MUREMBA
J:
This
is an application for rescission of a default judgment where the
applicant prays for relief in the following terms:
“It
is ordered that:
1.
The application be and is hereby granted.
2.
The apparent delay in bringing an application for rescission of
judgment in terms of the rules shall be condoned.
3.
Default judgment granted by this court on 24 May 2017 in Case No.
HC1863/17 be and is hereby rescinded.
4.
The respondent and its legal practitioners de bonis
propris
shall jointly and severally the one paying the other to be absolved
pay the costs of this application on a legal practitioner and client
scale.”
The
background to this matter can be aptly summarized as follows.
The
applicant and a company called Kelor Investments (Pvt) Ltd entered
into an agreement of sale of immovable property. The contract was
brokered by the respondent and the contract stated that the
respondent would be entitled to agent's commission at the rate of
5% of $950,000.00 plus 15% VAT, the said $950,000.00 being the
purchase price at which the immovable property in question was sold.
The
parties to the contract agreed that the respondent was entitled to
agent's commission from the seller and further that in the event of
breach of the contract, the party in breach would be liable for
payment of the said commission to respondent.
It
happened that the applicant being the buyer, after signing the
contract, did not pay the purchase price by the agreed timeline, only
to write a letter to the seller's lawyers saying it was cancelling
the contract.
The
respondent sued for its commission from the applicant in the sum of
US$54,625.00 on the basis that it was the applicant which had
breached the agreement of sale.
The
respondent obtained a default judgment after the applicant failed to
file opposing papers within the prescribed time.
It
is this default judgment granted by this Court on 24 May 2017 in Case
No. HC1863/17 which is now subject of this application for
rescission.
At
the hearing, the respondent having abandoned the point raised in
limine,
that the application was improperly before the court having been
filed out of time, the matter was then argued on merits.
The
basis for the application for rescission of judgment as averred in
the applicant's founding affidavit was that judgment was
fraudulently sought by the respondent before the expiration of the
dies
inducia
and was erroneously granted by this court.
The
applicant also averred has a bona
fide
defence to the respondent's claim.
In
opposition, the respondent denied all that the applicant averred and
proved that it had not obtained the default judgment fraudulently. It
further averred that the applicant had no bona
fide
defence to its claim.
In
the answering affidavit the applicant departed from the allegations
of fraud by the respondent and pleaded mistake on its part in failing
to file its notice of opposition on time. Clearly, there was a
conflict between the averments in the founding affidavit and the
averments in the answering affidavit.
Despite
this apparent conflict the applicant went ahead with the matter as it
was, filed heads of argument and had the matter set down for hearing.
During
the hearing I asked Mr Moyo
to explain and reconcile the apparent conflict in the applicant's
founding affidavit and the answering affidavit.
Mr
Moyo
having realized the rough terrain of the applicant's case moved for
the withdrawal of the application and tendered costs to the
respondent.
Despite
the intention to withdraw the application, Mr Mpofu
for the respondent moved an application for dismissal of the
applicant's application with costs on a higher scale arguing that
the matter had already been argued and as such there was need to
bring finality to litigation in the matter.
The
application for dismissal of the application was opposed by the
applicant.
It
is this oral application for dismissal which is now the subject
matter of this judgment.
The
question is under what circumstances should a court exercise its
discretion in favour of a dismissal of a matter in the face of an
intended withdrawal?
It
is unfortunate that the rules of this court do not deal with the
issue of withdrawal of matters.
In
support of his application for dismissal, Mr Mpofu
drew
the attention of the court to a number of South African cases and one
Zimbabwean constitutional case of Everjoy
Meda v Maxiwell Matsvimbo Sibanda & 2 Others,
CCZ 10/2016 which apparently makes reference to a number of South
African authorities.
In
that case the applicant approached the Constitutional Court alleging
infringement of her right to property. The matter was set down for
hearing. At the hearing the first respondent's counsel who happened
to be the same Mr Mpofu
who
is
representing
the respondent in the current matter took several points in
limine.
When
it was the applicant's counsel, Mr Uriri's
turn to respond he indicated that he had instructions to withdraw the
matter.
MALABA
DCJ (as
he then was) at p4 of the cyclostyled judgment, had this to say;
“Mr
Uriri
for the applicant indicated that he had instructions to withdraw the
matter and sought to apply that the matter be withdrawn. Mr Mpofu
opposed this application arguing that the matter should not be
withdrawn, but that the Court exercises its discretion and dismiss
the matter with costs on a higher scale.
While
parties may at any time before a matter is set down, withdraw a
matter, with a tender of costs the same does not hold true for a
matter that has already been set down for hearing. Once a matter is
set down, withdrawal is not there for the taking.
The
applicable principles are set out in Erasmus 'Superior
Court Practice'
B1-304.
A
person who has instituted proceedings is entitled to withdraw such
proceedings without the other party's concurrence and without leave
of the court at any time before the matter is set down. The
proceedings are those in which there is lis between the parties one
of whom seeks redress or the enforcement of rights against the other.
An application for appropriate relief on the grounds of alleged
violation of a right is such a proceeding.
Once
a matter has been set down for hearing it is not competent for a
party who has instituted such proceedings to withdraw them without
either the consent of all the parties or the leave of the court. In
the absence of such consent or leave, a purported notice of
withdrawal will be invalid. The court has a discretion whether or not
to grant such leave upon application. The question of injustice to
the other parties is germane to the exercise of the court's
discretion. It is, however, not ordinarily the function of the court
to force a person to proceed with an action against his will or to
investigate the reasons for abandoning or wishing to abandon one.
