CHIGUMBA
J:
This
is an application for rescission of judgment in two matters,
HC6627/10, and HC3805/08, brought in terms of Order 49 rr449(1)(a) of
the High Court Rules, 1971.
The
relief sought by the applicant, is for an order in the following
terms:
1.
The judgments obtained by the 1st respondent against the applicant in
case numbers HC3508/08 and HC6627/10 be and are hereby set aside.
2.
The title deeds to stand number 2819 Bluffhill township, Bluffhill
Harare which 1st respondent obtained as a result of an order granted
to him in case number HC3508/08 be and are hereby nullified.
3.
Applicant be and is hereby declared the sole owner of stand 2819
Bluffhill Township of Bluffhill held under Deed of transfer number
004804/98 in his favor.
4.
1st respondent and any person claiming occupation through him from
stand number 2819 Bluffhill Township of Bluffhill be and are hereby
ordered to vacate the property within seven days of the date of
service of this order.
5.
1st respondent pay costs of suit on a legal-practitioner client
scale.
In
the founding affidavit, applicant averred that: he is the lawful
owner of stand 2819 Bluffhill Township of Bluffhill, Harare;
(hereinafter referred to as the Bluffhill stand) in terms of a deed
of Transfer number 004804/98.
On
or about the 9 April 2007, he discovered that there was construction
going on at this property, despite there not having been an agreement
entered into by him, to sell this property to anyone.
On
making inquiry he found out that first respondent was responsible for
the construction, on the basis that he had bought the stand from “an
old man and pensioner Jonas Mushosho of Matepetepa in Mashonaland
Central”.
During
an initial telecommunication with first respondent, he advised him
that he was Jonas Mushosho; but that he had not sold the Bluffhill
stand to anyone. First respondent in turn advised him that he had
already taken transfer of the property, and referred him to his legal
practitioners Messrs Dinha Bonongwe & Partners.
On
his instructions, his legal practitioners wrote to the first
respondent on the 12 April 2007 advising him to cease construction on
the Bluffhill stand, and to vacate within twenty four hours.
He
reported the matter to the police who accompanied him to the stand on
28 April 2007.
On
30 April 2007, the parties met at the Criminal Investigations
Department at Ahmed House in Harare. According to applicant, first
respondent admitted that he did not know him and had never had
dealings with him, and that he had been cheated by a person
impersonating applicant, the real 'Jonas Mushosho'.
Applicant
averred that first respondent voluntarily surrendered the keys to the
property that he had built on the Bluffhill stand.
Detective
Sergeant Rodwell Mwandayi, the Investigating officer in this matter,
deposed to an affidavit on 28 May 2007, in which he confirmed
applicant's version of events.
On
8 May 2007, first respondent applied for, and was granted a
spoliation order in the magistrate's court, under case number
3877/07. He attached to that application, an agreement of sale
entered into by him and Jonas Mushosho, Identity card number
NR63-286395 J18, of house number 37 Matepatepa, Bindura. The
agreement is dated 28 June 2006, and it states that Jonas Mushosho
was the owner of stand 2819 Bluffhill Harare which he sold to the
first respondent for ZW$1,2 billion.
The
agreement was signed and witnessed before legal practitioners.
Attached
to the agreement of sale was an affidavit in which Jonas Mushosho
confirmed that he had sold the stand to the first respondent. The
affidavit was commissioned before the same firm of legal
practitioners. Deed of Transfer number 4804/98 was attached, which
showed that the registered owner of the Bluffhill stand was Jonas
Mushosho, born on 24 November 1958.
On
4 July 2007, under case number HC3878/07, in the High Court,
applicant filed for first respondent's eviction from the Bluffhill
stand, and for a declaration that the agreement of sale relied on by
him, was null and void. Judgment was entered in favor of the
applicant, in default of filing a plea by first respondent.
First
respondent applied for rescission of this judgment, and applicant
admits that he did not oppose this application.
First
respondent then applied for an order compelling applicant to sign
transfer documents to transfer the Bluffhill stand into his name,
under case number HC2775/07.
Applicant
opposed that application.
On
8 February 2008, under case number HC538/08. It was ordered that:
1.
First respondent be interdicted from carrying on further developments
on stand 2819 Bluffhill Harare until the matter was finalized.
2.
Applicant and the Deputy Sheriff stay execution of the default
judgment granted in HC3878/07.
3.
