Opposed
Court Application
MOYO
J: This
is an application for condonation of the late filing of an
application for rescission of judgment.
The
parties have been engaged in protracted litigation dating far back as
2006.
The
parties in 2006 entered into a loan agreement. Part of the terms of
the loan agreement were that:
“That
the loanee offers his house being stand 32699 Bulawayo Township of
Bulawayo Township Lands as security”.
Clause
10 of the loan agreement also provides as follows:
“In
the event the loanee breaches any content of this agreement the house
that he has given as security to the loaner shall hold him to this
agreement (sic)
and claim transfer of the pledged stand number 32699 Entumbane area
(above-named)”.
In
this matter the applicant was the loanee and the respondent was the
loaner.
Applicant
did make some payments towards the loan, although it looks like they
were not made timeously. It is also not clear as to whether the loan
was paid up or not.
In
such applications what is central are the following principles:
“It
is well established that, in considering application for condonation,
the court has a discretion to be exercised judicially upon a
consideration of all the facts and that in essence it is a question
of fairness to both sides. In this enquiry relevant considerations
may include the degree of success… (agreements), the importance of
the case, the respondent's interest in the finality of his judgment
and the avoidance of an unnecessary delay in the administration of
justice. The list is not exhaustive. These factors are not
individually decisive but are interrelated and must be weighed one
against the other, thus a slight delay and a good explanation, may
help compensate for prospects of success which are not strong.”
Per
the case of United
Plant Hire (Pvt) Ltd
v Hills
& Ors
1976 (1) SA 717 (A) at 720F–G.
Our
Supreme Court also listed the considerations relevant to the
determination of such an application in the case of K
M Auctions (Pvt) Ltd
vs Adanesh
Samuel & Anor
SC15-12.
In
this case they were listed as:
(i)
the degree of non-compliance.
(ii)
the explanation for it.
(iii)
the importance of the case.
(iv)
the prospects of success.
(v)
the respondent's interest in the finality of the case.
(vi)
the convenience of the court.
(vii)
the avoidance of unnecessary delay in the administration of justice.
Apparently
the delay in this matter has been quite lengthy, initially a default
judgment against applicant was rescinded in 2008, applicant did
nothing, prompting the respondent to seek directions on how to
proceed.
Eventually
default judgment awarding respondent stand 32699 Entumbane Township
was granted on 10 November 2011.
Applicant
states in his founding affidavit that he learnt of the default
judgment in February 2012, when respondent intended to evict him from
the said property. He states that his legal practitioner relocated
and went to Botswana and that he never was aware that the legal
practitioner had relocated and that there were court proceedings
against him. He then approached another firm of lawyers who filed an
urgent application for stay of execution that was eventually
dismissed.
He
says he then had financial problems and could not approach lawyers
for assistance.
He
then approached his current legal practitioners who advised him that
condonation had to be sought in order to file an application for
rescission of judgment.
Applicant
has not gone into much detail as to the specific times he approached
these different firms of lawyers. His explanation lacks information
and is very slippery. He does not volunteer much information on the
delay of more than 2 years counting from February 2012 to October
2014 when this application was filed.
He
tries to blame the departure of his legal practitioner from Zimbabwe
to Botswana.
However,
he had a duty to check on his matter and not wait until when he hears
from the deputy sheriff upon execution of the order. A diligent
litigant does not wait for his lawyer to communicate with him
especially when the lawyer becomes silent, the litigant is duty bound
to enquire from his legal practitioner the status of his case.
In
any event the legal practitioner in question was no longer in the
picture from February 2012 when applicant became aware of the
judgment against him.
In
this regard STEYN CJ in the case of Salajee
& Anor NNO
vs Minister
of Community Development
1065
(2) SA 135 at page 141:
“A
litigant… is not entitled to hand over a matter to his attorneys
and then wash his hands of it. If, as here, the stage is reached
where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by, without so much as
directing any reminder or enquiry to his attorney…”
I
accordingly make a finding that:
Applicant
was negligent in the prosecution of his own case. He has difficulty
explaining the delay. What he has attempted to throw in as an
explanation for the delay does not hold any water.
Having
found that the delay has not been explained to the satisfaction of
the court, I therefore move on to find if there are any other factors
that could find favour in the applicant's situation, for the
enquiry does not end with the reasonableness or otherwise of the
explanation for the delay.
It
goes beyond that.
In
the case of Mahachi
vs
Barclays
Bank of Zimbabwe
SC6-06, it was held that in a case where no acceptable explanation
for non-compliance with the Rules has been given, the applicant must
show very good prospects of success.
In
the case of Melane
v Santana
Insurance Co. Ltd,
1962 (4) SA 531 (A) at 532C–F, it was stated thus:
“In
deciding whether sufficient cause has been shown the basic principle
is that the court has a discretion to be exercised judicially upon a
consideration of all the facts and in essence it is a matter of
fairness to both sides. Among the facts usually relevant are the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily these facts are
interrelated, they are compatible with a true discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation. An attempt to formulate a rule of
thumb would only save to harden the arteries of what should be a
flexible discretion. What is needed is an objective conspectus of all
the facts. Thus
a slight delay and a good explanation may help to compensate for
prospects of success which are not strong or the importance of the
issue may tend to compensate for a long delay. And the respondent's
interest in finality must not be overlooked.”
