It
is trite law that the factors which are taken into account in deciding whether
default judgment should be rescinded are –
(a)
The reasonableness of the applicant's explanation for the default;
(b)
The bona fides of the application to rescind the judgment; and
(c)
The bona fides of the defence on the merits of the case and whether that
defence carried some prospect of success – Barclays Bank of Zimbabwe Ltd v CC
International (Pvt) Ltd SC16-86; Roland & Anor v McDonnell 1986 (2) ZLR 216
(S)...,.; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)...,;
Stockil v Griffiths 1992 (1) ZLR 172 (S)...,.; Mdokiwa v Shoniwa 1992 (1) ZLR
269 (S) and Ndebele v Ncube 1992 (1) ZLR 288 (S).
I
propose to consider these factors in turn.
(a) The
reasonableness of the applicant's explanation for the default
The
applicant's explanation is that she initiated the application and thereafter
left for her communal home to plough. She was represented by one Alpheus Ncube,
who she thought was an estate agent. Alpheus Ncube referred her to one Elder
Sam, who was said to be a lawyer.
Alpheus
Ncube was not an estate agent, and Elder Sam was not a legal practitioner.
Elder
Sam consulted with her, and filed a court application under HC2612/07 on her
behalf.
She
trusted Elder Sam when he said he would do everything on her behalf thereafter,
and she proceeded to her communal home to do the ploughing...,. She was content
with Elder Sam's ability to do her legal work after seeing that he had managed
to file the said court application.
In
the circumstances, she said it was not by design that she did, initially, file
her answering affidavit under HC 2612/07 timeously, nor was it by design that
she did not file, right away, a notice of opposition under HC40/08. She was not
in Bulawayo, and Elder Sam did not communicate these issues to her. She said
that she was ignorant of court practice, and she was under the mistaken belief
that Elder Sam was a lawyer, and was in control of the situation. Upon her
return from the communal lands she went to see Elder Sam, only to be told more
papers needed to be done so that she could sign them.
Her
explanation is, briefly, that she had been duped by Alpheus Ncube, and Elder
Sam, into believing that the latter is a legal practitioner capable of handling
the matter on her behalf.
There
is no suggestion that her explanation is false, but, certainly, she was
gullible. Her gullibility, bearing in mind she is a rural dweller who trusted
the wrong guys, does not make the explanation unreasonable. She should not be condemned
for being a victim of deceit.
Her
explanation for the default is, therefore, reasonable.
(b)
The bona fides of the explanation for
rescission
It
is not clear which is the correct purchase price. There are two prices given,
viz. $600 million and $300 million. It does seem to me that one of the prices
was given to cheat the Zimbabwe Revenue Authority of the capital gains tax.
This is what I glean from the papers.
With
such unexplained disparity of the purchase price, it is difficult to determine
the merits of the cancellation of the Agreement of Sale.
(c)
The bona fides of the defence on the
merits
I
have already alluded to the problem on the purchase price. There is, it seems,
the correct price in the minds of the parties, and another price for tax
evasion. The applicant and the estate agent seem to know of the price of $600
million. The conclusion, and execution, of the Agreement is characterized by
misrepresentations to the applicant...,. She was deceived by a person who
purported to be an estate agent and another who purported to be a lawyer...,.
The impact of these issues have to be examined vis-a-vis the legality of the
contract.
In
the circumstances, the applicant has made out a case for the order sought.
Accordingly,
it is ordered as follows:-
(a)
That the order of this court granted on 6 February 2008, under case number
HC40-08 be and is hereby rescinded.
(b)
That the second respondent be and is hereby interdicted from allowing the
transfer of Stand Number 4656 Nketa 7, Bulawayo, registered under Deed of
Transfer..., 611/08, to anyone else, pending the outcome of this matter.
(c) That costs shall be costs in the cause.