Cases HC2775/07 and HC3878/07 be joined as one action.
The
two matters which had been joined were eventually set down for a
pre-trial conference on 8 April 2010.
Applicant
averred that first respondent's legal practitioners of record at
the time, Messrs Manase & Manase, refused to accept service of
the notice of set down of the pre trial conference (see paragraph 15
of the founding affidavit).
It
would appear, from the letter written to the Law Society by
applicant's legal practitioners, that service of the notice was
attempted to be made at 9;30 am indicating that a pre-trial
conference was set down before JUSTICE HUNGWE at 12:30pm that day.
JUSTICE
HUNGWE made the following order, on 8 April 2008, in case numbers
HC3878/07 and HC2775/07:
1.
Respondent with action in HC2775/07 withdrew its case and tendered
wasted costs on the 26th February 2008.
2.
The Honorable F. CHATUKUTA J's order in case number HC3878/07 is
hereby revived thereby superceding the HONORABLE BHUNU'S order in
case number HC538/08.
IT
IS ORDERED THAT:
(a)
Respondent (Mudimu) and any person claiming occupation through him
from stand 2819 Bluffhill Township Bluffhill Harare be and are hereby
ordered to vacate the property within seven days of the date of this
order.
(b)
The agreements of sale between respondent and one impersonator “Jonas
Mushosho” dated June 23 2006, and June 28 2006, be and are declared
null and void.
(c)
Applicant be and is hereby declared the sole owner of stand number
2819 Bluffhill Township, Bluffhill, Harare, held under Deed of
transfer No 004804/98 in his favor.
(d)
The spoliation order granted in case number 3877/07 be and is hereby
set aside.
(e)
Respondent pays costs of this suit on an attorney-client scale.
Applicant
averred that his attempts to enforce this order were met with stiff
resistance, and that first respondent refused to vacate the premises
on the basis that he had since taken transfer, and now held the
Bluffhill stand under Deed of Transfer number 0005304/09.
First
respondent then applied for rescission of the judgment made by HUNGWE
J, and for stay of execution pending determination of the application
for rescission of judgment. These two applications were filed under
case numbers HC6627/10 and HC6794/10.
Applicant
opposed both applications, and filed a counter application to the
application for rescission of judgment.
On
11 October 2010, MAKONI J issued an order dismissing first
respondent's application in case number HC6794/10, the order to
stay execution.
Applicant
averred that he opposed first respondent's application for
rescission of HUNGWE J's judgment granted in the joined cases
HC3878/07 and 2775/07.
Applicant's
notice of opposition to the application for rescission appears to
have been filed of record on or about 6 October 2010. His counter
application was filed on the same date.
He
counterclaimed for a declaratory order that he is the sole and legal
owner of the Bluffhill stand held under Deed of Transfer 0004804/98,
and for an order that Deed of Transfer 0005304/09 be declared null
and void.
The
application by first respondent to rescind HUNGWE J's order was set
down on the unopposed roll on 1 December 2010, and the following
order was granted unopposed, by BHUNU J:
1.
Default judgment entered against applicant (Mudimu) in the
consolidated case number HC2775/10 be and is hereby rescinded.
2.
Costs of suit shall be borne by the respondent (Mushosho).
Applicant
denied ever having been served with papers in case number HC3508/08,
in which first respondent obtained an order from MAVHANGIRA J, in
default of appearance by applicant, on 24 September 2008, to the
effect that applicant sign all necessary documents to effect transfer
of the Bluffhill stand into first respondent's name within seven
days of the date of that order, or failing which the deputy Sheriff
was authorized to sign the documents on his behalf.
Applicant
averred that he suspects that deed of transfer number 0005304/09 came
into existence that way.
Applicant
contended that first respondent obtained the order in case number
HC3508/08 fraudulently and under unclear circumstances.
Applicant
averred that he was never served with any papers and that had he been
served, he would have vigorously opposed the granting of the order.
Applicant
averred that first respondent never approached him and requested that
he sign transfer documents within seven days of 24 September 2008, as
directed by the order.
Applicant
averred that as at 24 September 2008, when first respondent obtained
the order from MAVHANGIRA J, the consolidated matters under HC538/08
were still pending determination on similar issues.
Applicant
contended further, that the order under HC6627/10, which rescinded
judgment in the consolidated cases determined by HUNGWE J, was
obtained irregularly and in unclear circumstances.
