Opposed
Application
CHITAKUNYE
J:
This
is an application for the rescission of a default judgment entered by
this court against the applicant on the 14th
March 2017 in HC669/16. That order was to the effect that:
“1.
1st
respondent be sentenced to 24 months imprisonment of which 12 months
is suspended for good behaviour, effective 12 months.
2.
1st
respondent to pay costs on attorney and client scale.”
The
application is opposed by the second respondent.
On
the date of the hearing applicant raised a point in
limine
on the locus
standi
of second respondent and the fact that applicant had not been served
personally with the application for contempt of court that led to the
default judgment.
The
second respondent's counsel on the other hand also raised a point
in
limine
alleging that as the applicant had not attached the default judgment
in question, there was no cause of action.
After
counsel had made their respective submissions I indicated that they
must proceed with arguments on the main matter and my decision of the
points in
limine
will be in the main judgement.
I
took the above decision based on the circumstances of the case which
in my view makes for sad reading in the administration of justice.
The
applicant and the second respondent are virtually involved in a
battle for directorship of first respondent. This battle has had its
twists and turns all pointing to an acrimonious relationship between
the two parties.
It
is common cause that on the 24th
April 2013, the respondents obtained an order by default in HC2470/13
in which applicant and Francis Katsande were interdicted from holding
themselves out as representatives of the first respondent, Mydale
International Marketing (Pvt) Ltd.
It
is this order that respondents upon seeing that applicant and Francis
Katsande were not complying with approached this court on the 25th
January 2016 with an application for contempt of court. The
respondents sought an order that:
“1.
1st
and 2nd
respondents be sentenced to 24 months imprisonment of which 12 months
is suspended for good behaviour, effective 12 months each.
2.
1st
and 2nd
respondents pay costs on attorney and client scale.”
Prior
to that matter, in HC1687/10, in an order dated 20th
June 2012, first respondent represented by the said F Katsande as
instructed by applicant had obtained judgement in its favour. That
order included, inter
alia,
a directive that Venturas and Samukange, legal practitioners,
surrender a sum of $28,500-00 to the registrar of the High Court who
would in turn release the money to the applicant (1st respondent in
this case) upon appropriate proof of the directorship of the
applicant.
In
that regard clause 5 of HC1687/10 provided that:
“The
Registrar of the High Court be and is hereby directed to release to
the Applicant the said amount in paragraph 4 hereof upon appropriate
proof of the directorship of the Applicant.”
After
the 24 April 2013 judgement, F Katsande continued to represent first
respondent as instructed by applicant in matters pertaining to the
recovery of the $28,500-00.
In
furtherance of the directive in clause 5 in HC1687/10 on 20 April
2016 the Registrar of the High Court wrote a letter to the Registrar
of Companies seeking assistance in ascertaining the directors of
first respondent.
In
his response of the 28 April 2016, the Registrar of Companies
indicated that according to his records the current directors of
first respondent (MYDALE International Marketing P/L Company) were
Alison Alan Leslie and Valentine Peter.
In
this regard the company's CR14 was duly attached.
As
far as records at the company's registry are concerned therefore
applicant is a director of the first respondent.
The
sum in question was subsequently released to F Katsande Legal
Practitioners in their capacity as Mydale International Marketing
P/L's legal practitioners.
It
is in that regard that applicant, though interdicted, continued to
give instructions to Katsande & Partners to represent first
respondent in these courts.
In
the meantime on 25th
January 2016 the 2nd
respondent filed the contempt of court application against applicant
and Francis Katsande.
In
his application as reflected in HC669/16 he sought civil imprisonment
of the applicant and Francis Katsande in the terms alluded to above.
This
is the application which was granted in default of applicant on the
14th
March 2017. Francis Katsande attended the hearing as party to the
matter and not representative of applicant.
The
applicant alleged that he received a notice of set down of the
application for contempt through his gardener on the date the hearing
was to take place.
He
duly attended court albeit ill prepared.
The
notice of set down showed that the hearing was to be before MANGOTA
J.
When he got to court he found out that the matter was in fact to be
heard before TAGU
J.
When
the contempt of court proceedings commenced in Court J he raised
issue with the manner in which service of the process had been done
and that he had only learnt at court that it was an application for
contempt of court. He indicated that he needed time to respond to the
application. As he had not had time to prepare for the hearing he
sought court's indulgence to enable him to respond to the
application.
