Unopposed
Roll
MAKONI
J:
The
applicant approached this court seeking rescission of default
judgment entered against him in Case No. HC9544/15 on 8 March 2016.
The
background to the matter is that the applicant, as plaintiff, sued
the respondent, then the defendant, in the Magistrates Court. The
particulars of claim were not clear and concise but they referred to
some breach of contract by the respondent a delictual claim based on
the mental suffering that the applicant suffered as a result of the
breach of contract.
The
magistrate granted absolution from the instance at the close of the
applicant, then the plaintiff's case.
The
applicant appealed against the decision in CIV “A” 457/14.
On
the day of the hearing the appeal was dismissed because the applicant
defaulted by not appearing.
The
applicant, in Case No. HC9542/15, applied for rescission of the
default judgment.
Again,
at the hearing of the Case No. HC9542/15 the applicant was in default
and the case was dismissed.
The
applicant now seeks rescission of the judgment in terms of Rule 63 of
the High Court Rules 1971 (Rules).
In
terms of Rule 63 the court may set aside a judgment is there is good
and sufficient cause to do so.
Good
and sufficient cause has been defined in a number of jurisdictions
as:
(i)
A reasonable explanation for the default;
(ii)
Where there is a bona fide defence to the main claim; and
(iii)
where the application for rescission is itself bona fide.
See
Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007
(2) 89 (S).
The
applicant avers that the matter was set down in Court “M”. On the
day of hearing the matters were moved to Court “O”. By the time
he realised that the matters had been moved, and by the time he
managed to get to Court “O” his matter had been dismissed.
The
explanation given by the applicant has not been controverted. It
sounds probable. I will take that that is what transpired. The detail
that he gives regarding the notice that was affixed at the courtroom
door has some ring of truth.
The
next issue is whether the applicant has a bona fide claim in
HC9542/15.
He
is seeking rescission of the judgment through which his appeal was
dismissed.
The
proper procedure would have been for the applicant to apply for
reinstatement of the appeal. The applicant has adopted the wrong
procedure.
His
application thus has no prospects of success and it is likely to be
dismissed.
In
the result, the applicant has not satisfied the requirement that he
show good and sufficient cause to have the default judgment
rescinded.
Before
concluding the matter I feel compelled to comment on the applicant's
papers.
From
the analysis I did above, one can tell that it is a very simple
matter. But I had to plough through a 100 paged record with endless
repetitions and unnecessary material to come up with the judgement.
The
bulk of what is contained in the record is irrelevant and
incomprehensible.
Pleadings
should be concise and clear.
In
Meikles Limited Zimbabwe v Stock Exchange HH66/16 in dealing with
pleadings which were not concise I quoted with approval Fungai Nhau v
Memory Kipe & Anor HH73/15 where he had this to say:
“By
definition, pleadings must be concise and to the point. They must
identify the branch of the law under which the claim or defence to it
is made and should not contain evidence. Pleadings which are long
winding and argumentative should not find their way to these courts.
It is a serious dereliction of duty for legal practitioners to
continue, presenting such offensive pleadings when they have the aid
of literature guiding the drafting pleadings.
I
associate myself fully with the sentiments of MAKARAU JP (as she then
was) in Chifamba v Mutasa & Ors HH16/08 (unreported) that:
'Legal
practitioners are urged to read on the law before putting pen to
paper to draft pleadings in any matter is that what they plead is
what the law requires their clients to prove to sustain the remedy
they seek ….. Litigation in the High Court is serious business and
the standard of pleadings in the court must reflect such.'”
Although
the above matters involved legal practitioners, the same can be said
of self-actors.
The
question then is whether the court and other litigants should be
subjected to the agony of reading through such process and be
expected to come up with a sound judgment or a meaningful response to
such processes.
The
authors Herbstein and Van Winsen. The Civil Practice of the High
Courts in South Africa 5ed p1519 state the following:
“The
High Court possess an inherent jurisdiction to prevent vexatious
litigation as being an abuse of its own process.”
They
go on to explain that such power is one which must be exercised with
very great caution and only in a clear case as the courts of law are
open to all.
In
De Wet and Ors v Western Bank Ltd 1977 (4) SA 770 T at 780 H-781 A
the court held:
“A
court obviously has inherent power to control the procedure and
proceedings in its court. This is to facilitate the work of the
courts and enable litigants to resolve their differences in a speedy
and inexpensive manner as possible ….”
The
proceedings in this matter can safely be described as vexatious.
The
court must be able to protect and control the procedure and its
proceedings to avoid abuse by litigants.
It
is my view that this is the sort of case where a litigant will in
future be required to seek leave before filing and serving other
litigants with his or her process. This would be in a bid to prevent
abuse of its own process and to protect other litigants from being
harassed and being put out of pocket by vexatious litigants.
It
is fortuitous that the respondent in this matter did not oppose the
application.
In
the result I will make the following order:
1.
The application is dismissed.
2.
The applicant is required to seek leave of this court before he can
issue any process out of this court.
3.
No order as to costs.
