GOWORA
JA:
THE
FACTS
[1]
On 13 July 2011, under Case No HC6750/11, the appellant caused
summons to be issued out of the High Court against NZ Industrial and
Mining Supplies as defendant to the suit. In the summons he claimed
the following relief:
(a)
A declaration that the parties did enter into a valid agreement for
the harvesting of timber in respect of a portion of an area known as
Glen Forest, Gairezi, Nyanga.
(b)
Delivery of 1120m3
of sawn timber to the plaintiff.
(c)
Alternatively, payment of USD$392,000.00 being the equivalent of
1120m3
of timber at USD$350.00 per cubic metre.
(d)
Payment of USD$4,000.00 being the balance payable in respect of the
agreement.
(e)
Interest on the above amounts at the prescribed rate of interest with
effect from 1 May 2010 to the date of final payment.
(f)
Costs of suit on the scale as between client and legal practitioner.
[2]
The second respondent duly entered appearance to defend the suit. It
was not legally represented and the first respondent, who was its
managing director, signed the papers indicating an intention to
defend the action. He also filed a plea on the merits of the claim.
Thereafter
the parties were summoned to attend a pre-trial conference before a
judge in chambers.
The
first respondent was advised by the presiding judge that he could not
represent the second respondent in the suit as he was not a
registered legal practitioner. It was suggested that he should obtain
the services of a legal practitioner to represent the company. He
undertook to do so.
The
pre-trial conference was postponed sine
die.
[3]
The first respondent engaged one Kaseke to represent the second
respondent in the suit. Subsequent to this, on a date not stated in
the papers, the first respondent's immovable property was attached
in execution. An investigation revealed that the legal practitioner
engaged to represent the second respondent had defaulted when
summoned to appear at a resumed pre-trial conference.
The
appellant had, as a consequence, obtained a default judgment against
the second respondent, and, somehow, the first respondent's name
had been added as a defendant together with that of the second
respondent.
It
transpired that the appellant had filed an amended draft order which
reflected the defendant to the suit as Zambe Nyika/Gwasira NZ
Industrial & Mining Supplies. The record however shows that the
declaration described the defendant, the second respondent herein, as
a company duly registered as such in accordance with the laws of
Zimbabwe.
[4]
The appellant was unable to execute against the writ of execution.
He, therefore, filed an application under Case No HC7244/14 in which
he sought the following relief:
“IT
IS ORDERED AS FOLLOWS:
1.
That the application for a mandament restraining the first respondent
from disposing of or otherwise alienating the immovable property be
and is hereby granted.
2.
That the immovable property known as Stand 13552 Salisbury Township
of Salisbury Township lands held by the first respondent under Deed
of Transfer Number 5750/94 dated 21 September 1994 be and is
hereby declared especially executable.
3.
That the first respondent shall pay costs of suit.”
[5]
The first respondent opposed the application.
In
his opposing papers, he also sought, as a counter-application to the
relief sought by the appellant, to have the default judgment
rescinded.
The
court was of the view that the counter-application for rescission had
not been brought in accordance with the rules of court.
The
first respondent's wife also opposed the application.
She
contended that she had a personal interest in the immovable property
by virtue of her marriage to the first respondent.
[6]
The court a
quo
was disinclined to uphold the opposition and on 28 November 2014 it
granted the order described above in favour of the appellant.
[7]
Consequent to the issuance of this order, on 27 January 2015 a
writ of execution was issued in which the property described above
was placed under attachment at the instance of the appellant. The
record is silent as to the fate of the writ.
[8]
On 29 July 2015, Everjoy Meda, the estranged wife to the first
respondent, filed an application with the Constitutional Court
alleging a violation of her rights in the immovable property arising
from the suit and the writ of attachment in execution.
The
application was dismissed with costs on a higher scale.
The
view of the court was that she should have appealed the judgment of
the High Court instead of bringing a constitutional application when
no constitutional issue fell for determination before the High Court
and the Constitutional Court itself.
[9]
On 22 February 2016, under Case number HC1655/16, Everjoy Meda and
her son filed an application for the rescission of the judgments
granted under Case Numbers HC6750/11 and HC7244/12 respectively, on
the grounds that they were issued in error.