As
a consequence court adjourned and, to his understanding, court was to
resume at 3:30pm in the same court room on the same date.
He
thus went away and hurriedly prepared his notice of opposition and
returned to the same court room at about 3:30pm.
He
waited and as no court official came he approached the presiding
judge's clerk to inquire on the matter.
It
was then that he was advised that the matter had in fact been heard
in the judge's chambers and, as he was in default, a default order
for him to be imprisoned for 100 days had been granted.
He
thereafter sought advice after which he filed this application for
rescission and for leave to file a supplementary affidavit if
rescission is granted within 12 days of the date of the order. In
order to avert incarceration he also made an urgent chamber
application for stay of execution of the default order.
That
application was granted hence he was not arrested.
The
second respondent opposed the application. He contended that the
applicant was in wilful default and had no prospects of success on
the main application.
Upon
perusal of the papers filed of record I was of the view that the
circumstances and gravity of the matter did not warrant the
determination of the rights and interests of the parties on such
technical aspects as the omission to attach the default order.
This
is a matter involving personal liberty which liberty should be
jealously guarded and not be sacrificed on technical errors or
omissions.
In
my view, the parties were clear as to which order had been granted in
default and so the fact that the order itself was not attached,
through an error of omission by applicant's legal practitioner,
should not prejudice an applicant who upon learning of the default
order swiftly and diligently instructed lawyers to protect his
rights.
It
was for the lawyer to ensure the procedural requirements were met.
This court should not allow such ineptitude of a legal practitioner
to visit a litigant especially where personal liberty is at stake.
(See section 49 of the Constitution)
It
was my view that in such matters court should lean in favour of
personal liberty and the settling of the real issues as between the
parties.
If
applicant has to be sent to prison for contempt this must only be
after he has been given opportune time to defend himself.
It
is thus appropriate that the merits or demerits of the application be
determined.
This
is unlike a case where it can be said that the respondent did not
understand the order being complained about.
From
his opposing papers the second respondent is very clear on the order
at hand and its contents. He is aware of the order he obtained and
which has been stayed pending the determination of this application.
That
is the substance of this application.
It
is important that we deal with the substance. Thus second respondent
should not hide behind applicant's failure to attach the order in
question.
As
regards the applicant's point in
limine
that second respondent has no locus
standi
to represent first respondent, it is applicant who cited second
respondent and so second respondent is entitled to respond to the
application.
It
is also the second respondent who obtained the warrant for
applicant's civil imprisonment and it is only logical that he be a
party to this application.
I
am of the view that the issue of second respondent's locus
standi
to represent first respondent in the main matter is an issue to be
decided in that application.
The
main issue before me is whether or not the default order of the 14
March 2017 should be rescinded or not.
The
onus is on the applicant to show that there is good and sufficient
cause for this court to rescind that default order.
Rule
63 of the High Court Rules 1971 provides that:
“(1)
A party against whom judgement has been given in default, whether
under these rules or under any other law, may make a Court
Application not later than one month after he has had knowledge of
the judgement, for the judgement to be set aside.
(2)
If the Court is satisfied on an application in terms of sub rule (1)
that there is good and sufficient cause to do so, the court may set
aside the judgement concerned and give leave to defendant to defend
or to plaintiff to prosecute his action, on such terms as to costs
and otherwise as the Court considers just.”
The
onus is thus on the applicant to show that there is good and
sufficient cause for court to set aside the judgement.
In
Stockil
v Griffiths
1992 (1) ZLR 172 (S) at 173D-F GUBBAY CJ aptly noted that:
“The
factors which a court will take into account in determining whether
an applicant for rescission has discharged the onus of proving 'good
and sufficient cause' as required to be shown by Rule 63 of the
High Court of Zimbabwe Rules 1971, are well established. They have
been discussed and applied in many decided cases in this country. See
for instance, Barclays
Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86
(not reported); Roland
and Another v McDonnell
1986 (2) ZLR 216 (S) at 226E-H; Songore
v Olivine Industries (Pvt) Ltd 1988
(2) ZLR 210 (S) at 211C-F. They are:
(i)
the reasonableness of the applicant's explanation for the default;
(ii)
the bona
fides
of the application to rescind the judgement; and
(iii)
the bona fides of the defence on the merits of the case which carries
some prospect of success.
These
factors must be considered not only individually but in conjunction
with one another and with the application as a whole.”
