This
is an application in terms of Order 9 Rule 63 of the High Court
Rules, 1971 for the setting aside of a judgment given in default of
the applicant in Case No. HC 275/11. The judgment was given on 16
November 2012.
The
application is opposed by the respondent. The background facts may be
summarised as follows:
In
January 2011, the respondent instituted proceedings by way of summons
under Case No. HC275/11 claiming payment of damages for defamation
against the applicant. The applicant entered appearance to defend the
claim and filed a plea. The matter went up to the pre-trial
conference stage. On 22 November 2011 the applicant's defence was
struck out following his default at the pre trial conference. The
matter was then referred to be dealt with as an unopposed matter for
the respondent, as the plaintiff, to prove his damages. Upon becoming
aware of the striking out of his plea the applicant made a chamber
application, under Case No. HC12658/11, for the setting aside of the
order granted in his default at the pre-trial conference and for the
reinstatement of his plea. That application was filed on 20 December
2011. It was dismissed with costs on the same day, 16 November 2012,
and in the same order granted against the applicant for payment of
damages for defamation in the sum of US$10 million. The main case
therefore proceeded as an unopposed matter.
That
is the judgment which the applicant invites this court to rescind in
the instant application.
The
respondent objected to the application on the basis that the matter
is res
judicata.
The objection is premised upon the fact that an earlier application
made on behalf of the applicant for the setting aside of the order
made in default of the applicant at the pre-trial conference was
dismissed with costs.
But
that application related to the order given at the pre-trial
conference.
I
am not prepared to accept that the facts relevant to the instant
application were determined by this court. The instant application
relates to the default of the applicant in relation to the order
which was granted on 16 November 2012. There are facts which may be
unique to the applicant's default on 16 November 2012 which would
not be relevant to his default at the pre trial conference. The
default on the 16th
was consequent upon the rejection of the applicant's application in
HC12658/11. The applicant's legal practitioner was in attendance on
the day that the order for payment of damages was given. Further, the
order dismissing the application for rescission of judgment filed in
HC12658/11 makes no reference to that case number at all. It also
contains no reasons which would enable the court to consider whether
any factual findings were made on the basis of which the defence of
issue estoppel may be sustained. For those reasons, I do not accept
that the matters raised in this application are res
judicata.
I also do not accept that the defence of issue estoppel can be
sustained on the basis of the facts of this matter.
Order
9 Rule 63 provides as follows:
“(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 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.”
The
application in
casu
was
instituted on 23 November 2012, some seven days after the default
judgment was granted. It was therefore made timeously in terms of
sub-rule (1). What must be considered, in my view, is whether “good
and sufficient cause” has been established to trigger the exercise
by this court of its discretion in favour of the applicant.
The
expression “good and sufficient cause” bears no precise
definition. The approach of the courts, which has stood the test of
time, is that in considering whether good and sufficient cause has
been established, in the context of rescission of a default judgment,
the court will take into account the following factors:
(a)
The reasonableness of the applicant's explanation for the default;
(b)
The bona
fides
of
the application to rescind the default judgment; and
(c)
The bona
fides
of
the defence on the merits of the case and whether that defence
carries some prospect of success.
The
above factors are considered not only individually but in conjunction
with one another and with the application as a whole. See Stockil
v Griffiths
1992
(1) ZLR 172 (S)…,.; Mdokwani
v Shoniwa
1992
(1) ZLR 269 (S)…,. Put in other words, the court will examine and
weigh the above factors one against the other, and also take into
account all the other circumstances which may be relevant to the
case.
The
court has cautioned against the unnecessary fettering of its
discretion by embracing a rigid approach in the consideration of
whether good and sufficient cause has been established as
contemplated by Rule 63(2). See Dewera's
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd
1998
(1) ZLR 368 (S)…,.; Dewera's
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation
1997
(2) ZLR 47 (H)…,.
The
applicant's explanation for his default is that he was not aware of
the date of the set down. The Notice of Set Down was not served upon
him. It was served at an address in the United Kingdom at which he
did not reside. That address was stated as his last known address in
the notice of renunciation of agency which was filed by his legal
practitioners when they renounced agency.
That
fact does not take away the reasonableness of the explanation for
default, which is that the applicant did not see the Notice of Set
Down and was not, therefore, aware of the date of the pre-trial
conference.
Indeed,
even in cases where service was effected at a party's domicilium
citandi et executandi
the
courts have been prepared to accept as reasonable an explanation
tendered by the party if he did not see the papers. See Stockil
v Griffiths
1992
(1) ZLR 172 (S)…,.
The
applicant acted promptly upon realizing
that his defence had been struck out following his failure to attend
the pre-trial conference. He became aware of the default judgment in
Case No. HC275/11 a day after it had been granted. He instituted the
instant application within seven days of the order being made. His
conduct shows that the application is being made with the bona
fide
intention to protect his interests.
As
regards the merits of the defence, the court must be satisfied that
the applicant has set forth facts which disclose “a defence which,
on the face of it, cannot be rejected out of hand and warrants
investigation”. Mdokwani
v Shoniwa
1992
(1) ZLR 269 (S)…,. The facts alleged and the evidence, if any,
tendered, must show that the defence is being advanced in good faith
and not merely for the purpose of frustrating enforcement of the
judgment. The prospects of success of that defence must be assessed
by reference to those facts and the evidence.
The
applicant states that he did not publish the statements complained of
by the respondent. The respondent relies on reports attributing the
information to the applicant. The question of whether or not the
statements complained of were published by the applicant is a matter
that will require investigation in a trial.
The
statements which are attributed to the applicant are alleged to have
come through the medium of what has come to be referred to as the
“Wikileaks Report”. The authenticity of the source of the
information to the Wikileaks will need to be established in the
trial.
There
is also the issue of the damages awarded.
A
sum of US$10 million for damages for defamation is, on the face of
it, out of the ordinary in this jurisdiction. The awards made in
respect of damages for defamation since the introduction of the
multi-currency system are significantly lower than that figure. See
Makova
v Masvingo Mirror (Pvt) Ltd & Ors
2012
(1) ZLR 503 (H) in which a sum of US$7,000= was awarded as damages
for defamation; Manyange
v Mpofu & Ors
2011
(2) ZLR 87 (H) in which an award of US$6,000= was made; and Nkala
v Sebata & Anor
2009
(2) ZLR 2003 (H) in which a sum of US$2,000= was awarded.
A
full trial will enable the court, in the event that liability is
established, to properly assess the damages due to the respondent
taking into account the factors relevant to such an inquiry. See
Masuku
v Goko & Anor
2006
(2) ZLR 341 (H)…,.; Shamuyarira
v Zimbabwe Newspapers (1980) Ltd & Anor
1994
(1) ZLR 445 (H)…,.
The
principle of finality in litigation is one that this court values. It
must, however, be balanced against the need to do justice between the
parties to litigation.
Taking
into account all the relevant factors, I am convinced that good and
sufficient cause has been established for this court to set aside the
default judgment. The effect of my order is to re-instate the
applicant's defence which was struck out….,.
In
the result, IT IS ORDERED THAT:
1.
The order granted in Case No. HC275/11, in default of the applicant
on 16 November 2012, be and is hereby set aside.
2.
The applicant's plea in Case No. HC275/11 be and is hereby
reinstated and the matter shall proceed to the pre-trial conference
stage in terms of the rules of this court.
