Opposed
Application
MUTEMA
J: Order
7 Rule 50 of the High Court Rules 1971 provides that a defendant who
has failed to enter appearance shall be deemed to be barred.
In
case number HC1508/14 the respondents issued summons against the
applicant on 2 July, 2014 claiming arrear rentals and eviction as a
result of breach of a lease agreement entered into by the parties.
The
summons was served at the applicant's domicilium
citandi et executandi
number 5 Luton Street, Belmont, Bulawayo on 4 July 2014 by affixing
it thereat on the door after unsuccessful diligent search.
The
dies
induciae
expired on 18 July, 2014.
On
17 July, 2014 the respondents legal practitioners, out of courtesy,
e-mailed the summons to applicant and also alerted applicant that
they had served the summons at his domicilium
citandi
on 4 July, 2014.
The
applicant did not enter appearance to defend.
On
31 July, 2014 the applicant filed a chamber application for the
upliftment of the automatic bar.
The
respondents opposed that application hence this opposed application.
Now
in an application by a defendant for the removal of a bar from
entering appearance that litigant should set out briefly his/her
defence and the facts upon which he/she relies for that defence so
that the court can form some opinion of its merits.
He
or she must also set out briefly some facts which the court can
scrutinize to gain some idea whether the defence is bona
fide:
see Broadley
N.O.
v Stevenson
1973
(1) SA 585 (R) and the cases cited therein.
This
is the legal position pertaining to an application of this nature.
The
explanation proffered by the applicant for his failure to enter
appearance is contained in paragraphs 6 and 7 of his founding
affidavit. They read:
“6.
I did not see the summons as I had long vacated the premises where
the summons were served and so I could not enter an appearance to
defend within the time limit prescribed in the Rules.
7.
I only got to know of the summons on the 18th
of July, when the respondents legal practitioners sent me a copy
through an e-mail and already the time within which I was supposed to
have entered an appearance to defend had lapsed, which means I am
automatically barred in terms of Order 7 Rule 50 of the High Court
Rules, 1971.”
In
paragraphs 11 and 12 of his Heads of Argument applicant took a swipe
at respondents in these words:
“11…
For the respondents to seek to cling on an (sic)
application of default judgment will be tantamount to snatching of a
judgment.
12.
The respondents legal practitioners appear to be eager to obtain a
default judgment at the slightest opportunity, disregarding the need
for courtesy when dealing with fellow legal practitioners. The
respondents legal practitioners are fully aware of the date when the
applicant came to be aware of the summons, hence there is no need to
oppose the present application except from malice.”
That
applicant chose number 5 Luton Street Belmont, Bulawayo as his
domicilium
is beyond caevil. Clause 24 of the lease agreement signed by the
parties provides:
“24.
Domicilium
and Notices
24.1
The parties choose domicilium
citandi et executandi (“domicilium”)
for the purposes of the giving of any legal notice or the serving of
any process, as follows:
The
Lessors
Room
24, SAVYON LODGE, CNR M. NDLOVU AVE AND ROBERT MUGABE WAY, BULAWAYO
The
Lessee
5
LUTON STREET, BELMONT, BULAWAYO
24.2
Each of the parties shall be entitled from time to time by written
notice to the other, to vary its domicilium
to any other address which is not a post office address.”
It
is trite that the purpose of choosing a domicilium
address for the giving of a notice or service of process is to
relieve the party giving the notice or serving the process, of the
burden of proving actual receipt of the notice or process.
The
manner of service of the summons in
casu
of affixing it on the outer or principal door at applicant's
domicilium
citandi
constitutes good and valid service permissible in terms of Rule 40(b)
of the High Court Rules.
Applicant's
explanation regarding his failure to enter appearance in paragraph 6
of his founding affidavit that he did not see the summons because he
had long vacated his domicilium
is neither here nor there.
As
far as the respondents and the law are concerned, number 5 Luton
Street Belmont, Bulawayo was, on 4 July, 2014, still the correct
address for service of the applicant.
Applicant
very well knew that in terms of clause 24.2 he was obliged to write
to the respondents advising them of his change of domicilium
before, during or after leaving 5 Luton Street.
He
did not so do thereby exhibiting a dearth of diligence regarding
legal issues.
Applicant's
lack of diligence did not end there.
Even
after he got to know of the summons on 18 July, 2014 and that the
summons had been served at his last known address for service on 4
July, 2014 he adopted a lackadaisical approach to the matter.
He
could still have entered appearance on 18 July, 2014 either as a self
actor and engage a legal practitioner thereafter or through one for
by that date the automatic bar was not yet operative.
That
was the last day of the dies
induciae.
Applicant
is not such an unsophisticated individual as not to be unable to
draft an appearance to defend, simple as it is. Very unsophisticated
litigants have managed to enter appearance as self actors in this
court.
In
light of the above inexcusable shortcoming the applicant had neither
a moral nor a legal ground to pour scorn on the respondents or their
legal practitioners using the verbiage he employed in paragraphs 11
and 12 of his Heads of Argument quoted supra.
Such
indecent and intemperate language must be censored and discouraged
especially by legal practitioners whose client's cause looks
doomed.
Regarding
the merits, applicant, in paragraph 8 of his founding affidavit gives
this explanation:
“8.
Further, there are prospects of success on the merits. The amount
being claimed by the respondent is disputed as there was an agreement
between the parties for the reduction of the rentals. For the months
of February and March the rent was reduced from the original
US$2,500,00 to US$1,250,00 but surprisingly in their claim the
respondents are still claiming US$2,500,00 for the above mentioned
months.”
There
are no facts which applicant has set out upon which he relies for the
alleged defence to enable the court to form some opinion of its
merits or bona
fides
as is required by the law.
Clause
26 of the lease agreement provides in clear and unambiguous language
what should happen in the event of any variations to the lease
agreement in these words:
“26.
Whole
Agreement
This
agreement constitutes the whole agreement between the parties and no
variations, alterations or collateral agreements shall be of any
force or effect unless and until recorded in writing in a document
signed by the parties.”
Such
a document satisfying the requirements stipulated in clause 26 above
was not produced neither was there even the slightest allusion to its
existence save applicant's mere allegation that there was an
agreement pertaining to a reduction of rentals for February and
March.
So
where are the prospects of success vaunted by applicant in paragraph
8 of his founding affidavit?
Clearly
applicant has no defence no matter how reluctant the court may be to
reach a decision that would result in giving leeway to a judgment
against a person without him being heard inspite of his protestations
that he has a valid defence.
Again
there was absolutely no plausible reason for the applicant's legal
practitioner Mr Ndlovu
to get overly excited in paragraph 18 of his Heads of Argument
wherein he poured further vitriol upon respondents legal
practitioners by alleging that their conduct is not only unethical
but they should be ordered to pay costs “de
bonis proprisii” (sic).
If
any costs de
bonis propriis
were to be ordered, between the two sets of legal practitioners, it
is Mr Ndlovu
himself who qualifies to be so mulcted, for launching an application
that was hopeless from the outset.
In
the result, the application for the removal of the automatic bar be
and is hereby dismissed with costs.
Mlweli
Ndlovu & Associates,
applicant's legal practitioners
Messrs
Webb, Low & Barry Inc Ben Baron & Partners,
respondents legal practitioners
