The
defendant filed a special plea on 20 October 2008. The following
facts constitute the basis of the special plea.
1.
The respondent (plaintiff in the main matter, hereinafter called
“plaintiff”) issued summons under case number HC190/08 claiming
damages arising from a road traffic accident on 14 January 2008.
2.
Pleadings were exchanged between the parties leading to a convening
of the pre-trial conference before the judge in chambers in terms of
Rule 182 of the High Court Rules, 1971 (“the Rules”).
3.
The pre-trial conference was set down for 22 April 2008 for the
parties to attend with a view to either settle the matter or defining
issues to be referred for trial.
4.
The plaintiff's legal practitioners or his representatives failed
to turn up.
5.
The defendant
made an oral application for the dismissal of the plaintiff's claim
to the judge in chambers and obtained an order dismissing the claim
with costs on the same day.
6.
Thereafter, the plaintiff issued fresh summons based on the same
cause of action claiming the same relief from the same party under
case number HC3349/08. This is the present action.
7.
The
matter has been set down for trial.
The
defendant took exception to a fresh process issued by the plaintiff.
He argues that the plaintiff ought to have applied for rescission of
the default judgment in terms of either Rule 63 or Rule 449 of the
Rules. Without having obtained rescission of the judgment, so the
defendant contends, the plaintiff's claim stands dismissed with
costs. He contends that the plaintiff is barred from instituting
fresh action.
As
I understood it, counsel for the defendant is this; since the claim
was dismissed in terms of Rule 182(11) the plaintiff cannot, without
first obtaining rescission of that judgment, issue fresh process as
the dismissal still stands. The only course of action open to a party
eager to pursue an action so dismissed is to first to seek rescission
in terms of Rule 63 of the Rules.
The
plaintiff disputes this contention.
Counsel
for the plaintiff figured that Rule 63 was permissive. It gave the
plaintiff against whom default judgment was entered two options. The
first option was to seek rescission of that default judgment, and,
after obtaining it, proceed on the same papers. The second option was
to literally abandon those papers and issue fresh ones. So long as
the order for costs has been discharged, according to this argument,
it is open to the plaintiff to commence fresh action since the
dismissal of the action at pre-trial conference stage is akin to
absolution from the instance. This interpretation, argued counsel for
the plaintiff, accords with the tenor of Rules 59, 59A, 60, 61, 62
and 63.
It
seems to me that the defendant's argument should meet with failure
for two reasons.
(a)
First, the defendant expressly abandoned the special plea of res
judicata
notwithstanding the fact that the defendant had expressly couched
that special plea which he had filed with this court on 20 October
2008 as the basis of the special plea. If this was meant to be just a
preliminary objection (which it sounds more like), then the defendant
ought to have sought the dismissal of the plaintiff's case as he
did, but a stay of proceedings till the plaintiff had paid the costs
in terms of the order in HC190/08. See Western
Cape Housing Development Board & Another
v
Parker & Another
2005
(1) SA 462.
(b)
Second, the Rules grant the power to the court to enter judgment or
make such order as it may think fit depending on the circumstances
without hearing evidence. Rules 58, 59, 59A, 60, 61 and 62. It is
said in a judgment obtained in this manner amounts to a default
judgment.
When
the plaintiff had failed to appear in person, or through counsel, for
trial or in obedience to the directive, generally an order for
dismissal of his claim is entered. Such an order dismissing the
plaintiff's claim is, at law, not the judgment for the defendant.
In
Munemo
v
Muswera
1987 (1) ZLR 20 (SC)…,
McNALLY JA put the matter this way;
“…,.
The judgment relied upon was not the judgment for the plaintiff, nor
was it a judgment for the defendant…,. However, the judgment in
1979 was a judgment which read:
'The
plaintiff's claim for ejectment is dismissed with costs.'
It
is well established that such a judgment is in effect one of
absolution from the instance. See Hassan
v
Billiat
SC132-86 (not reported); Bulford
v
Bob
White Service Station (Pvt) Ltd
1972
(2)
RLR
224 (AD);
Makayiseni
v
Musarurgwa
1947
SR 160 at 162.
The
matter is succinctly put by Hoffman & Zeffertt op
cit
at p263 in the following words;
'The
decree of absolution from the instance (or an order dismissing the
plaintiff's claim) is specifically intended to the man the
plaintiff to bring another action if he can find a better evidence to
support his claim. Absolution can never found a cause for action
estoppels.”
The
dismissal of the plaintiff's claim, where it is obtained by
default, is not as drastic an order as it may sound. In my view, this
accords with the rationale of the Rules which is to achieve justice
only after each party has had his or her day in court. To hold
otherwise would, in my view, subject the procedure to mere
technicality without achieving the desired end, which is to do
justice between the parties.
It
is instructive that in terms of Rule 61 the defendant may obtain an
order dismissing the plaintiffs' claims where the plaintiff has
been barred from declaring or making a claim. In terms of Rule 62,
the defendant may also obtain an order absolving him where the
plaintiff makes default of appearance. Both rules use the permissive
“may” not the peremptory “shall” to make provision for the
options open to the party who has complied with the rules. Similarly,
Rule 63 also uses the permissive “may” to confer discretionary
power to the court before which the matter is placed. The court is
not obliged to give judgment for either party hence in practice the
matter is generally dismissed or postponed depending on the force of
the application made by the party appearing before it.
Thus,
where an order such as the one granted on 22 April 2008, is in issue,
it can hardly be said that such an order determined the matter
finally. In my view, the plaintiff correctly opted to issue fresh
summons, as it was entitled to do, rather than seek rescission of the
judgment granted in default.
In
the premises, the preliminary issue raised by the defendant is
dismissed.
