This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.The facts relevant to the resolution of the dispute between the parties are briefly these:The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent ...
This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.
The facts relevant to the resolution of the dispute between the parties are briefly these:
The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.
The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.
As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.
The respondent filed an application for rescission of the default judgement under case number HC548/14.
The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:
“MEMORANDUM OF AGREEMENT
It be and is hereby recorded that following a meeting between:
Plaintiff and her legal practitioner Mr G. Nyoni
Defendant and his legal practitioner Mr S.S. Mazibisa
It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:
1.The execution of Defendant's property be stayed only and strictly on the following conditions:
(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.
(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.
2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.
3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.
4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.
DATED at BULAWAYO on this the 26 day of MARCH 2014.”
It was signed by both parties and their respective legal practitioners.
As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.
The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.
On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:
“RE: M. NCUBE vs SIPIWO NKOMO
The above matter refers and to our previous conversation.
Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.
In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”
The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.
On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.
The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:
“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13
The above matter refers and to the attached court order.
Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.
What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.
In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.
As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”
That letter elicited a response from the applicant's legal practitioners in this vein:
“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”
This letter provoked no response from the respondent hence the current application.
At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.
I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.
As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.
I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.
In his heads of argument, the respondent raised three issues in opposing the grant of this application. I herewith deal with them hereunder:
(a) That the agreement was a compromise
The argument here is that the agreement was meant to put an end to the parties intended action, viz the applicant stay execution and respondent, implicitly not to pursue rescission. The respondent further argues, that, if any of the parties failed to honour the compromise the proceedings would resume.
Both parties breached the agreement – the respondent failed to keep up with payments while the applicant took the car from the dealer and started using it.
The situation was: who approached the court first to continue the suspended proceedings? and unfortunately, for the applicant, the respondent did so first and prosecuted his application for rescission.
In Georgias and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (SC)…, GUBBAY CJ…, defined compromise in these words:
“Compromise or transactio is the settlement, by agreement, of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something – either diminishing his claim or increasing his liability.”
It is trite law, that, once a compromise agreement is concluded, it precludes an action on the original debt, except where the compromise specifically or by clear implication provides that the original claim shall revive in the event of the non-performance of the terms of the compromise: FARLAM and HATHAWAY: A Case Book on the South African Law of Contract…,.
In casu, assuming that the agreement the parties concluded meets the requirements of a compromise, the respondent argues, that, it contained a clear implication “implicitly and explicitly” that the original claim shall revive in the event of non-performance of the terms of the compromise.
A reading of the terms of the agreement does not distil an implication, let alone a clear one, that the respondent would revive his application for rescission in the event of non-performance by the applicant or by himself of the terms of the compromise.
In casu, it is the respondent who failed to perform his terms of the compromise by failing to pay.
I am yet to come across a compromise agreement with a clause, either express or implicit, giving a party who deliberately fails to perform his/her terms of the compromise, the leeway to revive the original claim. If anything, it is the applicant who was granted the explicit right to revive execution of the respondent's property vide the words in paragraph 1 which state:
“The execution of defendant's property be stayed only and strictly on the following conditions” which are mentioned in (a) and (b), viz the payment by him of the amounts stated therein which amounts the respondent failed to pay.
Further, in the absence of fraud, duress, or justus error, it is also trite, that, the purpose of a compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties unless the right to rely thereon was reserved: Nagar v Nagar 1982 (2) SA 263 (ZH).
In the instant case, as already found supra, the agreement reserved no such right to the respondent.
Even if he had such right, he still would be precluded from rushing back to court without giving due notice of such action to the applicant, who..., was justified in wallowing in the belief that the agreement was still binding.