See:
Abramacos
v Abramacos
1953 (4) SA 474 (SR); Pearson
& Hutton NNO v Hitseroth
1967 (3) 591 (E) at 593D, 594H; Protea
Assurance Co Ltd v Gamlase
1971 (1) SA 460 (E) at 465G; Huggins
v Ryan NO
1978 (1) SA 216 (R) at 218D; Franco
Vignazia Enterprises (Pty) Ltd v Berry
1983 (2) SA 290 (C) at 295H; Levy
v Levy
1991 (3) SA 614 (A) at 620B; Herbstein
&
Van Winsen
'The
Civil Practice of the High Courts and Supreme Court of Appeal of
South Africa'
(5ed) p750.
From
the above authorities, it is the law that a court, having satisfied
itself that a matter is properly before it, can refuse to grant an
application for withdrawal of the matter.”
This
case summarises what the other authorities say on the same issue. The
case is self–explanatory.
In
casu
the matter was set down for hearing and it was during the hearing and
in the course of making submissions that the applicant's counsel
sought to withdraw the matter.
Clearly,
under the circumstances the applicant needed the consent of the
respondent to withdraw or the leave of the court in the absence of
the consent of the respondent.
In
granting the leave the court exercises its discretion.
The
court can either grant or refuse the application. Where justice
requires that finality in litigation be reached if possible and where
the withdrawal amounts to an abuse of process, the court may decline
leave to withdraw.
In
casu
I am not inclined to grant the leave to withdraw because it is clear
that the applicant now wants to withdraw its application because of
the glaring conflict that is between its founding affidavit and
answering affidavit, which conflict it has always been aware of.
The
applicant became aware that the allegation of fraud it had made in
its founding affidavit was false at the time the respondent filed its
notice of opposition and when the same parties were involved in
separate legal proceedings for stay of execution pending the hearing
of the present application for rescission.
The
applicant could have withdrawn its application at that stage but it
did not.
Instead
it went ahead and filed its answering affidavit now tendering a new
and contrary explanation of mistake on its part. It went ahead and
had heads of argument prepared. In the heads of argument its counsel
even discussed the conflict, but despite that the applicant went
ahead and had the matter set down for hearing. It did not see the
need to withdraw.
In
opposing the withdrawal, Mr Mpofu
submitted
that the applicant was alerted to the falsity of the explanation in
its founding affidavit in good time but it did not take heed. He
further submitted that even in the morning of the hearing date before
the hearing had commenced he asked for a withdrawal of the matter
without consequences, but Mr Moyo
was not forthcoming.
It
was only upon the realisation that the court was taking issue with
the contradiction in its papers during the hearing that the applicant
sought to withdraw.
Allowing
a withdrawal under such circumstances will set a bad precedent as
parties will move to withdraw cases in the middle of arguments each
time they realise that a matter is not going their way.
The
disadvantage of withdrawals is that they do not bring finality to
matters.
After
the matter has been withdrawn the applicant can rectify the perceived
errors and re-lodge the same application thereby inundating the
courts with too many cases. Clearly, this will be an abuse of court
process.
In
light of the foregoing, I will not grant the applicant leave to
withdraw the
application for rescission of the default judgment.
In
opposing the application to withdraw, Mr
Mpofu
for the respondent moved an application for dismissal of the
applicant's application arguing that the matter had already been
argued. The case authorities including the case of Everjoy
Meda v Maxiwell Matsvimbo Sibanda & 2 Others, supra,
do not say that if the court declines the applicant the leave to
withdraw its application then it (the court) should automatically
dismiss the application.
I
believe that after the refusal to withdraw, the matter should be
allowed to proceed to be heard fully to enable the court to give
judgment in the usual manner.
In
the case of A
v B and C
1976 (4) SA 31
at
p33,
GOLDIN J, had this to say;
“An
order dismissing applicant's application can therefore only be
granted by consent (which is not the case in the present case) or
upon
the court giving
judgment
in the usual manner.
(The underlining is mine).Where the Court is to give judgment in the
usual manner implies that the court has to consider the merits of the
case.
The
belated withdrawal cannot deprive the court of its discretion to
proceed with the hearing of the matter.”
In
Everjoy
Meda v Maxiwell Matsvimbo Sibanda & 2 Others supra
it
was held;
“It
is, however, not ordinarily the function of the court to force a
person to proceed with an action against his will
or to investigate the reasons for abandoning or wishing to abandon
one.” (My underlining)
These
authorities show that if a withdrawal is declined, the court will
continue to hear the matter and then make a determination on the
merits.
An
applicant who brings an application for rescission of a default
judgment under Order 9 r63(2) has the onus to show “good and
sufficient cause” for the court to exercise its powers in his
favour. The factors which are normally considered by the court in
deciding whether there is “good and sufficient cause” are;
(a)
The reasonableness of the applicant's explanation for the default;
(b)
The bona
fides
of the application to rescind the judgment; and
(c)
The bona
fides
of the defence on the merits of the case and whether the defence
carries some prospect of success.
In
casu
when Mr
Moyo
indicated that he was seeking to withdraw the matter he had not yet
finished arguing the matter. He was still arguing on the
reasonableness of the applicant's explanation for the default.
On
the other hand Mr Mpofu
had
not yet had the opportunity to argue for the respondent in response.
I
will thus order that the parties fully argue the matter for a
determination on the merits.
Consequently,
it is ordered that:
1.
The application for withdrawal of the application for rescission of
the default judgment be and is hereby dismissed.
2.
The hearing of the application for rescission of the default judgment
shall proceed.
3.
Costs shall be in the cause.
Messrs
Scanlen & Holderness,
applicant's legal practitioners
Messrs
Ushewokunze Law Chambers,
respondent's legal practitioners
