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is that default judgment which the applicant seeks to have rescinded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 two (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.
Counsel
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,
counsel for the first respondent
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 two (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.
Counsel 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)…, 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
SC16-86
(not yet reported); Roland
and Anor v Donnell
1986
(2) ZLR 216 (S) at 226 E-H; Songore
v Olivine Industries (Pvt) Ltd
1988 (2) ZLR 210 (S) at 211 C-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
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 respond to the
accusations levelled against him.
I
agree with counsel for the first respondent, 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…, 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
HH03-10 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.
Counsel
for the first respondent
referred
me to the case of Ashanti
Goldfields Zimbabwe Ltd v Clement Kovi
SC07-09 (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…, 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…, 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
1992 (1) ZLR 172 (S), 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.
