This
is an opposed application for rescission of an order of divorce
granted by this court on 19 May 2011 in case No. HC3037/10.
The
order sought by the applicant is couched in the following terms;
“IT
IS ORDERED
1.
That the judgment that was issued in default of filing of a plea by
the applicant in case Number 3037/10 on 17 May 2011 (sic) be and is
hereby rescinded.
2.
That the applicant will file her plea within 48 hours of this order
being issued.
3.
That there will be no order of costs if this application is not
opposed.”
The
background facts giving rise to this application can be summarised as
follows;
The
applicant was married to the respondent in terms of the Marriage Act
[Chapter
5:11];
which
marriage was solemnised on 8 December 1989. There are now only two
minor children born out of that marriage, namely, Blessing Tawanda
Zulu born on 26 January 1996 and Ezra Munyaradzi Zulu born on 9 June
2000.
The
applicant has been ordinarily resident in the United Kingdom for some
time where she is said to be working as a nurse at the same time
seeking to regularise her resident status. The applicant is in
custody of the two minor children in the United Kingdom and the
Magistrates Court in Zimbabwe granted a contributory maintenance
order against the respondent in respect of the minor children in case
No. M333/11. The respondent is resident in Zimbabwe.
On
7 May 2010, the respondent issued summons out of this court seeking a
decree of divorce, an order governing division of matrimonial assets,
an order governing custody of the minor children and cost of suit if
the matter is defended.
The
applicant was served personally with the respondent's declaration
at the Magistrates Court (Civil) Harare on 18 February 2011 where she
was attending a court hearing - presumably the maintenance case.
On
25 February 2011 the applicant filed an appearance to defend and gave
her address of service as that of her legal practitioners who had
assumed agency, Mujeyi Manokore Attorneys.
On
23 March 2011, the respondent filed a notice to plead and intention
to bar which was served upon the applicant's legal practitioners on
the same day.
The
applicant did not file the plea and the dias
induciae
expired which meant that the applicant was barred in terms of the
Rules of the court and an endorsement to that effect was made by the
Registrar on 11 April 2011.
The
respondent proceeded to set the matter down on the unopposed roll and
a notice of set down was served on the applicant's legal
practitioners on 4 May 2011 and the set down date was on 12 May 2011.
The applicant did not attend court, and, on 19 May 2011, my brother
judge CHITAKUNYE J granted the following order;
“It
is ordered that;
1.
Divorce Order:- That a decree of divorce be and is hereby granted.
2.
Maintenance:- The plaintiff will pay maintenance as per the
Magistrates Court order granted at Harare in case No. M333/11.
3.
Custody:- Custody of two minor children, namely, Blessing Tawanda
Zulu born on 23 January 1996 and Ezra Munyaradzi Zulu born on 9 June
2000 be and is hereby granted to the defendant. The plaintiff shall
enjoy reasonable access.
4.
Property:-
4.1
Movable:- It be governed and distributed as per Annexure “B” to
this order.
4.2
Immovable: It be governed and distributed as per Annexure B attached
to this order.
5.
That the defendant pays the costs of suit.”
On
13 June, the applicant filed this court application seeking the
rescission of the order granted in default by CHITAKUNYE J....,.
In
terms of Order 9 Rule 63 of the High Court Rules, 1971 (hereinafter
the Rules) this court may set aside judgment given in default. The
relevant provision, Rule 63(2), is couched as follows;
“63
Court may set aside judgment given in default
1….,.
2.
If the court is satisfied, on application in terms of subrule (1),
that there is good
and sufficient
cause
to do so, the court may set aside the judgment concerned and give
leave to
the defendant to defend or to the plaintiff to prosecute his action,
on such terms as to costs
and otherwise as the court considers just.”…,.
In
terms of the rules, therefore, the applicant has to prove, on a
balance of probability, that there is good and sufficient cause to
rescind the Divorce Order granted in default....,.
It
is now trite law that the court, in setting aside or rescinding
a default judgment, considers the following factors;
(i)
The explanation for the default. In this regard, the court considers
the reasonableness and the acceptability of the explanation given.
(ii)
The bona
fides
of the applicant or application.
(iii)
The bona
fides
of the applicant's defence on the merits as well as prospects of
success or the prima
facie
strength of the applicant's case.
See;
Deweras
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998
(1) ZLR 368 (S); Beitbridge
Rural District Council v Russel Construction Co (Pvt) Ltd 1998 (2)
ZLR 190 (S)…,.
I
now proceed to apply these principles to the facts of this case.
1.
Applicant's explanation for the default
It
is common cause that the applicant was served with the notice to
plead and intention to bar in terms of Order 35 Rule 272(1)(b) of the
Rules and that after the dies
induciae
the
respondent proceeded
to seek a final order in terms of Order 35 Rule 272(2)(b) of the
Rules. It is common cause that the applicant, even after being served
with the notice of set down in terms of Rule 272(2)(b), did not
attend court. The probability is that even if the applicant had
attended court on the date of set down the applicant could still not
be heard on the merits without seeking the upliftment of the bar in
terms of the Rules.
I
have to consider whether there is a reasonable and acceptable
explanation given by the applicant for failure to comply with Order
35 Rule 272(1)(b), and, to some extent, Rule 272(2)(b) of the Rules.
I
am not persuaded by counsel for the applicant's belated submission
that I should grant the order sought on the basis of Order 49 Rule
449 which relates to correction, variation and rescission of
judgments and orders. The order granted by CHITAKUNYE J, on 19 May
2011, was not issued in error but in terms of Order 35 Rule
272(2)(b).
