Opposed
Court Application
MUTEMA
J: This
is an application for rescission of a default judgment that was
granted against the applicant in case number HC548/14.
The
facts relevant to the resolution of the dispute between the parties
are briefly these:
The
applicant sold a BMW X5 motor vehicle registration number ACX 0734 to
the respondent. Respondent paid a deposit of $12,000,00 and took
possession of the vehicle. He, however, failed to pay the balance of
$12,175,00.
Applicant
then sued for the balance under case number HC2869/13 and obtained
default judgment.
As
a follow up to the default judgment a writ of execution was issued
which resulted in the vehicle in question being attached by the
deputy sheriff.
Respondent
filed an application for rescission of the default judgment under
case number HC548/14.
Applicant's
legal practitioners drew up papers to oppose the application but
before they filed them the parties reached a settlement which
culminated in the signing of an agreement annexure “D” to
applicant's founding affidavit. It was drafted in these words:
“MEMORANDUM
OF AGREEMENT
It
be and is hereby recorded that following a meeting between:
Plaintiff
and her legal practitioner Mr G. Nyoni
Defendant
and his legal practitioner Mr S.S. Mazibisa
It
was agreed without force; duress and undue influence and the parties
conscious of what they were doing, that:
1.The
execution of Defendant's property be stayed only and strictly on
the following conditions:
(a)
That he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th
of May 2014.
(b)
That he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe;
Sheriff's further costs and commission; interest of US$250 and
costs as will be taxed all by the 27th
of May 2014.
2.
The BMW X5 registration number ACX 0734 shall be removed by plaintiff
from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage
charges) and kept at Plaintiff's place or other safe place until
the defendant has fully paid all monies detailed in paragraph (1)
above.
3.
Should the Defendant fail to make any one of the payments mentioned
in (1) above, the plaintiff shall without notice to the Defendant
take the vehicle to a car dealer (sellers of second hand vehicles)
for the car to be sold by private treat at such reasonable price as
will be determined thereat.
4.
This memorandum shall stand as Defendant's mandate to the Plaintiff
and the said car dealer to sell and transfer the car to the would-be
purchaser.
DATED
at BULAWAYO on this the 26 day of MARCH 2014.”
It
was signed by both parties and their respective legal practitioners.
As
a result of the agreement the application and opposition for
rescission under case number HC548/14 could not be pursued.
The
respondent failed to meet the payments stipulated in the agreement of
26 March, 2014 and the vehicle was taken to a dealer but the highest
offer received was US9,000. There followed a series of correspondence
between the parties legal practitioners concerning the value of the
vehicle and whether respondent should pay applicant's costs.
On
3 September, 2014 the current legal practitioners of the respondent
wrote to applicant's legal practitioners are follows:
“RE:
M. NCUBE vs SIPIWO NKOMO
The
above matter refers and to our previous conversation.
Kindly
note that I am preparing a payment plan which is to commence at the
end of September 2014 inclusive of clearing the balance if that
option is still possible then.
In
the meantime, may I please have photocopies of all the filed
pleadings since Messrs Cheda and Partners seem to have lost the whole
file in their moving offices. I have tried to photocopy directly from
the High Court but at a dollar per page it was too stiff hence the
favour that I now seek.”
The
respondent was obliged with the documents he requested which papers
he then used to pursue his application for rescission of judgment in
case number HC548/14 which had been laid in abeyance by the
memorandum of agreement alluded to above, without alerting the
applicant.
On
23 October, 2014 respondent obtained a default judgment with costs
rescinding the judgment applicant had obtained in HC2869/13.
Applicant
says she was shocked to receive a letter on 19 November, 2014 written
to her legal practitioners by respondent's current legal
practitioners to this effect:
“RE:
MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13
The
above matter refers and to the attached court order.
Be
advised that we have since obtained a rescission of judgment of the
order which was in favour of your client. Mr Ncube had clearly wanted
this matter to rest and had resigned himself to losing both the BMW
X5 and the money a sum of US$12,000,00 plus other monies that he had
paid to the sheriff.