He
contended that his counterclaim was not determined or referred to.
He
reiterated that he was not in default, and that the matter was
erroneously set down on the unopposed roll without his knowledge.
Applicant's
claim is that the orders obtained by the first respondent in
HC3508/08 before MAVHANGIRA J, and HC6627/10 before BHUNU J were
obtained fraudulently and irregularly and ought to be rescinded.
First
respondent, in his opposing affidavit, raised a preliminary point
that the application is without merit and should be dismissed as it
seeks the rescission of a judgment entered against applicant on 25
September 2008 in HC3508/08, four years later, and on 1 December
2010, in HC6627/10, two years later.
The
preliminary point raised is that an applicant has a period of one
month from the date when he becomes aware of a judgment, to apply for
its rescission, and may not do so thereafter unless he applies for
condonation of the late filing first.
First
respondent averred that applicant, in bringing this application is in
breach of Order 9, r63 of the rules of this court.
First
respondent averred that applicant ought to be ordered to pay costs de
bonis propriis, because, his legal practitioners were advised of the
apparent breach of the rules of this court on 3 December 2012, but
have persisted with their application.
Regarding
the merits of the application, first respondent averred that
applicant sold the Bluffhill stand to him on 23 June 2006 through
Messrs Dinha Bonongwe & Partners legal practitioners.
First
respondent averred that applicant received the full purchase price
and tendered a letter dated 24 October 2012 in which Mr. Bonongwe of
Messrs Dinha Bonongwe & Partners confirms that the parties
entered into an agreement of sale in respect of stand 2819 Bluffhill
Harare, and that the sale was perfected.
The
letter states that a Mr. Robert Nyawasha, a paralegal with that firm,
was able to positively identify both parties as being the parties who
entered into the agreement of sale.
Both
parties' identity card numbers were supplied.
First
respondent contended that he was forcibly despoiled of the property
by applicant, and that he was intimidated into handing over the keys
to the property, a cottage that he had constructed and which he was
in occupation of.
First
respondent averred that applicant attempted to serve a notice of set
down of the pre-trial conference before HUNGWE J, a mere thirty
minutes before the set down time, and confirmed that the receptionist
at Messrs Manase and Manase, his legal practitioners of record,
refused to accept service of the notice of set down.
First
respondent averred that applicant produced a fake notice to HUNGWE J,
indicating that first respondent had withdrawn its claim and tendered
wasted costs, at the pre-trial conference, in the absence of the
first respondent, who had not been correctly served with notice of
set down.
First
respondent averred that he applied for rescission of the judgment
handed down by HUNGWE J.
He
confirmed that the title deeds in his name were obtained as a result
of the order granted by MAVHANGIRA J, under HC3508/08.
First
respondent contended that the court in HC3508/08 would not have
granted the order had it not been satisfied that the papers had been
duly served on the applicant, and that he was indeed in default.
He
challenged applicant to state whether a perusal of that record failed
to show that there was adequate proof of service of the process on
him.
First
respondent reiterated that applicant failed to file opposition in
time in both matters, and that he was justified in setting down
HC6627/10 on the unopposed roll for determination.
First
respondent contended that no evidence of error on the part of those
two courts had been alluded to or provided by the applicant.
Applicant
filed an answering affidavit in which he denied that this application
is devoid of merit.
He
contended that his application is not premised on r63, but on
r449(1)(a) of the rules of this court.
According
to applicant an application in terms of r449 is not time specific,
and all that one has to show is that the order sought to be rescinded
was erroneously sought or erroneously obtained, in the absence of the
applicant.
Applicant
contended that first respondent's point in limine ought to be
dismissed and urged the court not to accede to the request for an
order of costs de bonis propiis.
Applicant
contended that Messrs Dinha Bonongwe & Partners participated in
the fraud perpetrated against him by the first respondent, and caused
the illegal transfer of the Bluffhill stand into first respondent's
name.
The
issue that falls for determination is this: is there sufficient
evidence before the court, on the basis of which the court should
grant rescission of the two judgments in case numbers HC3508/08, and
HC6627/10, and if so, should the court be guided by the provisions of
Order 9 r63 or Order 49 r449(1)(a).
Put
simply;
(i)
The first issue to be determined is that of which of the provisions
of the High Court Rules 1971, out of those that provide for
rescission of judgments granted in default of one of the parties, is
best suited to determine the dispute between the parties in this
case.