What
emerges from the plethora of cases is that the phrase 'good and
sufficient cause' has been interpreted to mean that for one to
succeed in an application for rescission of judgement one must
satisfy the following factors:
(i)
the explanation for the reason for the default must be reasonable;
(ii)
the bona fide of the application to rescind the judgement;
(iii)
The bona fide of the defence on the merits of the case which has some
prospects of success.
In
discussing the above elements and what weight to attach to each
CHINHENGO J aptly noted in V
Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd
2002 (1) ZLR 378 (H) at 387F that:
“Each
element of the test of good and sufficient cause may be decisive on
its own in any particular case but that does not mean that it becomes
the only element or that the court has lost regard of the other
elements of establishing good and sufficient cause.”
In
Zimbabwe
Banking Corp. Ltd v Masendeke
1995 (2) ZLR 400 (S) McNALLY JA had earlier opined that:
“Wilful
default occurs when a party freely takes a decision to refrain from
appearing with full knowledge of the service or set down of the
matter.”
In
Deweras
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd
1998 (1) ZLR 368 (S) at 369E–H; 370A McNALLY JA pronounced as
follows on 'good and sufficient cause' where the aspect of wilful
default is raised:
“While
it may generally be true to say that when there is wilful default
there will usually not be good and sufficient cause, I believe we
fetter our discretion improperly if we lay down a fixed rule that
when there is wilful default there is no room for good and sufficient
cause. I favour the definition of wilful default offered by KING J in
Maujean
t/a Audio Video Agencies v Standard Bank of South Africa Ltd
1994 (3) SA 801 (C) at 803H-I:
'More
specifically, in the context of a default judgment 'wilful'
connotes deliberateness in the sense of knowledge of the action and
of its consequences, i.e its legal consequences and a conscious and
freely taken decision to refrain from giving notice of intention to
defend, whatever the motivation, for this conduct might be.'
See
also Morkel
v ABSA Bank Ltd & Anor
1996 (1) SA 899 (C).
But
it is precisely in the 'motivation' mentioned in that passage
that one might find 'good and sufficient cause.'
I
respectfully agree with the dicta
of INNES J in the oft-cited case of Cairns
Executors v Goarn
1912 AD 181 at 186 passim.
In particular, His Lordship said:
'It
would be quite impossible to frame an exhaustive definition of what
would constitute sufficient cause to justify the grant of indulgence.
Any attempt to do so would merely hamper the exercise of a discretion
which the Rules have purposely made very extensive and which it is
highly desirable not to abridge.'”
In
casu,
it is common cause that applicant had attended the morning session.
It was the afternoon session that he did not attend.
His
explanation was that he understood the time for resumption as 3:30pm
and he indeed came at that time. The second respondent on the other
hand contended that the time for resumption was 2:30pm.
He
did not, however, dispute that applicant in fact came at 3:30pm.
It
is my view that it is not uncommon for parties to a matter to
misunderstand the time a matter has been stood down to.
In
as far as the efforts applicant said he took upon returning to court
cannot be refuted it is only fair and just that he be given a benefit
of the doubt and accept that he may indeed have mistaken the time for
3:30pm hence his attendance at that time.
I
am thus of the view that his explanation in the circumstances of this
case, moreso as a self actor at the time is reasonable.
It
cannot be said with any seriousness that applicant deliberately
absconded from attending court when he knew his liberty was at stake.
The probability is that he misunderstood the time for resumption.
Had
it been a deliberate default he surely would not have turned up at
3:30pm when in all probability he would have been handing himself for
imprisonment.
In
fact the impression one gets from the litany of cases to which the
parties have appeared before this court over is that applicant was
intent on fighting for what he believed to be his rights and those of
first respondent.
The
next issue is that of prospects of success.
The
applicant alleged that the contempt of court application was not
served on him at all. What he received was a notice of set down.
In
such circumstances he ought to have been personally served with the
application itself.
It
is trite that a party to contempt proceedings must be personally
served.
In
Mydale
International (Pvt) Ltd v Dr Rob Kelly
HH4/10 GOWORA J (as she then was) aptly stated that:
“It
would seem to have escaped the attention of the learned counsel for
the applicant that a party against whom an order for contempt is
sought must not only be personally cited but that process for such
citation must be personally served on the respondent.”
In
casu,
the applicant alleged that he was not served with the application.
The
second respondent in disputing this stated that applicant was served
with the application in the same way he was served with the notice of
set down, which was via his gardener.