What
he then found unfair was the fact that your client wanted to further
make him pay a sum in excess of US$2,000,00 as legal costs when she
had both the car and the money. Clearly that was for all to see, a
gross injustice.
In
light of the rescission of judgment may the status quo before the
judgment be restored, and the matter proceed through normal trial
route and Mr Ncube pays the balance which was owing. Failing which
may your client make arrangements to refund the money paid to her by
Mr Ncube, by the 1st
of December, 2014.
As
yours took back possession of the vehicle which she is using as we
are told by Mr Ncube that he has seen her use the motor vehicle there
is therefore no legal basis for her not to return the money since she
had taken back the motor vehicle and enjoys its use.”
That
letter elicited a response from applicant's legal practitioners in
this vein:
“We
refer to the above matter and to your 19 November 2014 letter. We
are, we should confess, shocked by your stance which borders on lack
of candour and dishonesty. There is a memorandum of agreement that
you signed. Did you disclose it to the court? We are interested in
this because we saw the papers in court and the agreement was not
part thereof. Can we hear from you urgently as we are determined to
take this back to court and to show the court that it was, in our
view at least misled.”
This
letter provoked no response from respondent hence the current
application.
At
the hearing of the application Mr Nkomo
attempted in vain to introduce cases not cited in the respondent's
heads of argument on the basis that he was only briefed by Ndove,
Museta and Partners the day before.
I
disallowed it in terms of Rule 238(2c) because Ndove, Museta and
Partners had been served with the notice of set down on 12 February,
2015 but briefed counsel on the eleventh hour. No explanation for
that was forthcoming.
As
if that was not enough, Mr Nkomo
went on to smuggle into the hearing new issues that appear not
anywhere in the papers in an endeavour to persuade the court to
dismiss the application.
I
will proceed to deal with those technical issues that he raised first
before adverting to those raised in the opposing affidavit and the
heads of argument.
1.
That the application is improperly before the court on account of the
bar effected upon the applicant which bar was still in force
For
this proposition Mr Nkomo
sounded reliance on Rule 233(3) which provides that a respondent who
fails to file notice of opposition and opposing affidavit shall be
barred as read with Rule 83(b) which provides that while a bar is
operative the party barred shall not be permitted to appear in any
subsequent proceedings in the suit except for the purpose of applying
for the removal of the bar.
With
respect, that cannot be a correct exposition of the adjectival law
regarding barring.
The
correct meaning of Rule 83(b) presupposes that the bar would be the
last procedural stage in the matter hence the party barred must apply
for its removal first before being given any right of audience
pertaining to other aspects of the suit.
In
casu
the position is different in that while the applicant was barred for
failure to file notice of opposition and opposing affidavit the
matter proceeded beyond the stage of barring and respondent was
granted a default court order.
It
is this default judgment which applicant is seeking to have rescinded
and applicant cannot be expected to first apply for the removal of
the bar before she can be heard in the application of rescission of
the default judgment.
It
is sometimes jokingly said that it is ironic for the pot to call the
kettle black.
Respondent
is forgetting that in HC2869/13 applicant obtained a default judgment
after the former had been barred for failure to file appearance to
defend but he applied for rescission of that judgment in HC548/14
without first applying for upliftment of bar!
In
the event the point raised holds no water.
2.
That the application is defective for want of stating in terms of
what rule it is being brought and that the draft order does not seek
leave of the court to file opposing papers if rescission is granted
With
respect, I consider the submission trifling.
It
is often said that law, unlike mathematics, is not an exact science.
While this is true for substantive law, it should also equally apply
to procedural law. One cannot be expected to apply procedural law
with mathematical precision to the extent that failure to cite the
relevant rule in terms of which any document is introduced in a suit
becomes fatal to that suit.
Some
legal aspects should not be resolved on technicalities if the facts
do ventilate what the real issue is and that issue is known to be
provided for in the rules.