(ii)
The second issue for determination after that will be whether in the
circumstances of this case, on the evidence before the court,
applicant should be granted the relief that he seeks.
Order
9 r63 provides as follows:
“63.
Court may set aside judgment given in default
(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 sub rule (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.”
Order
49 r449 provides as follows:
“449.
Correction, variation and rescission of judgments and orders
(1)
The court or a judge may, in addition to any other power it or he may
have mero motu or upon the application of any party affected,
correct, rescind, or vary any judgment or order —
(a)
that was erroneously sought or erroneously granted in the absence of
any party affected thereby; or
(b)…
(c)…”
Applicant,
relied on the case of Motor Cycle (Pvt) Ltd v Old Mutual Property
Investments Corporation Ltd HH4/07 @ pp 5-6, where CHATUKUTA J said:
“…
Mr.
Mushonga submitted that the applicant was seeking rescission in terms
of r449 as read together with Order 9 r63.
Firstly,
applicant does not refer to r63 in its pleadings. Rule 63 was first
mentioned in the oral submissions and therefore was not pleaded.
Secondly,
I am not sure whether the two rules can be read together. It is my
view that there are three separate ways in which a judgment in
default of one party may be set aside. This can be done in terms of
r63, or r449(1)(a) or in terms of the common law”.
There
are two noteworthy issues that distinguish Motor Cycle v Old Mutual
supra and the issue under consideration.
(i)
The first is that in Motor Cycle v Old Mutual Supra, it was not in
dispute that a defective notice of entry of appearance to defend had
been filed of record.
In
the matter under consideration, it is not clear what the errors was,
and whether it was an error relating to the pleadings filed, or on
the part of the court in accepting such pleadings.
(ii)
The second distinguishing factor is that in Motor Cycle v Old Mutual,
the alleged error was defined as an error of law and was clearly
spelt out as such in the pleadings.
It
is my view that, in order to qualify for relief under r449(1)(a) a
litigant must show that:
1.
the judgment was erroneously sought or erroneously granted;
2.
the judgment was granted in the absence of the applicant or one of
the parties;
3.
the applicant's rights or interests were affected by the judgment.
See Mutebwa v Mutebwa and Anor 2001 (2) SA 193;
4.
there has been no inordinate delay in applying for rescission of the
judgment.
It
is my view that, in order to qualify for relief under r63, a litigant
must show that:
1.
Judgment was given in the absence of the applicant under these rules
or any other law.
2.
The application was filed of record and set down for hearing within
one calendar month of the date when applicant acquired knowledge of
the judgment.
3.
Condonation of late filing has been sought and obtained where
applicant fails to apply for rescission within one month of the date
of knowledge of the judgment.
4.
There is “good and sufficient cause” for the granting of the
order.
See
Viking Woodwork v Blue Bella Enterprises 1988 (2) ZlR 249 (S) @ 251
B-D; Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp
Ltd 2002 (1) ZLR 514 (S) @ 516 C-E, 518A-B; Sibanda v Ntini 2002 (1)
ZLR 264 (S); Pastor Jameson Moyo & 3 Ors v Reverend Richard John
Sibanda & The Apostolic Faith Mission SC6/10.
5.
The phrase 'good and sufficient cause' has been construed to mean
that the applicant must:
(a)
give a reasonable and acceptable explanation for his/her default;
(b)
prove that the application for rescission is bona fide and not made
with the intention of merely delaying plaintiff's claim; and
(c)
show that he/she has a bona fide defense to plaintiff's claim.
See
Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210).
It
is also my view that, in order to qualify for relief in terms of this
court's common law power to rescind its own judgments a litigant
must show that:
1.
The court' discretion that it is being asked to exercise is broader
than the requirements of both rules 449 and 63.
2.
Whether, having regard to all the circumstances of the case,
including applicant's explanation for the default, this is a proper
case for the grant of the indulgence.
See
Gondo & Anor v Stfrets Merchant Bank Ltd 1997 (1) ZLR 201, and de
Wet & Ors v Western Bank Ltd 1979 (2) SA 1031 @ 1043.
The
question is, what sort of error will suffice to bring an applicant
squarely within the ambit of r449(1)(a).
Is
it an error of fact, an error of law, or both?
An
“error” in common and ordinary parlay, is defined as: a mistake,
fault, blunder, boo-boo, slip, slip-up, inaccuracy and
miscalculation.
