1.
PATEL
JA:
This
is an appeal against the judgment of the High Court dismissing, with
costs on a legal practitioner and client scale, an application for
condonation of the failure to apply for the rescission of a default
judgment granted in Case No. HC2424/17 within the time stipulated by
the High Court Rules
1971.
The appellant had simultaneously filed an application for the
rescission of the default judgment. However, this part of the
application was abandoned following strenuous opposition by the
respondents and with the concurrence of the court a
quo.
Background
2.
The respondents issued summons against the appellant on 21 March
2017, in Case No. HC2424/17, for the payment of $98,979.00, together
with interest, in respect of sums allegedly misappropriated by the
appellant from the second respondent. The appellant disputed the
claim and denied owing any monies as alleged.
3.
A pre-trial conference was set down for 9 October 2017 and was
postponed to 26 October 2017. The appellant failed to appear at the
pre-trial conference because he was unaware that he was required to
be present. His legal practitioner also did not appear himself but
was represented by his colleague who was unable to explain the
appellant's absence. A default judgement in favour of the
respondents was entered against the appellant who consequently filed
the dual application for condonation and rescission referred to
above, through a different firm of legal practitioners.
4.
As was noted by the court a
quo,
none of the appellant's erstwhile lawyers had filed any supporting
affidavits explaining their conduct and the appellant's absence
from the pre-trial conference. Furthermore, there was no supporting
affidavit from the employee in that firm of lawyers who was said by
the appellant to have called him belatedly on the day of the
pre-trial conference. In his founding papers, the appellant lamented
the “gross negligence” on the part of his erstwhile lawyers and
the “great disservice” occasioned to him by their conduct.
Judgment
Appealed Against
5.
The court a
quo
found that, in view of the above evidentiary deficiencies, the
appellant's averments remained unsubstantiated. In the court's
view, this was a typical case where the dereliction of professional
duty imputed by the appellant to his legal practitioners of choice
should be held against him personally. The court observed that the
pre-trial conference was postponed and that the appellant must have
been aware of the postponement. There was therefore no reason why he
did not attend the pre-trial conference since any diligent litigant
would attend unless excused from so doing. Additionally, the fact
that the appellant had accepted the wrong legal advice from his
lawyers in noting an appeal against the default judgement did not
justify his subsequent attempt to follow the correct procedure
because, if he were allowed to do so, there would be no finality to
litigation.
6.
As regards the appellant's prospects of success, the learned judge
a
quo
found that the appellant had not shown that the intended application
for rescission had any merit. This was due to the fact that his
defence to the claim instituted by the respondents was not
articulated in his application. As for costs, the learned judge took
the view that the appellant had persisted with the application even
though he knew that it had no merit. Consequently, the respondents
had been unnecessarily put out of pocket for the costs of attendance
by an advocate on two different days when the matter could have been
argued in less than an hour. In the event, the application for
condonation of the failure to timeously apply for rescission of the
default judgment was dismissed with costs on a punitive scale.
Grounds
of Appeal
7.
The grounds of appeal in this matter, as grammatically corrected, are
as follows:
(1)
The court a
quo
erred at law in finding that the appellant did not articulate his
defence to the claim despite such defence being addressed in the
application for condonation and the heads of argument. The failure to
properly deal with prospects of success amounts to a failure to
determine the matter according to law.
(2)
The court a
quo
erred in not making a cumulative assessment on whether all the
requirements had been satisfied as required by law. A court is bound
at law to consider and evaluate all the requirements in conjunction
with each other and not to place too much emphasis on the
requirements individually.
(3)
The court a
quo
grossly misdirected itself in extending the sins of the appellant's
erstwhile legal practitioners to the appellant. The peculiar
circumstances of the matter were that the appellant could not make an
independent assessment or give a considered instruction on the
remedies adopted and, therefore, non-compliance should not have been
extended to him.
(4)
The court grossly erred at law in failing to find that the appellant
had high prospects of success and in failing to exercise its
discretion to grant condonation in the interests of justice.
Criteria
for Condonation of Non-compliance
8.
The factors to be considered in an application for the condonation of
any failure to comply with the rules of court are well-established.
They are amply expounded in several decisions of this Court in which
the salient criteria are identified. They include the following:
(a)
The extent of the delay involved or non-compliance in question.
(b)
The reasonableness of the explanation for the delay or
non-compliance.
(c)
The prospects of success should the application be granted.
(d)
The possible prejudice to the other party.
(e)
The need for finality in litigation.
(f)
The importance of the case.
(g)
The convenience of the court.
(h)
The avoidance of unnecessary delays in the administration of justice.
See
Forestry
Commission v Moyo
1997
(1) ZLR 254 (S);
Maheya
v Independent African Church
07-SC-058; Paul
Gary Friendship v Cargo Carriers Limited & Anor
13-SC-001.