For
instance paragraph 10 of the founding affidavit does ventilate and
allege that the default judgment complained of was granted in error
and the failure to state that the application is being brought in
terms of Rule 449(1)(a) should not be fatal to the entire
application.
Regarding
the complaint against the draft order surely this is a minor omission
which the court has the power of discretion to put right by simply
inserting a time frame within which the applicant must file her
opposing papers.
3.
That there should be finality to litigation
The
argument raised is that instead of seeking to rescind a rescinded
judgment the applicant should simply let things stand as they are and
concentrate on prosecuting the main suit thereby expediting the time
honoured principle of finality to litigation.
Attractive
as this may sound, it is not without trammel.
The
complaint by the applicant, who was ordered to pay costs in the
default judgment complained of, is that to do so would amount to
blessing respondent's conduct of snatching at a judgment.
Surely
the principle of finality to litigation cannot be embraced when to do
so would wreak injustice along the way.
Mr
Nkomo's
submission on this point cannot be sustained.
In
his heads of argument the respondent raised three issues in opposing
the grant of this application. I herewith deal with them hereunder.
(a)
That the agreement was a compromise
The
argument here is that the agreement was meant to put an end to the
parties intended action, viz
the applicant stay execution and respondent, implicitly not to pursue
rescission. Respondent further argues that if any of the parties
failed to honour the compromise the proceedings would resume.
Both
parties breached the agreement – respondent failed to keep up with
payments while applicant took the car from the dealer and started
using it.
The
situation was who approached the court first to continue the
suspended proceedings and unfortunately for applicant, respondent did
so first and prosecuted his application for rescission.
In
Georgias
and Another
v Standard
Chartered Finance Zimbabwe Limited
1998
(2) ZLR 488 (SC) at 497B–C, GUBBAY CJ (as he then was) defined
compromise in these words:
“Compromise
or transactio is the settlement by agreement of disputed obligations,
or of a law suit the issue of which is uncertain. The parties agree
to regulate their intention in a particular way, each receding from
his previous position and conceding something – either diminishing
his claim or increasing his liability.”
It
is trite law that once a compromise agreement is concluded, it
precludes an action on the original debt, except where the compromise
specifically or by
clear implication provides
that the original claim shall revive in the event of the
non-performance of the terms of the compromise. (emphasis supplied):
Farlam and Hathaway: A
Case Book on the South African Law of Contract
at p334.
In
casu,
assuming that the agreement the parties concluded meets the
requirements of a compromise, respondent argues that it contained a
clear implication “implicitly and explicitly” that the original
claim shall revive in the event of non-performance of the terms of
the compromise.
A
reading of the terms of the agreement does not distil an implication,
let alone a clear one, that respondent would revive his application
for rescission in the event of non-performance by the applicant or by
himself of the terms of the compromise.
In
casu
it is respondent who failed to perform his terms of the compromise by
failing to pay.
I
am yet to come across a compromise agreement with a clause either
express or implicit, giving a party who deliberately fails to perform
his/her terms of the compromise, the leeway to revive the original
claim. If anything it is the applicant who was granted the explicit
right to revive execution of respondent's property vide
the words in paragraph 1 which state:
“The
execution of defendant's property be stayed only and strictly on
the following conditions” which are mentioned in (a) and (b), viz
the payment by him of the amounts stated therein which amounts
respondent failed to pay.
Further,
in the absence of fraud, duress or justus
error,
it is also trite that the purpose of a compromise is to end doubt and
to avoid the inconvenience and risk inherent in resorting to the
methods of resolving disputes. Its effect is the same as res
judicata
on a judgment by consent. It extinguishes ipso
jure
any cause of action that previously may have existed between the
parties unless the right to rely thereon was reserved: Nagar
v Nagar
1982 (2) SA 263 (ZH).
In
the instant case, as already found supra
the agreement reserved no such right to the respondent.