The
law is settled, on the issue of if or when and whether this court
ought to grant rescission of its own judgments in terms of rule 449.
In
South Africa, In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466
(E), at 471 F, ERASMUS J said of the almost identically worded
r42(1)(a) of the South African Uniform Rules:
"It
is an abuse of the process of the court to bring such an application
some five years and eight months later. Matters must have some
finality and r449 was not designed to let defendants have a second
bite at the cherry by raising a defense which should have been raised
when the summons was issued."
The
Zimbabwean courts have followed some aspects of the South African
position and rejected others.
In
Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC) the
court held that;
“the
judgment had been granted because at the time of its issue the judge
was unaware of a relevant fact, the provisions of the clause in the
acknowledgment of debt. Had he known of the clause, he would not have
granted the judgment he did. There was ample precedent for the
proposition that a court to which application is made for rescission
is not confined to the record of proceedings in deciding whether a
judgment was erroneously granted. The wording of r449(1)(a) of the
High Court Rules made it clear that a party against whom default
judgment had been granted was entitled to place before the
correcting, varying or rescinding court facts which had not been
before the court granting the default judgment. It was held, further,
that it is not necessary for a party seeking relief under r449 to
show 'good cause'.
If
a court holds that the default judgment was erroneously granted, it
may be corrected, rescinded or varied without further enquiry.
The
court also found that rule 449 is one of the exceptions to the
general principle that once a court has pronounced a final judgment
or order it is functus officio and has itself no authority to
correct, alter or supplement it…
See
Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)
at 306 F-G; Stumbles & Rowe v Mattinson; Mattinson v Stephens &
Ors 1989 (1) ZLR 172 (H) at 174 D-F; Tshivhase Royal Council & C
Anor v Tshivhase & Anor; Tshivhase & Anor v Tshivhase &
Anor 1992 (4) SA 852 (A) at 862 I-J.”
It
is clear that, to qualify for relief under r449(1)(a), mistakes of
fact are not precluded, although it is apparent that the mistakes
referred to are not trivial or petty clerical ones. The mistake must
have been made on the part of the party seeking the judgment in
default, or of the judge who grants it, and the applicant ought to
show that he was prejudiced as a result, or that there was a
miscarriage of justice.
In
other words, despite having a good defense on the merits, judgment
was given against him in error, as a result of such mistake.
The
law is also clear, that any fact which was not brought to the
attention of the court at the time judgment in default was given, may
be placed before the court dealing with an application to rescind
judgment in terms of r449.
The
allegations of fraud made by the applicant were not placed before the
courts that determined the judgments that applicant seeks to have set
aside. Applicant is now entitled, to place evidence of such fraud
before this court.
Disposition
It
is my view that, the differences in the requirements of the two High
Court rules are clear.
Rule
63 has strict time limits which must be adhered to and a litigant who
falls foul of the time limits will not be heard unless condonation is
first sought and obtained.
The
phrase “good and sufficient cause”, is seemingly wide ranging and
all encompassing. The explanation for the default must be reasonable
and/or acceptable. Applicant must show that he has a bona fide
defense to the claim.
On
the other hand, the court's common law discretion to rescind its
own judgments is wide and requires that regard be had to all the
circumstances of the case, including the explanation for, and the
length of the delay in bringing the application, and the prospects of
success of the applicant in the main matter.
In
my view, Rule 63 is more in tandem with this court's common law
discretion to rescind its own judgments. I say so because, when
regard is had to the wording of r 63, that “a party against whom
judgment has been given in default, whether under these rules or
under any other law”, (my underlining for emphasis) it becomes
clear that r63 recognizes the possibility that judgments may be
rescinded under other laws which may not necessarily fall under the
rules of this court, such as the common law discretion that this
court has, to rescind its own judgments.
Rule
449(1)(a) is narrower than rule 63.
It
does not require evidence of “good and sufficient cause”,
although it appears to require some consideration of an applicant's
prospects of success in the main matter. It appears deceptively
simple in its requirement of evidence of an error that caused or
induced a court to grant judgment in default in circumstances where
it would not have ordinarily granted such judgment.
It
is my view that the law is clear on the question of which vehicle a
party seeking rescission of judgment given in default may use.
There
are three vehicles, r63, r449 and common law discretionary power.