They
approached the court in terms of r449 of the High Court Rules 1971.
On
2 November 2016, the High Court dismissed the application with an
order of costs on the high scale. The court concluded that they had
not shown that they had any legal interest in the validity of the
judgments in question.
[10]
On 10 November 2016, the first respondent filed a chamber application
in terms of r449 for the rescission of the judgments granted under
Case Numbers HC12599/11, and 7244/12 on the premise that they were
judgments granted in error.
PROCEEDINGS
BEFORE THE COURT A
QUO
[11]
Before the court a
quo,
the first respondent contended that the appellant had erroneously
added his name as a party to the suit when in reality he had not been
cited when the summons was issued.
He
argued further that the court a
quo,
labouring under the mistaken apprehension that the first respondent
was a party to the proceedings, had granted a default judgment whose
enforcement was being implemented by the appellant.
He
argued that the appellant had not proferred a meaningful explanation
as to why he had joined the first respondent without due process.
He
concluded that his joinder to the proceedings was in error, which
error should be corrected by the rescission of the two judgments.
[12]
The thrust of the argument by the appellant in opposing the relief
sought in the court a
quo
was that the first respondent had not been diligent in pursuit of his
rights.
In
making this argument the appellant sought reliance on Grantully
(Pvt) Ltd & Anor v UDC Ltd
2000 (1) ZLR 361 (S).
The
argument made was that various applications had been brought to court
by the first respondent and his wife and son. All these applications
had been ill-conceived.
It
was argued that in relation to the application in which the immovable
property was declared especially executable, the first respondent was
present during the proceedings and he could not, therefore, avail
himself of relief under r449.
It
was further contended that the court had dismissed his bid for
rescission and the judgment in question had not been appealed
against.
Thus,
it was contended, the matter was res
iudicata
and could not be reopened through an application under r449.
To
that end, the judgment refusing leave for rescission was extant and
he was disabled from relief under r 449.
[13]
On 26 July 2017 the High Court rendered its decision in the matter.
As
regards the rescission of the judgment under Case Number HC6750/11,
the default judgment, the court observed that:
“In
casu,
it
is not disputed that when the default judgment was granted in
HC12599/11 or HC6750/11 the second respondent was not in attendance.
It had defaulted at the pre-trial conference.
Again
it is not disputed that when the summons was issued in the matter,
the applicant was not a party to the proceedings.
From
nowhere his name was only included for the first time at replication
stage in the replication by the first respondent who was the
plaintiff in the matter.
At
the pre-trial conference when N.Z. Industrial and Mining Supplies did
not attend, a court order with the applicant's names was obtained
by the first respondent.
The
first respondent failed to explain in his opposing papers in the
present matter how the name of N.Z. Industrial and Mining Supplies
metamorphosed to include the name of the applicant.
The
applicant has therefore made a good case for this court to rescind
the default judgment that was granted in HC6750/11 initially
erroneously granted under case number HC12599/11 as it is clear that
it was erroneously sought and granted in the absence of the applicant
and it affects his rights and interests.”
[14]
The court a
quo
also adverted to the question of the delay in bringing the
application under r449.
The
court considered, on the principle set out in Grantully
(supra)
that the delay was inordinate but that, notwithstanding the delay,
the circumstances were such that the first respondent had made out a
good case for the grant of the relief he sought. The court said:
“It
was only after 4 years 8 months of the default judgment having been
granted that the applicant woke up from his slumber and brought this
application. The delay is inordinate. However, in view of the nature
of the error that prompted the making of the application, this is an
exceptional case where I am inclined to grant the rescission despite
the inordinate delay. The error goes to the root of the matter
because judgment ended up being granted against a person who is
different from the one who had been sued.
In
the summons and declaration, the defendant was cited as N.Z.
Industrial and Mining Supplies which is a company. At replication
stage, the first respondent who was the plaintiff simply changed the
name of the defendant to Zambe Nyika/ Gwasira N.Z Industrial &
Mining supplies.
The
name of the defendant was now a combination of the applicant's name
and his company's name.
I
believe the first respondent was taking advantage of the fact that
N.Z. Industrial and Mining Supplies was being represented by the
applicant who is a layperson and not by a legal practitioner.