By
implication second respondent conceded that no personal service was
effected.
It
may also be noted that whilst the judgement by BERE J upon which the
contempt was premised interdicted applicant and F Katsande from
representing first respondent, when these same interdicted parties
appeared before CHAREWA J in F
M Katsande Legal Practitioners v Mydale International
HH225/17, contesting over monies due to first respondent, the learned
judge's sentiments were to the effect that applicant was entitled
to represent first respondent and so F Katsande could not use the
judgment in HC2470/13 to refuse to pay on the basis that applicant
was interdicted from representing 1st respondent.
In
this regard the learned judge opined that:
“The
issue of locus
standi
was peremptorily dealt with in the last paragraph of p4 of my
judgement dated 8 June 2016. Had the Registrar of the High Court,
after carrying out the investigations ordered by the Court,
established that Peter Valentine was not a director of the
Respondent entitled to represent it, then he would not have released
the trust funds to applicants. After all applicants own authority to
receive the funds was derived from Peter Valentine's instructions
for and on behalf of the respondent. In other words, if Peter
Valentine had no authority to act for respondent, then applicant also
had no authority to act for respondent and receive its trust funds.
The applicant cannot seek to have its cake and eat it too.”
In
her prior judgment in Mydale
International Marketing (Pvt) Ltd v Katsande Legal Practitioners and
Another
HC5800/16 p4 the leaned judge had stated that:
“In
para 4, of their undated letter aforesaid, the respondents referred
to HC2470/13 and HC2453/16 as further reasons for refusing to release
the trust funds. Clearly HC2470/13 is not helpful to the respondents,
as apart from interdicting Mr. Valentine from holding himself as a
representative of the applicants, it also interdicted the respondents
from acting for applicant. To my mind, the fact that the Registrar
did pay out the $28,500 respondents Trust Account obviously meant
that he had ascertained that Mr. Valentine properly represented the
applicant and also that the respondents were the duly authorised
legal practitioners of the applicant in HC1049/09 duly empowered to
receive the money.”
The
above sentiments were buttressed by the fact that the investigations
by the Registrar of the High Court as directed by this court in
HC1687/10, had revealed that in terms of the CR14 kept at the
Registrar of Companies records Peter Valentine was one of the
Directors of the first respondent.
That
situation has apparently not changed to date.
Though
the second respondent contended that he is the rightful Director of
first respondent, he did not produce any proof of his directorship or
even authority from first respondent to represent it.
The
applicant, on the other hand, tendered what he said was a resignation
letter of second respondent and Company Board Resolution appointing
applicant to represent first respondent in the High Court labour
disputes and other legal disputes.
I
am of the view that the totality of what applicant has used since
2009 to assert his position as director and as the person authorised
to represent first respondent cannot be ignored as no other person
has tendered contrary documents or evidence.
I
am of the view that the apparent conflict in the view taken of
applicant's locus
standi
is one that requires the parties involved to fully ventilate their
respective positions for a most appropriate determination to be made.
On
the basis of the above discourse, I am of the view that applicant has
shown that he has some prospects of success in the main matter.
As
regards his defence to the contempt proceedings the applicant also
alluded to the fact that the court order second respondent was
relying on was overtaken by subsequent orders from this same court
that recognised him as a representative of the first respondent.
This
would be a point of contention in the main matter.
In
as far as it was not disputed that applicant only learnt at court
that the matter he had been invited to court for was one of contempt
of court, it follows that he was not given adequate time to prepare
his response.
He
asserted that he only had about 4 hours before returning to court to
respond to the application.
In
the absence of evidence that he had been properly served with the
application in good time in terms of the rules, I am inclined to
grant him leave to file a supplementary affidavit as the one he filed
was prepared hurriedly to meet the courts timeline of resuming the
hearing in the afternoon of the same day.
Accordingly
I am of the view that the applicant has shown good and sufficient
cause for the rescission of the default judgement entered against him
on the 14th
March 2017 in HC669/16.
Accordingly
it is hereby ordered that:
1.
The default judgement granted in HC669/16 of the 14 March 2017 be and
is hereby rescinded.
2.
The applicant is hereby granted leave to file a supplementary
affidavit in HC669/16 within 12 days of the date of this order.
3.
The 2nd
respondent shall bear costs of suit on the ordinary scale.
Stansilous
& Associates,
Applicant's legal practitioners
Venturas
and Samukange,
Respondents legal practitioners