As
was observed in the latter case, the factors listed above are not
exhaustive.
Whether
Defence to Claim was Articulated
9.
In its judgment, the court a
quo
found that “the applicant has not shown that the intended
application for rescission has merits [because] the applicant's
defence to the claim is not articulated in this application”.
Having regard to the contents of the applicant's founding affidavit
a
quo,
the above finding is patently erroneous. In that affidavit, the
appellant not only attacks the order sought to be rescinded but also
categorically articulates his defence to the main claim, to wit, that
the alleged payments of salary were not made by the second respondent
but by a different company run by the first respondent and that,
therefore, the respondents had no cause of action against him. In
their opposing papers, the respondents did not challenge the
appellant's averments as to his defence. What this shows is that
there was a dispute between the parties which required a
determination on the merits. The court a
quo
did not find that the appellant's defence was spurious or
unsustainable. It simply declared that there was no defence
whatsoever.
10.
It is relatively clear, therefore, that the court a
quo
failed to take into account the appellant's averments and
consequently made findings that were entirely inconsistent with the
affidavits filed by the parties. In this regard, it obviously erred
and misdirected itself in the exercise of its discretion on the facts
that were placed before it, by not dealing properly with the
appellant's defence and his prospects of success.
Which
Prospects of Success
11.
An interesting point of law that arose in the course of submissions
by counsel relates to the following question: which prospects of
success must a court assess in considering an application for
condonation of the failure to apply timeously for the rescission of a
default judgment? Is it the prospects of success in the application
for rescission or the prospects of success in the main matter in
which the default judgment was granted? Ms
Mahere,
for the respondents, insists that it is the former only, while Mr
Zhuwarara,
for the appellant, contends that it is either the latter or both the
former and the latter.
12.
In this context, the cases relied upon by both counsel do not afford
any definitive answer to the question raised. In Maheya's
case (supra),
the Court was seized with an application for the reinstatement of an
appeal. Malaba JA (as he then was) held, at pp8-9, that the appellant
could not escape the consequences of the lack of diligence on the
part of her legal practitioners and that this, coupled with the
absence of prospects of success on appeal, justified the dismissal of
the application for reinstatement of the appeal. In Chomurema
& Anor v Telone
14-SC-086,
the applicants sought leave to file a belated appeal against their
dismissal from employment.
13.
Gwaunza JA (as she then was) noted, at p7, that there was nothing to
prevent the Labour Court, in the interests of finality to litigation,
from hearing a composite application for condonation of the late
filing of an application for leave to appeal together with an
application for leave to appeal to the Supreme Court.
14.
Finally, the case of Hove
v Zimphos Ltd & Ors
18-SC-008 concerned an application for condonation of the late noting
of an application for the rescission of a default judgment. Ziyambi
AJA, at pp4-5, found that the applicant had to establish that the
intended application for rescission enjoyed prospects of success. The
learned judge then proceeded to find that it had not been shown that
there were prospects of success on appeal on the grounds of appeal
raised or that there was any impropriety in the manner in which the
Labour Court exercised its discretion to dismiss the application for
condonation. For these combined reasons, the instant application for
condonation was dismissed with costs.
15.
As I have already intimated, these decisions, rendered in chamber
applications, do not decisively answer the question posed. My
tentative and obiter
view is that it is the merits of the main matter and the prospects of
success therein that the court is enjoined to consider in an
application for the condonation of the late noting of an application
for the rescission of a default judgment.
16.
I take this view on the basis that it is necessary for the court
seized with either application to grapple with the merits of the main
matter in order to properly address the gravamen of the real dispute
between the parties involved. Any other approach would tend to
militate against the need for finality in litigation as well as the
interests of justice. In any event, my view on this question is
rendered somewhat superfluous by the fact that the court a
quo
did not address any prospects of success whatsoever in disposing of
the application before it.
Whether
Criteria for Condonation Properly Assessed
17.
The appellant does not dispute that his erstwhile legal practitioners
displayed a flagrant disregard for the rules in the manner in which
they conducted themselves in the main matter. Nevertheless, he avers
that he has a viable and bona
fide
defence to the respondents claim in that matter. In this respect, Ms
Mahere
submits that condonation for non-compliance may be refused even if
the applicant concerned has demonstrated good prospects of success.
This submission is clearly correct as is illustrated by the case of
Kodzwa
v Secretary for Health and Child Welfare & Anor
99-SC-050, at p4, where Sandura JA remarked:
“Thus
in the case of a flagrant breach of the rules, particularly where
there is no acceptable explanation for it, the indulgence of
condonation may be refused, whatever the merits of the appeal may
be.”
18.