Even
if he had such right he still would be precluded from rushing back to
court without giving due notice of such action to the applicant, who
as will be shown hereunder was justified in wallowing in the belief
that the agreement was still binding.
(b)
That respondent did not withhold information from the court when he
obtained rescission of the default judgment
The
argument by respondent here is that he did not conceal the existence
of the agreement when he applied for and was granted the default
judgment in HC548/14 because that agreement had been “filed with
the Registrar and became part of the record in the main matter which
was cross-referenced to in the application for rescission.”
The
paucity and fallacy of this argument is too glaring to escape
censure.
Firstly,
respondent does not say who had filed it and in which case number of
the three cross-referenced cases.
What
he refers to as the main matter can only be HC2869/13 wherein
applicant is the owner of the litigation and she could not have filed
it therein when the agreement had not yet been concluded.
In
any event it was respondent's duty to bring the existence of that
agreement to the court's attention in HC548/14 by either attaching
a copy or if, as he alleges, a copy had already been filed in one of
cross-referenced cases, to lead the court to the particular
cross-referenced case.
Surely
respondent cannot expect the Honourable Judge to peruse all
cross-referenced files for a document not alluded to in the current
matter, especially in Bulawayo High Court matters where, for some
very amiss and inexplicable reason – except to push volumes by
legal practitioners in order to maximize on fees – those
cross-references are a volume of files in almost all matters civil.
Further,
the argument that respondent concealed the existence of the agreement
in question from the court is corroborated by his prior sly conduct
evinced in annexure “E” to applicant's founding affidavit
namely the letter of 3 September, 2014, quoted above wherein he
fooled applicant by alluring her into believing that he would pay
what was due with effect from end of that month and if he could be
obliged with copies of the filed pleadings to replace his which had
been lost.
He
deliberately hoodwinked applicant because he very well knew that the
purpose for which he required those copies was to go behind
applicant's back and resume the application for rescission which
had already been settled via the agreement which he had breached by
failure to pay.
This
indeed is dishonest and unethical conduct, by a litigant who is a
legal practitioner and an officer of court, of the highest order.
No
wonder applicant expressed shock and disbelief after receiving
respondent's legal practitioners letter of 19 November, 2014,
gleefully waving a copy of the default judgment surreptitiously
obtained on 23 October, 2014.
I
am convinced that had the existence of the agreement been brought to
the attention of KAMOCHA J in HC548/14 and also respondent's letter
of 3 September, 2014, the Honourable Judge would certainly not have
granted that default judgment or at the very least, he would have
directed respondent to give applicant notice that he was going back
to court to resume his application for rescission of judgment.
From
the foregoing findings it is apparent that applicant has shown good
cause for the granting of rescission of the default judgment in case
number HC548/14.
The
third and last point raised by respondent, viz
that applicant's actions of retaining the deposit paid and the
motor vehicle is not worthy considering at this stage.
Those
merits should be ventilated in a different forum if it is found that
the agreement concluded by the parties does not put the dispute
between them to rest.
It
behoves me to utter some strictures regarding the scale of costs in
view of respondent's conduct in
casu.
It
is clear that respondent snatched at a judgment and his conduct was
premised on trickery. Over and above that, respondent had the
effrontery to go to town in attempting to oppose this application and
in the process defending his unethical conduct thereby further
putting applicant out of pocket unnecessarily.
He
surely deserves to be mulcted with costs on the attorney–client
scale.
In
the result I make the following order:
1.
The order of this court erroneously granted on the 23rd
October, 2014 under case number HC548/14 be and is hereby rescinded;
2.
The applicant be and is hereby ordered to file her notice of
opposition and opposing affidavit in case number HC548/14 within five
(5) days of granting of this order;
3.
Respondent is ordered to pay costs of suit at an attorney–client
scale.
Messrs
Moyo & Nyoni,
applicant's legal practitioners
Messrs
Ndove, Museta & Partners,
respondent's legal practitioners
