IN
CHAMBERS
CHITAKUNYE
JA: This
is an opposed chamber application for reinstatement of an appeal in
terms of r70(2) of the Supreme Court Rules 2018.
The
intended appeal is against the whole judgment of the High Court
sitting at Bulawayo handed down on 17 December 2020 in case number
HC1314/20 judgment number HB12-21.
THE
FACTS
On
1 March 2016, the first applicant was placed under Provisional
Judicial Management. The second applicant was appointed as the
Judicial Manager.
On
20 August 2020, the first respondent filed an application for the
discharge of the provisional judicial management order.
The
application was anchored on the argument that 4 years after the
provisional management order was granted, no meaningful progress was
made and the first respondent sought the discharge of the order, as
it believed the order was a sham designed to shield the first
applicant from paying its debts.
The
applicants did not file any papers in opposition to the first
respondent's application, as a consequence thereof the applicants
were automatically barred and the matter was placed on the unopposed
roll.
On
the date of hearing of the application, Mr
Mazibuko
appeared in court as Counsel for the then respondent. He was informed
that the first applicant (as respondent) was barred for failing to
file opposing papers.
Instead
of applying for the upliftment of the bar Counsel contended that he
could still be heard. The judgment of the court a
quo
shows that despite advice on the existence of the bar, counsel
persisted in addressing the court on other issues not related to the
bar.
The
court a
quo
proceeded to grant a default judgment.
Aggrieved
by the decision the applicants noted an appeal to the Supreme Court.
Some
problems arose administratively leading to their appeal being deemed
abandoned for failure to pay costs of preparation of the record. When
they indicated that they had in fact paid the costs, they were
advised to apply for reinstatement of the appeal in terms of the
rules hence this application.
The
application is opposed.
In
its opposition the first respondent raised some points in
limine.
These included;
(i)
firstly, that the intended appeal is incompetent as one cannot appeal
against a default judgment.
(ii)
Secondly, that the deponent to the first applicant's founding
affidavit had no requisite authority as at the time he was appointed
director of the first applicant, the first applicant was under
judicial management and so his appointment was a nullity or tainted
with illegality. The same fate befell the person who signed the
letter of authority as he was also appointed director when first
applicant was under judicial management.
Counsel
for the applicants contended that the judgment was not a default
judgment but was premised on the fact that he appeared in court and
argued his client's case.
ISSUES
FOR DETERMINATION
1.
Whether or not the judgment of the court a
quo
was a default judgment or was a judgment on the merits.
2.
Whether the Deponent to the founding affidavit, Richard Nyatsoka, had
authority to represent the first applicant.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not the judgment of the court a
quo
was a default judgment or was a judgment on the merits
It
is unfortunate that despite the fact that the submissions by the
applicants counsel were not supported by the judgment which he
demanded from the court a
quo
in order to decide on the way forward, he persisted with them.
In
their letter, to the Deputy Registrar of the High Court dated 18
December 2020, the applicants legal practitioners sought clarity on
the nature of the order by the court a
quo.
In it they stated, inter
alia,
that;
“However,
in his granting the Application, the Honourable Judge did not
indicate whether he was granting on the basis that the 1st
respondent was barred or on the basis of the substantive verbal
submissions made by both Counsel as to whether the Application should
be granted.
The
distinction
is important as the 1st
respondent would like to know the correct step to take hereafter as
in the case of the former, an Application for Rescission would have
to be filed whilst in the case of the latter, then an Appeal must be
filed.
May
you therefore as a matter of urgency clarify with his Lordship which
of the two is the position. If it's the latter position, we would
be pleased if his Lordship were to provide his written
reasons.”(emphasis is mine)
It
was clear that the applicants legal practitioners were aware of the
options available.
Surprisingly,
when the judgment was served on them confirming that the judgment was
granted as a default judgment, they persisted with seeking to appeal
against a default judgment instead of filing an application for
rescission as intimated in their letter of 18 December 2020.
Counsel
for the applicants conceded that before the court a
quo,
he
was advised that the first applicant was barred for not filing
opposing papers. He in effect said that despite the extant bar he
was, nevertheless, allowed to make submissions on the merits hence
his contention that it was not a default judgment.
