MAKONI
J: This is an application for
rescission of the judgment granted by this court on 13 May 2009 in case number
HC 6215/08. The matter was argued before me on 3 September 2009. In their
submissions the respondents raised a point in limine that the applicants were in contempt of the judgment that
they seek to rescind. The applicants opposed the issue of contempt. On 21
October 2009 I made a finding that the applicants were in contempt of the order
and that their application for its rescission will not be determined on the
merits until they purge their contempt. The applicants have since purged their
contempt. I will now proceed to determine the application for rescission.
The
brief background to the matter is that the respondents filed a court
application for spoliation in case number HC 6215/08 on 27 October 2008. This
was after the dismissal of an urgent chamber application for the same relief in
case number HC 4864/08. They proceeded to file another urgent chamber application
on 12 November 2008 under case number HC 6507/08 seeking the same relief based
on fresh acts of spoliation.. This case was heard by MUSAKWA J on 19 November
2008 and judgment was handed down on 28 January 2009 dismissing the respondents
application.
The
applicants did not file opposing papers in case number HC 6215/08. The matter
was set down on the unopposed roll on 6 April 2008 and was postponed to 29
April 2008. The record reflects that on 29 April 2008 Mr Zhou appeared for the respondents and Mr Chingore for the applicants. This appears on the motion roll result
sheet. The matter was further postponed to 13 May 2008. The result sheet of
that date reflects that, again, the parties were represented by the same legal
practitioners who appeared on 29 April 2009. It also reflects that the order
was granted as amended. The present application was then filed the following
day.
The
application is made in terms of order 9 r 63. In terms of that rule, the court
may set aside a judgment entered in default if it is satisfied that there is
good and sufficient cause to do so. The factors that the court takes into
account in defining good and sufficient cause are now settled in our law. They have
been discussed and applied in a number of cases in our jurisdiction. See Stochhill v Olivine 1988 (2) ZLR 210. These factors are:
(i)
the reasonableness of the applicants' application for
the default.
(ii)
The bona fides
of the application to rescind the judgment.
(iii)
The bona fides of
the defence on the merits of the case which carries some prospect of success.
The
applicants contend that they were not served with the court application. They
got to know about the application when they were served with case number HC
6507/08 whereby the respondents were seeking; inter alia; amalgamation' of
that case with case number HC 6215/08. This was around 18 November 2008. They
further contend that the two matters were consolidated and were dealt with by
MUSAKWA J.
The
respondents contend that the applicants were served with the court application
by the Deputy Sheriff in October 2008. When the applicants put this factor in
issue before MUSAKWA J, they were again served with the application through
their legal practitioner Mr Chingore.
They did not file any papers in opposition hence the setting down of the matter
on an unopposed roll.
The
issue of service of the court application in HC 6215/08 was dealt with by
MUSAKWA J in his judgment. He commented as follows under the heading “Service
of Application in case number HC 6215/08”:
“As stated
earlier, the Deputy Sheriff's returns of service indicate that the application
was served on the respondent's relatives. In respect of the first and second
respondents, the application was served on Milton Chamboko who happens to be
the respective respondent's son and brother. In respect of third respondent, it
was served on Abel Rwodzi his son. A Deputy Sheriff's return is prima facie proof of service. The
contention by the first, second and third respondents that they were not served
or that service was defective cannot be sustained. In any event the letter by
the respondents legal practitioners to the effect that they had authority to
receive service is dated 28 October 2008 whereas the respondents were served on
23 October 2008”.
I
agree entirely with the finding by MUSAKWA J that the applicants were served
with the court application by the Deputy Sheriff on 23 October 2008.
Even
if I were to disregard the returns of service by the Deputy Sheriff, the
applicants have not disputed that they were served with the court application
through their legal practitioner, during or after the hearing before MUSAKWA J.
They attribute their failure to file opposing papers to the fact that they
thought the two matters had been consolidated.
If
one were to accept their version, the judgment by MUSAKWA J was handed down on
28 January 2009. The applicants contend that they only managed to get the full
reasons towards the end of May. The applicants have not tendered any
explanation as to why from the end of May to 13 May 2008, they failed to apply
for upliftment of the bar and file their opposing papers.
Further
to the above, on 29 April 2009, Mr Chingore
appeared before HUNGWE J in motion court. As is the nature of motion court
proceedings, one cannot tell, from the record, what transpired in court.
However, what is significant about this fact is that by 29 April 2009 Mr Chingore was aware that case number
6215/08 was still alive and had been set down on the unopposed roll due to
failure by his clients to file opposing papers. No papers were filed to
regularize the default until on 13 May 2009 when the default judgment was
granted.
From
the above account, it is clear that the applicants became aware of the
existence of case number 6215/08 and with full knowledge of the service or set
down of the matter, and of the risks attendant upon default, freely took a
decision to refrain from filing papers in opposition. See Zimbank Banking Corp v Masendeke
1995 (2) ZLR 400 (S) at 402 D.
I
would agree with Mr Zhou's submission
that the application is not bona fides.
It was triggered, by the writ of execution. The applicants had various
opportunities to regularise their papers but they did not. As was submitted on
their behalf, .they filed the present application as they believed that the
application for rescission suspended the order until the determination of the
application.
The
applicants submitted that they have a bona
fide defence on the merits on the basis that the respondents have no locus standi to seek their eviction. As
the land now belongs to the State, the respondents are “unlawful occupiers” and
“illegal occupiers”.
It
was further submitted that the applicants moved on the farm with the
acquiescence of the respondent. It was only much later that the respondents
unsuccessfully instituted spoliation proceedings in case numbers HC 4864/08 and
HC 6507/08
On
the other hand the respondents argue that the spoliation order is not dependant
on the respective rights of parties but upon the unauthorized self-help disturbance
of the respondent's occupation on the farm. It was the duty of the Minister to
provide vacant possession to the new occupier.
The
respondents in case number HC 6215/08 sought an order for spoliation and not
eviction as is advanced by the applicants. They have locus standi to institute spoliation proceedings as these
proceedings are not dependant on the respect rights of the parties.
The
requirements for spoliation relief are well settled in our law. These are:
(i)
that the applicant was in peaceful and undisturbed
possession of the property; and
(ii)
that the respondent deprived him of the possession
forcibly or wrongfully against his contest.
See
Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79 D-E, Best of Zimbabwe Lodges (Pvt)
Ltd & Anor v Croc Ostrich Breeders of
Zimbabwe (Pvt) Ltd &
Ors 2003 (1) ZLR 57 H and Shiriyekutanga
Bus Services (Pvt) Ltd v
Total Zimbabwe.
When
the applicants moved onto the farm they did not have the respondents consent
neither did they have a court order. They were armed with offer letters. The
offer letters did not entitle them to despoil the respondents. Their remedy is
to approach the Minister so that he can give them vacant possession through the
provisions of the Gazetted Lands (Consequential Provisions Act. [Cap 20:28]. In view of the above the applicants have not established a bona fide defence on the merits which
carries some prospect of success to the claim by the respondents.
In
the result, I make the following order:
(i)
The application is dismissed.
(ii)
The applicant must pay respondents costs.
Chingore & Associates, 1st and 2nd applicants'
legal practitioners
Coghlan, Welsh &
Guest, 1st and 2nd respondents' legal practitioners