Depending
on the circumstances of the case, an applicant is at liberty to elect
to utilize whichever one of those three vehicles best suits the
circumstances of the case. See Gondo & Anor v Syfrets Merchant
Bank Supra.
In
my view, whichever vehicle a litigant chooses, the court will have to
consider the question of length of time that will have elapsed since
the judgment sought to be rescinded was granted.
It
follows that first respondent's preliminary point cannot be upheld.
Applicant
is not duty bound to proceed in terms of r63. However, the court's
scrutiny of the circumstances of this case will show whether
applicant was wise in electing to proceed in terms of r449(1)(a).
Having
disposed of the point in limine, I now turn to the merits of the
matter.
Applicant
contended that its non appearance in both instances was caused by the
first respondent's fraudulent and/or irregular set down of the
matters without notice, despite clear opposition, and despite the
absence of proof of service on him.
Rule
449(1)(a) requires that an applicant demonstrates a simple error,
either in the seeking of the default judgment, or on the part of the
court in granting it.
My
reading of applicant's papers is that applicant does not expressly
state that the error lay in the erroneous seeking of the judgments.
It is implied, in applicant's papers, that the allegation is that
the error lay with the court in being influenced by papers
fraudulently or irregularly filed, being almost “duped” as it
were, into granting the two judgments when it normally or ordinarily
would not have done so.
The
court must decide, having regard to the papers filed of record by the
applicant, whether there was any mistake, or blunder, or
miscalculation, on the part of the court in granting the two
judgments that are sought to be impugned.
Applicant,
correctly in my view sought to rely on the case of Gondo & Anor v
Syfrets Merchant Bank supra, as authority for the proposition that
any type of error will suffice, for purposes of entitling an
applicant to relief under r449(1)(a).
It
would appear, that this case is distinguishable from the one under
consideration because, in that case, judgment had been granted by
consent and its rescission was sought on the basis of an error common
to both parties in terms of r449(1)(c). The error related to a
question of law, the debtors had not opposed the granting of the
judgment because they were not aware of the in duplum rule. It was
held that, even assuming that the parties were laboring under a
common mistake, the applicants would have had to go further and prove
that the amount of the judgment debt had breached the in duplum rule.
In
other words the defence in the main matter must have merit.
I
accept that the sort of error that entitles a litigant to proceed in
terms of r449(1)(a), can be one of fact, or of law, as long as there
is evidence that the court was influenced by such error in granting
the default judgment.
I
also accept that before rescinding the judgment a court must consider
whether the applicant his prospect of success on the merits of the
matter.
In
seeking the rescission of two judgments granted in default of
appearance by himself or his legal practitioner of record, in terms
of r449(1)(a) applicant contended that, in case number HC3508/08
first respondent obtained judgment in default of applicant's
appearance. Applicant averred that the error that occurred was that
judgment was granted despite the fact that “…court papers leading
to the grant of such default judgment were never served on the
applicant…neither did the first respondent serve papers on the
applicant's legal practitioners of record”.
It
is my view, based on the papers filed of record, that Applicant did
not provide any explanation, let alone an acceptable or reasonable
explanation, as to why or how the court which granted the judgment in
default did so in the alleged clear absence of proof of service, on
him or his legal practitioner, or a certificate of service as
required in terms of order 5 r42B(1)(b) of the rules of this court.
It
is my view that the presumption that judgment granted in default was
done so on the basis of adequate proof of service to the court, was
not adequately rebutted in the papers filed of record by the
applicant.
Applicant
contended further, that, in case number HC6627/10, an “absurdity”
occurred, in that, applicant had filed his opposing papers to the
application with the Registrar of this court and served the same on
the first respondent's legal practitioners, who then erroneously
set the matter down for hearing on the unopposed roll as if no
opposition had been filed, and a default judgment was erroneously
granted by the court.
The
notice of opposition filed of record as part of applicant's papers
appears to have been filed of record with the registrar of this court
on 6 October 2010. Judgment in this matter was granted in 2012, a
good two years after the opposing papers were allegedly filed of
record. Yet nowhere on those papers is there a date stamp to show
that the opposing papers were served on first respondent's legal
practitioners of record.
The
presumption that arises is that the notice of opposition may have
been filed of record with the registrar, but there is no proof that
it was served on the first respondent. Not even a certificate of
service by the applicant was filed of record in terms of Order 5
rr42B(1)(b).
