MUSAKWA J: This is an application for
rescission of a default judgment that was granted against the deceased, Andrew
Benjamin Woodburn Charumbira who was the applicant's husband.
In case number HC 2534/06 deceased
instituted proceedings against first respondent for the transfer of stand
number 776 Fort Victoria Township
of Victoria District. The matter was set down for 16 January 2008 when it was
dismissed for want of appearance on the part of deceased.
In her founding affidavit applicant
states that deceased died on 17
December 2006. Applicant was subsequently appointed executor of the
estate on a date not specified. However, annexure “A” to the founding affidavit
purports that an edict meeting was held on 18 December 2006. She advertised the estate in the Government
Gazette of 15 June 2007
as well as in the Mirror (The Masvingo Mirror) of 28 August 2007. She gave her address as 30
Elliot, Rhodene, Masvingo. No process in the name of the deceased was ever
brought to her attention. Thus she contends that there was no willful default.
On the merits she contends that there
is a good claim against the first respondent as he conducted a double sale. It
is also her contention that since deceased's claim is one of real rights it is
transmissible to his estate.
Mabasa Crispen Mukome, first
respondent's legal practitioner deposed to the opposing affidavit. He raised
three issues. The first issue was that applicant had not sought condonation of
the late filing of the application for rescission of judgment. This is because
the application for rescission was not filed within thirty days of the granting
of the default judgment. Applicant had filed both the application for
condonation and rescission on the same day and the application for condonation
had not been heard at the time of hearing the present application. However, at
the time of hearing applicant's counsel applied for condonation and this was
not opposed by first respondent's counsel. The application for condonation was
therefore granted by consent. That then disposes of the first issue.
The second issue was that applicant
had not demonstrated why she believes she has prospects if rescission is
granted. This is because she did show that there is a prima facie claim against
the first respondent apart from making a bald averment that deceased purchased
the disputed property from first respondent. It is further contended that
applicant must show that the claim against respondent has prospects of success.
The issue of a double sale was never raised by applicant's late husband when he
instituted the application. It is also contended that applicant's late husband
failed to provide proof that he paid the full purchase price for the property.
The third issue was not raised in the
opposing affidavit. This arose at the time of hearing and I allowed the parties
to address it as it is a point of law. This relates to applicant's locus standi.
I will dispose of the issue of
applicant's locus standi first.
Applicant filed notice of her substitution in place of her deceased husband on 23 February 2009. Mr Makuku for the applicant submitted that
although notice of substitution was served on first respondent late that does
not affect the matter. I understood this argument to have been advanced in
light of the fact that the notice of substitution was filed after the filing of
the application for rescission of judgment.
On the other hand Mr Mukome for first respondent submitted
that Order 13 rule 85A provides how an interested party can seek to be joined
in ongoing proceedings. He further contended that after issuing the notice of
substitution applicant did not make a chamber application for substitution. He
also took issue with the late filing of the notice of substitution which was
done after filing of the application for rescission. Accordingly, he argued
that applicant was not properly before the court.
Order 13 rule 85A of the Rules of the
High Court provides that-
“(1) No
proceedings shall terminate solely as a result of the death, marriage, or other
change of status of any person, unless the cause of the proceedings is thereby
extinguished.
(2) If,
as a result of an event referred to in subrule (1), it is necessary or
desirable to join or substitute a person as a party to any proceedings, any
party to the proceedings may, by notice served on that person and all other
parties and filed with the registrar, join or substitute that person as a party
to the proceedings, and thereupon, subject to subrule (4), be, as if he had
been a party from their commencement:
Provided that-
(i) except
with the leave of the court, no such notice shall be given after the
commencement of the hearing of any opposed matter;
(ii)
the copy of the
notice filed on the person to be joined or substituted shall be accompanied by
copies of all documents previously filed or served in the proceedings.
(3) Where
a party to any proceedings dies or ceases to be capable of acting as such, his
executor, curator, trustee or other legal representative may, by notice filed
with the registrar and served on all other parties to the proceedings, state
that he wishes to be substituted for that party, and thereupon, subject to sub
rule (4), he shall be deemed to have been so substituted in his capacity as
curator, trustee or legal representative, as the case may be.
(4) A
judge may, on chamber application being made to him within fifteen days after
the service of a notice in terms of sub rule (2) or sub rule (3), set aside or
vary any joinder or substitution of a party effected in terms of sub rule (2)
or (3), as the case may be.”