The
explanation given for the default by the applicant is not clear in
her founding affidavit. In fact, in her founding affidavit, the
applicant did not see it fit and proper to give any reason as to why
the order granted by CHITAKUNYE J should be rescinded. The applicant
had only this to say:
“The
exact details of the order I seek will be expressed in the affidavit
that has been deposed to by my attorney, Bruce Mujeyi. I incorporate
the contents of his affidavit as is specifically traversed herein.”
The
applicant, in her wisdom, decided to shy away from proffering any
explanation to her default in her founding affidavit which is crucial
to her case. In other words, the applicant gave no explanation as to
what she did about this case after she instructed her attorneys to
enter an appearance to defend on 25 February 2011 until four months
later, on 13 June 2011, when she filed an application for rescission
of the order granted in default. It is not clear whether she was,
during that period, in Zimbabwe or not. She does not explain again if
she communicated with her attorneys, and, if so, how she did that.
The applicant does not explain if indeed she gave her attorneys any
instructions to file a plea to the plaintiff's claim. All these
questions are not answered in Mr Mujeyi's supporting affidavit
which the applicant seeks to rely upon. It is therefore clear to my
mind that the applicant had not, in her founding affidavit, given any
explanation for the default save to leave matters in the hands of her
erstwhile legal practitioners.
It
may be worthy to consider what explanation is given by the
applicant's erstwhile legal practitioners Bruce Mujeyi (hereafter
Mujeyi). It is pertinent to note that after deposing to the
supporting affidavit on 10 June 2011 and filing this application on
13 June 2011, Bruce Mujeyi renounced agency barely two days later, on
15 June 2011.
The
thrust of Bruce Mujeyi's supporting affidavit is to try and explain
the failure by the applicant, in particular Mujeyi himself, to file a
plea after being served with the notice to plead and intention to bar
in terms of Order 35 Rule 272(1)(b). Mujeyi's explanation is that
after he entered an appearance to defend, on 25 February 2011, he
left the country. He does not explain as to when he left the country
or where he went or for how long he was out of the country. There is
no explanation as to what instructions he left in relation to the
applicant's file at his law firm and with whom.
Was
it prudent for Bruce Mujeyi to simply enter an appearance to defend
and leave the country for an unspecified period without ensuring that
other legal practitioners in his firm would attend to his matters in
his absence?
That
conduct, in my view, is not only unreasonable but unacceptable.
It
is not clear as to whether Bruce Mujeyi had been given instructions
or taken instructions to file the applicant's plea. All he says is
that the notice to plead and intention to bar was served when he was
out of the country. Again, it is worthwhile to quote his own words:
“The
notice to plead and intention to bar was dealt with in a matter (sic)
that decries sheer incompetence by a member of my staff. The document
was simply filed away in the file instead of being referred to one of
the several legal practitioners in my firm who were there during the
time I was away. The matter was subsequently heard as an unopposed
matter and judgment was granted on 17 May 2011.”…,.
As
already said, there is no explanation as to when Bruce Mujeyi left
the country and for how long he was away. In fact, the respondent
challenged this averment and said that on the day he served the
notice to plead and intention to bar on Bruce Mujeyi's legal firm,
Mujeyi was present at the firm. In fact, the respondent said soon
after effecting service of this notice to plead he was called by
Bruce Mujeyi who was in his office, and, as persons known to each
other, they had a discussion on social issues unrelated to the
matter.
I
am constrained to find that the respondent would lie on this aspect
and fabricate such evidence.
In
any case, this has not been refuted by Bruce Mujeyi who has not
offered any proof to show that he was indeed out of the country, for
example, through his passport. He said he only became aware of the
default judgment when an unnamed legal practitioner in his firm sent
him an e-mail indicating that the applicant was being evicted from
the matrimonial house on account of the default judgment.
It
is again unclear if by then the applicant was in Zimbabwe. No proof
of such an e-mail is provided. It is also important to note that
there is no supporting affidavit from the receptionist in Mujeyi's
legal firm who received the notice to plead and the notice for set
down to confirm the averments by Mujeyi on what happened when Mujeyi
was ostensibly out of the country. No explanation for that omission
is made. The receptionist would indeed confirm why she would act in
the manner alleged and indeed take the blame if it is true that it is
what she did.
The
explanation given by Mujeyi is that the applicant was not at fault
for the default as she was not alerted to the fact that the
respondent had filed a notice to plead and intention to bar, and,
subsequently a notice of set down. He further avers that the level of
delinquency exhibited by his law firm in the matter is deplorable,
which blame he shifts to the receptionist, and that this should not
be held against the applicant who is not to blame for this fiasco.
I
am not persuaded by this argument not only because it had not been
shown that what Mujeyi says is indeed correct but also on account of
the fact that our courts have long pronounced, loudly and clearly, to
all and sundry that where legal practitioners fail to take
appropriate action to protect their clients' interest such conduct
besides being treated as wilful non-compliance with the rules would
be treated as wilful disdain by the clients themselves.
It
is not good enough for the applicant to shift the blame to Mujeyi's
law firm and for Mujeyi to run away from the blame by shifting blame
to an unnamed secretary in the law firm and by renouncing agency in
this matter. Mujeyi was the legal representative of the applicant
whom the applicant chose herself. I therefore find no reason why, in
relation to failure to comply with Rule 271(1)(b) of the Rules, by
not entering a plea, the applicant should be absolved from the normal
consequences of such a relationship and choice, no matter what the
circumstances of the failure are.
The
wise words by McNALLY JA in the case of Ndebele
v Ncube
1992 (1) ZLR 288 (S)…, apply with equal force in this case;
“The
time has come to remind the legal profession of the old adage,
vingilantibus
non dormientbus jura subvenient
- roughly translated, the law will help the vigilant but not the
sluggard.”
It
is therefore my finding that the applicant has dismally failed to
proffer a reasonable and acceptable explanation for her default to
enter a plea.