In
the absence of service on first respondent, and assuming that some
administrative error was made, and that there was no copy of the
opposing papers in the record, I fail to see the mistake made by the
court in granting judgment in default.
The
judgment of the court was based on the papers before it at the time.
The
court could not have guessed that opposing papers had been filed of
record and somehow fallen out of the record. No explanation at all
has been given as to why those opposing papers were not served on
first respondent. The matter would not have been set down on the
unopposed roll had first respondent been aware that it was opposed.
Applicant
has not rebutted the presumption that opposing papers were not served
on first respondent.
It
is my view that no mistake was alluded to or proved from the papers
filed of record.
There
is evidence that applicant is the one who sold the Bluff-hill stand
to first respondent. There is a witness who can identify him at
Messrs Bonongwe & Partners legal practitioners as being the
seller of the Bluff Hill stand.
He
has not proved fraud on the part of first respondent or Messrs Dinha
Bonongwe & Partners.
In
the absence of proof of fraud, the agreement of sale is valid and
binding on him. There is evidence that the sale was perfected.
In
my view, applicant has no prospects of success in the main matter.
I
find that the applicant has failed, in the circumstances of this
case, on the papers before me, to furnish adequate proof of fraud,
irregularities, or any fault in respect of both judgments sought to
be impugned, on the part of the court in granting each judgment.
None
of the elements of fraud were expressly averred or pleaded. Fraud is
a criminal offence.
It
is not clear whether there was a misrepresentation and if so who made
it to the court. There is no evidence that the court relied on any
misrepresentation when it granted the two judgments.
There
is a bald assertion that there was fraud in the filing of the papers,
there is a vague reference to “irregularities”, and to an
“absurdity”. But there is nothing in the way of proof of these
allegations, not even prima facie evidence.
All
the applicant tells us is that the papers were not in order.
We
are not treated to the courtesy of being told what exactly it is that
was allegedly done, and by whom.
We
are not provided with evidence that indeed the court proceeded to
grant judgment on the unopposed roll when the papers before it
clearly showed that it ought not to have done so. We are not told
that despite proof that there was a notice of opposition duly filed
of record and served on all interested parties, the court erred in
overlooking it and proceeded to grant judgment in default.
There
is simply no evidence of any error on the part of the court in both
instances, whether an error of fact or an error of law.
It
is my view that r449(1)(a) does not apply to the circumstances of
this case, and, to borrow the phrase in Gondo v Syfrets supra;
“…the
judgments in fact reflected the true decision of the court on the
basis of the evidence presented”.
It
is my considered view that applicant is not entitled to the relief
that he seeks.
In
the never-ending quest for justice, litigants are becoming
increasingly indefatigable in approaching the well of justice to
quench their thirst for justice.
Uppermost
in my mind in considering the merits of the application before me,
was a question the answer to which I knew would only be resolved by
resorting to that vague and elastic notion, discretion.
The
parties before me have made numerous applications and counter
applications, in regards to the same piece of property, stand 2819
Bluffhill Township, Harare, over a considerable period of time, from
2006 to date. Surely there comes a time when justice and fairness
demands that both the victor and the vanquished act sensibly and
accept that the matter has been conclusively resolved?
I
can do no better than other esteemed courts have done before me, in
expressing my disquiet at the manner in which proceedings were
conducted between these parties in such a protracted way and over
such a lengthy period, with no light at the end of the tunnel.
In
Grantuilly v UDC supra, the court expressed the view that a judge
would be:
“…justified,
in the exercise of his discretion, in dismissing the application by
reason of the inordinate lapse of time. Rule 449 was a procedural
step, designed to correct expeditiously an obviously wrong judgment
or order (my underlining for emphasis). It is in the interests of
justice that there should be relative certainty and finality as soon
as possible concerning the scope and effect of court orders. It would
be a proper exercise of the court's discretion to rule that, even if
the applicant proved that the rule applied, it could not be heard
after the lapse of a reasonable time. The length of time the
appellants waited in this case, whatever the explanation, was
unreasonable and the application was an abuse of the court's
process”.
The
court has already found that r449(1)(a) is not applicable to the
circumstances of this case.
Even
if r449(a)(a) had been applicable to this case, no reasonable or
acceptable explanation was given as to why applicant waited so long
to apply to rescind these judgments.
For
these reasons, the application is dismissed with costs.
Mudambanuki
& Associates, applicant's legal practitioners
Manase
& Manase, 1st respondent's legal practitioners