According to sub rule (3) a party to
proceedings may be substituted with an executor curator, trustee or legal
representative. All that is required is to file a notice stating the intention
to be substituted for the deceased party or the party that is no longer
available and serving such notice on all parties to the proceedings. Subject to
sub rule (4) once that is done the executor, curator, trustee or other legal
representative is deemed (my emphasis) to have been substituted in place
of the unavailable party. There is no provision requiring the filing of a
chamber application. The only way such a substitution may be set aside or
varied is if a chamber application is made within fifteen days after service of
the notice in terms of sub rule (4). Since no such chamber application was made
to set aside or vary the notice of substitution the applicant is deemed to have
been so substituted in her capacity as executrix dative of the estate of the
late Andrew Benjamin Woodburn Charumbira. Since no time limit within which such
notice of substitution ought to be filed is provided I hold that applicant has
the requisite locus standi.
As regards an application for
rescission of judgment it is a requirement that an applicant has to establish
the following-
(a) An explanation for the default.
(b) The bona fides of the application for
default
(c) The bona fides of the applicant's case
on the merits.
In this respect see the cases of Roland & Another v McDonnell 1986
(2) ZLR 216 (S) and Washaya v Washaya
1989 (2) ZLR 195. It is not disputed that notice of set down was served after
Andrew Benjamin Woodburn Charumbira had died. Mr Mukome submitted that there was no notification of change of
address for service. He further pointed out that applicant conceded that she
was aware of the pending litigation but did nothing.
According to Mr Mukome, applicant should have stepped into deceased' shoes in order
to safeguard the interests of the estate. He referred to the case of Diana Farm (Pvt) Ltd v Madondo & Another 1998 (2) ZLR 410 (HC). In that case an
executor to a deceased estate had attempted to collect property belonging to
the estate. The applicant then applied for a spoliation order seeking the
return of the property that had been taken by the executor. A provisional order
had been granted but this was discharged on the return date. In discharging the
provisional order SMITH J held that the executor had acted lawfully and had a
duty to safeguard property belonging to the estate. The argument by Mr Mukome was that applicant was aware of
the litigation instituted by her husband but she did not do anything that would
have averted the default judgment soon after the husband's death.
The explanation given by applicant
for the default cannot be faulted. The default judgment was granted after
applicant had advertised the deceased's estate in the Government Gazette and
The Masvingo Mirror. In the advertisements she gave her address as 30 Elliot,
Rhodene, Masvingo. In the circumstances that was the best way of informing the
world at large about her husband's death. It cannot be said that she failed to
act diligently in safeguarding the interests of the estate.
Regarding the bona fides of an applicant's
case on the merits McNALLY J.A. had this to say in the case of Songore v Olivine Industries (Pvt) Ltd
1988 (2) ZLR 210 (SC) at 213-
“Before I go further, I think it is necessary to say
something about the kind of allegations one may expect from an applicant for
rescission of judgment. The effect of the cases is summed up at p 371 of the
edition of Herbstein and van Winsen. The Civil Practice of the Superior Courts
in South Africa
as follows-
'the applicant must show that he has a bona fide
defence to the plaintiff's claim, it being sufficient if he sets out averments
which, if established at the trial, would entitle him to the relief asked for,
he need not deal with the merits of the case or produce evidence that the
probabilities are actually in his favour.”
Now, in the present matter applicant
claims that the deceased was the first to purchase the house in question and
that first respondent subsequently sold it to another. Although not stated it
is also common cause that applicant is in occupation of the house. It cannot be
said that on the face of it applicant has no prospects of success in her claim.
I note that first respondent's defence is that he cancelled the agreement of
sale because he did not receive the purchase price in full. Suffice to further
note that the agreement of sale was subsequently amended in respect of the
purchase price and vacant possession. That is why deceased was able to assume
occupation. In his notice of opposition first respondent does not explain how
the agreement was cancelled.
Finally, it is noted that that
applicant sought costs on a higher scale. No explanation was given why she
sought costs on a higher scale. Even applicant's counsel did not address the
issue at the hearing. It is my considered view that such costs cannot be
awarded on the mere say-so of the applicant.
In the result the application is
granted in terms of the draft order save that costs shall be on the ordinary
scale.
Muzenda & Partners, applicant's legal practitioners
Muvingi, Mugadza
& Mukome, first respondent's legal practitioners
