ashanti Goldfields Zimbabwe Ltd & Anor;
3.
Ashanti
Goldfields Zimbabwe Ltd v Bonde
2009 (2) ZLR 371 (H); which matters involved the same arguments as in
casu.
She distinguished that case and concluded at 385F-G as follows:
“I
am bound by all decisions of the Supreme Court on points of law.
Where however, the facts that were placed before the Supreme Court
are different from the facts before me, I believe I am at liberty to
interpret those facts in light of the law handed down by the Supreme
Court. The doctrine of stare
decisis
applies to points of law and not to factual disputes”.
I
find myself in agreement with that postulation.
I
am not aware, if that judgment has been challenged but until such
time that it is overturned I am entitled to use it as I am persuaded
by it.
Following
the guidance given in Stockill
v Griffiths (supra),
to consider the factors not only individually but in conjunction with
one another and with the application as a whole, I am of the view
that the applicant has discharged the onus resting on him to show
'good and sufficient cause' for the rescission of the default
judgment.
Justice
demands that the issues raised ought to be interrogated fully in a
trial and that the applicant should not be shut out, as it were, on
the technicality of default judgment.
In
the result, I make the following order; that
1.
The default judgment entered on 26 June 2008 be and is hereby
rescinded.
2.
The applicant should file his notice of appearance to defend in
HC642/08 within ten (10) days of the date of this order.
3.
The costs of this application shall be costs in the main action.
Manyurureni
& Company,
applicant's legal practitioners
Magwaliba
& Kwirira,
1st
respondent's legal practitioners