(my emphasis)
I
now turn to assess the merits.
In
this case, the parties entered into a loan agreement, on the face of
it which strikes as an agreement that has certain terms like clause
10 that may be found to be unlawful.
Clause
10 of the agreement in my view is a pactum
commissorium.
A
pactum
commissorium
is defined in the case of Chimutanda
Motor Spares (Pvt) Ltd
vs Musare
& Anor
1994 ZLR 310 (H) as:
“a
pact by which the parties agree that if the debtor does not within a
certain time release the thing given in pledge by paying the entire
debt, after the lapse of the time fixed, the full property in the
thing will irrevocably pass to the creditor in payment of the debt.”
Willes
Principles of South African Law
8th
Edition at page 345 established that a valid pledge merely confers
the right to retain possession of the thing pledged as security by
the pledgor as long as the debt remains unpaid, it does not confer
the right of ownership. The pledger retains ownership of the pledged
property.
It
would appear that from the afore-stated authorities there is a well
grounded contention, prima
facie,
that the agreement between the parties and the subsequent transfer of
the property to the respondent was in fact premised on an illegality.
There
is also a problem raised by a reading of the 2 letters written by
both applicant's former legal practitioner to respondent's legal
practitioner and the respondent's legal practitioner's response
thereto.
These
are annexure C on page 28 and the unmarked annexure on page 29 of the
bound record.
Annexure
C is a letter written by applicant's former legal practitioner to
respondent's legal practitioner. It is dated 21 March 2007. It
reads as follows:
“Re:
Jabulani Ncube vs Innocent Nyathi
The
above matter refers.
Please
find attached the sum of $630,000.00 (Zim Dollars) being the full and
final payment of ours indebtedness to yours.
We
accordingly await receipt of your notice of withdrawal.”
On
26 March 2007, respondent's legal practitioners responded in the
following manner:
“Re:
Jabulani Ncube & Innocent Nyathi
Your
letter of 21st
instant refers.
We
have receipted your client's payment and wish to quickly indicate
that:
there
is the issue of costs which your client has to settle and these on a
comprise are $370,000,00 + 15% VAT = $425,000,00.
There
is the issue of inflation as discussed by clients which however, is
not part of the summons.
Therefore
if your client pays ours within 7 days of the date of this letter we
shall withdraw the matter. Your client's payment is not full and
final bill (sic).”
It
is important to note that these letters give an impression that the
debt was paid up save for costs.
The
interest referred to in the letter from respondent's lawyers, is by
their own admission not part of the summons.
The
immediate question that arises therefore is, what then was the cause
of the transfer of the house from applicant to respondent when the
debt was seemingly paid up save for costs?
Is
there not a danger that respondent was paid the debt in cash and also
took the immovable property?
Even
if a balance could be found to have been owing on the loan, would it
equate to the appropriation of the immovable property whose value was
not even established for purposes of settlement of the loan?
I
am of the considered view that applicant has a good case on the
merits.
I
am of the considered view that despite the undue delay in seeking to
protect his rights the applicant has nonetheless showed good and
sufficient cause warranting this court to intervene in his favour.
Despite
the applicant's failure to proffer an acceptable explanation for
the delay in noting an application for rescission of judgment, I
would borrow from the words of SMALLBERGER JA in the case of National
University of Lesotho
vs Thabani
LSCA 26-08;
“Rules
are not cast in stone. This court retains a discretion to condone a
breach of its Rules in order to achieve a just result. The attainment
of justice is this court's ultimate aim. Thus it has been said that
rules exist for the court, not the court for the rules. The
discretionary power of this court must, however not be seen as an
encouragement to laxity in the observance of the Rules in the hope
that the court will ultimately be sympathetic. There is a limit to
this court's tolerance.”
The
merits of the applicant's case, in my view, the fact that the
agreement upon which the default judgment was obtained seemingly has
problems at law, the fact that there is prima
facie
evidence that the loan that resulted in the appropriation of
applicant's property, could have been paid up, tilts the scales in
this matter heavily in favour of condonation being granted.
For
at the end of the day justice must be done between man and man.
The
duty of this court is to dispense justice and in a bid to achieve
this goal, the court will endeavour to blend the technicalities of a
case together with the meritorious aspects of the case in the
interests of justice.
On
the other hand respondent's interests in the finality of the case
will not suffer any prejudice if this case is re-opened and this
court looks into the merits of the case so as to achieve justice.
On
the issue of costs, I am of the view that, they should be in the
cause.
I
accordingly make the following order:
1.
That applicant's late noting of an application for rescission of
judgment be and is hereby condoned.
2.
That applicant be and is hereby ordered to file his application for
rescission of judgment in HC1895/11 within 7 days of the handing down
of this judgment.
3.
That the costs be in the cause.
Messrs
Cheda & Partners,
applicant's legal practitioners
Samp
Mlaudzi & Partners,
respondent's legal practitioners