Counsel's
submissions in this regard were without merit.
The
judgment of the court a
quo
at p1 shows that he was clearly advised of the bar.
Instead
of applying for the upliftment of the bar, he took an argumentative
stance.
In
this regard the judgment states that upon being so advised, Counsel
was undeterred; he attacked the validity of the service of the
application and attacked the competence of the application itself.
It
is his persistence in the face of the bar that Counsel contends made
his submissions on the merits acceptable.
A
bar is not uplifted by a litigant's persistence in arguing on the
merits but by a proper application for the upliftment of the bar in
terms of the applicable rules.
In
casu,
applicants counsel chose to ignore the bar to his own peril.
In
the latter part of the judgment, the court a
quo
in fact expressed counsel's conduct as unacceptable especially
after being advised of the bar.
The
judge a
quo
indicated in no uncertain terms that the judgment was a default
judgment. He said:
“Mr
Mazibuko
was not applying for the removal of the bar. He was attacking the
application. In fact I found his conduct somehow unacceptable, that
after I had pointed out to him that first respondent was barred and
that the application was therefore not opposed, he persisted in
argument. After considering a number of factors, I refrained from
calling him to order. I take the view that such conduct is a
deviation from the normal practice, it is inappropriate and
unnecessarily belligerent towards the court, and it serves no useful
purpose in litigation.
In
the result in deciding this application for default judgment, I did
not factor into the equation,
Mr
Mazibuko's
submissions. I concluded that the respondent having been duly barred
in terms of the rules of court, and not having made an application
for the upliftment of the bar, the application was unopposed.”
I
am of the view that the above makes it clear to all and sundry that
the judgment sought to be appealed against is a default judgment.
It
is trite that one cannot appeal against a default judgment. The
procedure to contest a default judgment is to seek its rescission
before the appropriate court.
It
does not matter that one has issues with the judgment. The fact that
a party forced their way into making submissions despite its default
or whilst barred does not turn a default judgment into a judgment on
the merits.
In
Christopher
Zvinavashe v Nobuhle Ndlovu
SC40-06 at p4, GWAUNZA JA (as she then was) aptly stated that:
“Counsel
for the respondent contends correctly that a default judgment can
only be set aside by a successful application for rescission of the
judgment under the rules of the relevant court. The application must
be made by the defaulting party himself, as indicated by the
expression 'purging his default'. It follows that in
casu,
the appellants default remained unpurged even as the learned judge a
quo
considered the merits of the matter and gave reasons for his
judgment.”
See
Ranvali
Trust's Trustees v UDC Limited
1998
(1) ZLR 110; Sibanda
& Others v Nkayi RDC
1991 (1) ZLR 32 (SC); Quoxing
Gong v Mayor Logistics (Pvt) Limited & Another
SC2-17; and Read
v Gardner & Another
SC70-19.
Mr
Mazibuko
conceded that indeed the law is clear that one cannot appeal against
a default judgment.
The
first point in
limine
is upheld with the finding that the judgment is a default judgment.
The purported appeal is therefore a nullity.
This
disposes of the matter and I am of the view that it is unnecessary to
consider the other point in
limine.
COSTS
It
is clear from the papers filed of record and submissions made that
the applicants were alerted of the futility of appealing against a
default judgment but for some reason had persisted.
The
attitude adopted by their counsel in the court a
quo
and in this Court of seeking to deny the clear and indisputable
aspect of default is regrettable. Had counsel accepted wise counsel
in the form of letters from his colleagues he would have by now
adopted the correct procedure to have the default judgment set aside
in a proper application.
The
first respondent has been put to great expense purely because of the
unyielding attitude of the applicants even in the face of clear
evidence that this was a default judgment.
It
is only proper that costs be awarded on the higher scale as requested
by the first respondent.
DISPOSITION
As
the purported appeal is a nullity, it follows that there is nothing
to reinstate. Consequently this purported application for
reinstatement is improper as one cannot seek to reinstate a nullity.
Accordingly,
the matter is hereby struck off the roll with costs on the legal
practitioner and client scale.
Calderwood,
Bryce Hendrie & Partners,
applicants legal practitioners
Mathonsi
Ncube Law Chambers,
1st
respondent's legal practitioners