Upon
N.Z. Industrial and Mining Supplies defaulting court at pre-trial
conference, the first respondent prepared a draft order with the name
of the defendant as Zambe Nyika/ Gwasira N.Z Industrial & Mining
supplies and obtained an order bearing these names.
Such
a defendant who is a combination of an individual and a company is
non-existent.
The
judgment cannot, therefore, be allowed to stand. I will thus grant
the application for rescission in HC6750/11.”
[15]
The court a
quo
was, however, disinclined to grant rescission in respect of the
judgment granted in HC7244/12, which judgment declared the first
respondent's immovable property to be especially executable.
The
court a quo was of the view that the applicant had failed to satisfy
the requirements provided for in r449.
The
court a
quo
found that the first respondent was present at the hearing and had
filed papers in opposition to the application.
On
that premise, the court a
quo
considered that the first respondent was disabled from arguing that
it was a judgment granted in error in his absence. The court a
quo
found that the application fell foul of r449.
I
do not think that to that extent the reasoning of the court a
quo
can be faulted.
ARGUMENTS
ON APPEAL
[16]
The appellant appeared in person.
Prior
to the matter being set down for hearing the appellant had the
benefit of legal representation. Those representing him at the time
had filed extensive heads of argument on his behalf.
He
submitted that he would abide by these heads of argument.
He
maintained that the court a
quo
should not have granted rescission due to the inordinate delay that
preceded the filing of the application for rescission.
[17]
In the heads of argument, the contention made is that the first
respondent had acquiesced to the default judgment in which the court
dismissed the application brought by his wife and son under r449.
It
was contended further that the court a
quo
should have upheld the defence of res
iudicata
raised by the appellant in that the dispute had been determined and
the first respondent had participated fully.
Based
on the agreement executed by the parties, it was contended that there
was no error in the description of the defendant to the default
judgment.
The
appellant made reference to Tiriboyi
v Jani & Anor
2004 (1) ZLR 470 (H).
[18]
Miss Mahere,
who appeared for the first respondent argued as follows.
The
default judgment was granted in error. The appellant's legal
practitioners had themselves acknowledged this error in a letter
addressed to the registrar of the High Court. The letter had attached
to it an amended draft order in which the defendant was a merger of
the company and the first respondent as the defendant to the suit.
[19]
With regard to the immovable property, she contended that the
appellant had fraudulently launched an application to have the
property declared especially executable based on the erroneous order.
As
it pertained to the application brought by the first respondent's
wife and son, it was clear that the application was dismissed on the
premise that the two did not have legal interest in the matter. It
was not decided on the merits. As a consequence, the argument that
the principle of res
iudicata
was applicable to the facts of this appeal was misplaced and should
be discounted by the court.
[20]
As regards the judgment issued under Case Number HC7244/12, it was
her further argument that the judgment was based on a nullity. The
judgment granted in default was granted against a party that did not
exist and a party who was not a litigant to the
lis.
The
setting aside of that judgment affected the status of the later
judgment.
The
latter had its genesis firmly on the first and, once the earlier
judgment was no more, there could be no life breathed into the second
judgment.
She
urged the court to exercise its review powers under the Supreme Court
Act [Chapter
7:13]
and set it aside as being irregular.
ISSUES
FOR DETERMINATION
[21]
The disposition of this appeal hinges on the construction of r449.
The critical questions in that determination are the following:
whether indeed there was an error in the judgment and, secondly what
is the meaning to be ascribed to “absence” in the said rule.
ANALYSIS
OF THE FACTS
[22]
The appellant has never denied that when summons was issued the first
respondent was not cited as a party. He has also not denied that the
first respondent's name was improperly added to the proceedings.
He
cannot say how this happened.
The
first respondent was not joined as a party. The appellant does not
argue that the first respondent was properly joined as a party.
Herbstein
& Van Winsen state:
“In
an application for a default judgment, the impression was created
that a division of ABSA Bank purported in its own right to have
instituted various actions. The court was satisfied that the party
which instituted the actions was ABSA Bank which had
locus
standi,
but was wrongly described in the summons.
As
there was no possibility of any prejudice to the defendants the court
granted the amendments applied for.