While this approach is unassailable, it does not, whether expressly
or impliedly, discount the need to consider cumulatively all of the
factors to be taken into account, and to weigh them in a measured
balancing exercise, before deciding whether or not condonation should
be granted in any given case. See Maheya's
case (supra),
at p5. This position is also aptly captured in Chiweza
& Anor v Mangwana & Ors
17-HH-186,
per
Dube J at p.4, as follows:
“The
court is required to consider the requirements for an application for
condonation cumulatively and weigh them against each other. The
application for condonation is not decided on one exclusive factor.
The existence of strong prospects of success may compensate for any
inadequate explanation given for the delay. Where the applicant
proffers a good explanation for the delay this may serve to
compensate for weak prospects of success in the main matter. Good
prospects of success and a short delay, albeit with an unsatisfactory
explanation, may lead to granting of the application. The court
dealing with the application has a wide discretion which it must
exercise judicially after considering all the circumstances of the
case. The factors are not to be individually considered, but
cumulatively considered with the strong making up for the weak. The
court should endeavor [sic] to be fair to all the parties involved.”
19.
In the instant case, it is evident that the court a
quo
focused solely on the reasons for non-compliance, i.e.
the gross lack of diligence on the part of the appellant's
erstwhile legal practitioners and the vicarious attribution of their
incompetence to the appellant himself. The court failed to assess all
the other relevant aspects of the test for condonation. In
particular, it totally failed to evaluate the appellant's prospects
of success, whether in respect of the intended application for
rescission or in respect of the main matter. The court only
considered the reasonableness of the explanation proffered by the
appellant for the delay in applying for rescission of the default
judgment.
20.
Having found that the appellant's explanation was not reasonable,
the court proceeded without further ado to dismiss his application
for condonation. However, it was imperative for the court to have
assessed all the other salient factors to be considered, in a
cumulative fashion, and then to have weighed them against each other,
before declining to grant the application before it. In failing to do
so, it proceeded upon the wrong principle and consequently gravely
misdirected itself.
Disposition
21.
Given my findings in respect of the first and second grounds of
appeal in favour of the appellant, I do not deem it necessary to
consider the merits of the third and fourth grounds which are
essentially tangential to and dependent upon the first two grounds. A
determination of those grounds is also rendered otiose in light of
the amended relief sought by the appellant at the hearing of this
appeal, viz.
that the matter be remitted to the High Court, before a different
judge, to deal with the matter de
novo.
22.
The decision of the court a
quo
was based on the exercise of its discretion on whether or not to
grant the application for condonation. It is trite that an appellate
court will not readily interfere with the exercise of discretion by a
subordinate court. It should only do so, having regard to the
oft-quoted test enunciated in Barros
& Anor v Chimponda
1999
(1) ZLR 58 (S) at 62–63,
per
Gubbay CJ:
“if
the primary court acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, if it
mistakes the facts, if it does not take into account some relevant
consideration.”
23.
In
casu,
I have earlier adverted to the errors made by the learned judge a
quo
in the exercise of his discretion. Firstly, he mistakenly found that
the appellant had not articulated his defence to the main claim and
thereby failed to take into account the relevant considerations
underlying the appellant's prospects of success. Secondly, he
confined his attention to the reasonableness or otherwise of the
explanation advanced by the appellant for the delay in applying for
rescission of the default judgment.
24.
By not having regard to all the salient factors to be considered in
an application for condonation, in particular, the appellant's
prospects of success in either the intended application for
rescission or in the main matter, and by not balancing those factors
against each other, the learned judge proceeded on the wrong
principle and thereby incurably misdirected himself. Consequently,
the foregoing errors and misdirections in the injudicious exercise of
his discretion operated to vitiate his decision to dismiss the
application for condonation before him. It follows that the decision
cannot be allowed to stand and must be set aside.
25.
As regards the relief to be granted in
casu,
the most appropriate remedy would be to remit the matter to the High
Court to enable a different judge to address and determine the
application for condonation on a proper basis. Furthermore, it also
seems expedient, in order to expedite the finalisation of the matter,
that the application for rescission be adjudicated at the same time
as the application for condonation. In my view, there is nothing in
principle to preclude the composite adjudication of the two
applications together, especially as the considerations to be applied
in the determination of both applications are virtually identical.
26.
As regards the costs of this appeal, there is no compelling reason
why they should not follow the cause.
It
is accordingly ordered that:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside.
3.
The matter is remitted to the High Court, before a different judge:
(a)
to determine the application in Case No. HC1067/18 for condonation of
the late filing of the application for rescission of the default
judgment granted in Case No. HC2424/17 on 26 October 2017;
(b)
and thereafter, in the event that the aforesaid application for
condonation is granted, to determine the aforesaid application for
rescission of the default judgment.
HLATSHWAYO
JA: I agree
MAVANGIRA
JA: I agree
Gill
Godlonton & Gerrans, appellant's legal practitioners
Atherstone
& Cook, respondents legal practitioners