In
another case in which there was an incorrect citation of parties, the
court granted an amendment, as it did not involve the substitution of
one legal entity for another but merely corrected an incorrect
description of the original plaintiff.
An
amendment will not, however, be granted when a defendant's name has
been omitted from the summons, or when a summons has been issued in
the name of a plaintiff who was no longer alive at the time of issue.
Where
the named plaintiff is not a legal persona, the summons is invalid.”
[23]
In this case, there was no joinder of the first respondent as a party
to the proceedings nor was there even an application to amend the
citation of the parties to the suit.
There
was an addition of the name of the first respondent which addition
created a non-existent party.
In
L
& G Cantamessa v Reef Plumbers: L & G Cantamessa (Pty) Ltd v
Reef Plumbers:
1935 TPD 56, the court had to consider whether or not a summons can
be amended to include a defendant who was not cited in the original
summons. At pp59-60, TINDALL J stated as follows:
“The
magistrate, in his reasons stated that he allowed the amendment to
the summons under sec. 105 of the Magistrates Court Act; that he
regarded the name of the defendants in which they were sued, viz; L &
G Cantamessa as a mere misnomer, and that the mistake was covered by
sub-sec. 3 of sec 105 of the Magistrates Court Act.
In
my opinion, it is quite plain that, in taking that view, the
magistrate erred.
This
is not a case of a mere misnomer. The effect of the amendment was to
introduce a new defendant into the case. The original defendant, L &
G Cantamessa was either a partnership or two individuals. It would
seem that it was intended to cite L & G Cantamessa as a
partnership because the summons was served only on one of the parties
under Order VI.
In
any event, whether the summons was against a partnership or two
individuals, it is clear that the limited company is an entirely
different persona in law and that it was not merely a matter of a
misnomer. A different persona was introduced into the proceedings,
and in my opinion, that was not permissible under sec. 105.”
And
later at pp60-61:
“…..That
being so, in my opinion, there was no satisfactory answer to the
review that there was a gross irregularity that a defendant who had
not been cited and was not before the court, had been introduced into
the action as the defendant at the conclusion of the case.”
[24]
It seems to me that those remarks apply with equal force to the facts
of the case in the appeal before the court.
The
principle set out above was confirmed in the later case of Greef
v Janet en'Ander
1986
(1) SA 647. The judgment is in Afrikaanse but the headnote reads:
“There
would appear to be no authority for the proposition that a court,
upon application by a plaintiff, can oblige a non-party to a dispute,
without the latter's consent (and by way of an amendment of the
summons), to replace the defendant. If the plaintiff suspects that he
has sued the wrong party, he can either, in appropriate
circumstances, attempt to have the right party joined, or issue
summons anew against him.”
[25]
I respectfully associate myself with that statement.
The
first respondent was never a party, was not joined, and should not
have been added to the process in the manner done in this case.
If
he had been joined he would have been a separate party to the
company.
What
is clear is that the defendant appearing on the order granting
default judgment does not exist. There is no such person.
This
a clear irregularity as found by the court a
quo.
Whether
or not the first respondent participated in subsequent proceedings
does not change the substance of the irregular order issued in
default against him.
In
Tiriboyi
v Jani & Anor (supra),
MAKARAU J (as she then was) said2:
“The
purpose of r449 appears to me to enable the court to revisit its
orders and judgments to correct or set aside its orders and judgments
given in error and where to allow such to stand on the excuse that
the court is functus
officio
would result in an injustice and will destroy the very basis upon
which the justice system rests. It is an exception to the general
rule and must be resorted to only for the purposes of correcting an
injustice that cannot be corrected in any other way.
The
rule goes beyond the ambit of mere formal, technical, and clerical
errors and may include the substance of the order or judgment. (See
Grantully
P/L
2000 (1) ZLR 361 (SC).
Rule
449 is a procedural step to correct an obviously wrong judgment or
order.”
[26]
There can be no doubt in this case that the first respondent's
interests were affected by the judgment granted in default against
him.
There
is no doubt that he was not cited as a party to the suit, was not
served with the summons, and even when his name was added he was not
notified.
The
judgment given fits all the requisites of a judgment granted in the
absence of a party.
When
considering whether or not the first respondent should succeed the
court a
quo
set out the requirements under r449 as being:
“Rule
449(1)(a) reads 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.'
For
relief under r449(1)(a) to be granted the following requirements have
to be met.
(a)
The judgment must have been erroneously sought or granted;
(b)
The judgment must have been granted in the absence of the applicant;
and
(c)
The applicant's rights or interests must be affected by the
judgment.
See
Mashingaidze
v Chipunza & Others
HH688/15.
It
is therefore clear from these requirements that a party can only seek
to rescind a judgment in terms of r449(1)(a) if he was absent when
the judgment he seeks to rescind was granted.
If
the party was present, he cannot seek rescission.”
[27]
In casu,
no attempt was made to bring the first respondent before the court.
He was absent from the proceedings.
The
contention made in the heads of argument that he had acquiesced to
the judgment by participating in the processes launched by his wife
and son cannot sway the court.
The
initial proceedings were marred by serious irregularities in the
manner in which the appellant sought to bring the first respondent
before the court and the first respondent cannot be considered as
having acquiesced to a process that amounts to an irregularity.
[28]
In the circumstances of this case, the appellant cannot be heard to
argue that the court misdirected itself.
The
first respondent was never heard. He was not present.
The
default judgment was not only granted in error it was also granted in
his absence in every respect.
In
my view, the appeal is devoid of merit and must be dismissed.
[29]
The first respondent did not appeal against the dismissal of the
application in respect of the judgment that declared his immovable
property especially executable.
The
reasoning of the judge in the court a
quo
cannot
be faulted in finding that, in relation to the application before the
court, it did not meet the criteria set out in r449 for rescission of
judgments granted in error.
It
seems to me that the rescission of the first judgment necessarily
affects the status of the second judgment. This is because the second
judgment had the first judgment as its genesis, in other words, the
second judgment would not have existed in the absence of the first.
I
am fortified in this view by the dicta
in Naidoo
v Somai 2011
(1) SA 219, at 221G-H wherein LOPES J had this to say:
“If
indeed the facts of that case are on all fours with the facts of this
one, as contended for by Mr Van
Rooyen,
then I am respectfully in disagreement with the conclusion.
Once
it is conceded, as it has been in this case, that the default
judgment falls to be set aside, then the consequences of the default
judgment also fall to be set aside. Those consequences include the
issue of a writ of execution, the writ of ejectment, and the
attachment of the applicant's property and his ejectment from the
premises.”
[30]
I think the above remarks are most apposite to the facts of this
appeal.
In
my view, the existence of the second judgment authorizing attachment
and execution against the immovable property in the absence of the
default judgment constitutes an irregularity. It stands on nothing
and is liable to be set aside in the exercise of the review powers of
this Court under s25(2) of the Supreme Court Act [Chapter
7:13],
which provides:
“PART
V
GENERAL
25
Review powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction, and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction, and authority conferred by subs (1) may be
exercised whenever it comes to the notice of the Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.”
[31]
It was contended by Miss Mahere
on behalf of the first respondent that the orders in HC12599/11 and
6750/11 are invalid as they cite a party who is not a party to the
proceedings.
I
agree with that submission.
The
party against whom judgment was obtained is not the party summoned to
court through the process issued by the appellant.
In
addition to this, the judgment authorizing execution of the first
respondent's property is itself based on a nullity warranting its
setting aside.
DISPOSITION
[32]
The appeal in the main lacks merit as the appellant obtained a
default judgment against a party who was not a litigant in the suit
that the appellant had brought to court. As a consequence, the
default judgment itself is a gross irregularity.
Over
and above the foregoing, the judgments in contention were a nullity.
The
first was obtained against a party who was not cited as a party to
the suit and the second was obtained pursuant to the irregular
judgment.
In
the premises the following order will issue:
IT
IS ORDERED THAT:
1.
The appeal is dismissed with costs.
2.
In the exercise of the powers of the Supreme Court in terms of s25(2)
of the Supreme Court Act [Chapter
7:13],
the judgment of the High Court being HH677/14 under Case Number
HC7244/12 and dated 28 November 2014 be and is hereby set aside.
GUVAVA
JA:
I agree
BHUNU
JA:
I
agree
Chinawa
Law Chambers,
legal
practitioners, for the first respondent
