ZIYAMBI JA: On the 25 February 2014, the respondent
(Luxor), as the plaintiff, issued simultaneously a summons and a declaration
claiming, inter alia,
“(a) Cancellation of the lease agreement
between the Plaintiffs and the Defendants on the 31st January
2005;
- Payment of the sum of US$11 127.55 being arrear
rentals operational costs and rates as at 25 January 2013, for Shop 1
Luxor House Fife Street/9th Avenue, Bulawayo
- Eviction of the Defendant(s) from Shop 1
Luxor House Fife Street/9thAvenue, Bulawayo together with all those who
claim title through him;
- Payment of holding over damages of US$1 000.00
per month calculated from 1st January 2013 to the date of
eviction and/or cancellation of the lease agreement;
- Costs of suit on a client Attorney (sic) scale.”
On 11 March 2013 the summons were
served on the appellants by the Deputy Sheriff Bulawayo who explained to them
the exigencies thereof. No appearance to defend was entered.
On 4 April 2013, Luxor applied for
default judgment. The matter was duly set down for hearing on the roll of
unopposed matters and, on 11 April 2013, default judgment was granted by the
High Court as prayed save that costs were granted on the ordinary scale.
On 22 April 2013 a Writ of Execution
and Ejectment was served on the appellants by the Deputy Sheriff. The
date of ejectment was set for the 25 April 2013. Certain items of movable
property as well as a motor vehicle were attached and removed by the Deputy
Sheriff pending their sale in execution on the 9 May 2013.
On 29 April 2013, the appellants
were evicted in terms of the writ.
On 7 May 2013 the appellants filed a
court application for rescission of the default judgment. They based
their application on Order 49 r 449(1)(a) of the High Court Rules[1].
They alleged that the default judgment was erroneously granted in that it
disclosed no cause of action. In particular, they alleged that there was
no allegation in the declaration of a breach of the lease agreement nor was
there a computation as to how the amount claimed was arrived at.
The application was opposed by Luxor
whose opposing affidavit was deposed to by one Simon Moyo, a partner in Knight
Frank estate agents, who are the letting agents of Luxor. He averred that he
was authorized to depose to the affidavit on behalf of Luxor and could swear to
the facts. He denied that the judgment was erroneously given and alleged that
not only were the averments in the summons and declaration sufficient to
sustain the cause of action alleged, which was a failure to pay rent and
operational costs, but that documentary evidence in the form of a schedule of
payments by the appellants, deeds of suretyship signed by the second and third
appellants, and a schedule showing the balance outstanding as at January
25, 2013, were produced to the Court which granted the application for
default judgment. The appellants, it was alleged, had
followed the wrong procedure and should have brought their application in terms
of r 63 of the Rules. Their failure to take action after service of the
summons coupled with their inaction even when they were served with the writ of
execution and eventually evicted on 29 April 2013, was a clear indication that
they had no defence to Luxor's claim.
In their answering affidavit the
appellants alleged that the opposing affidavit of Simon Moyo was not properly
before the court in that he had no authority (in the form of a resolution by
Luxor) to act on behalf of Luxor. Further, there was no need for the
appellants to enter appearance to defend because upon receipt of the summons
they approached Luxor and 'the parties reached an agreement that the court
process be stayed as an agreement to settle the rental arrears was
reached.' One notes, in passing, that the fact that the rentals were in
arrears was accepted by the appellants.
The learned Judge found no merit in
the application and dismissed it with costs, hence this appeal.
THE APPEAL
Two main points were taken by the
appellants. They were, that the court a quo erred in dismissing
the application when there was clearly no cause of action; and secondly, that
the deponent of Luxor's opposing affidavit had no authority to represent the
respondent since not only had no resolution of the directors of Luxor been
produced authorizing him to do so but in addition, one Mr Stirling, whom the
appellants alleged to be a director of Luxor, had instructed Knight Frank not
to proceed with the matter against the appellants. The second point was
taken in limine and I deal with it first.
THE AUTHORITY OF MR MOYO
It was submitted on behalf of Luxor
that Mr Moyo was not the litigant but had merely deposed to the
affidavit in terms of the High Court Rules as one who could attest to the facts
since he had represented Knight Frank as agent for Luxor in most of the
dealings with the appellants in connection with the lease.
In my view the criticism leveled
against the respondent in this regard is misplaced. The appellants served
the court application on the legal practitioners for Luxor. The legal
practitioners in question had been acting on behalf of Luxor in the past
proceedings between the parties. It is trite that a company being an
artificial person must be represented by a legal practitioner. All that
Luxor was called upon to do in response to the application filed by the
applicants was to file a notice of opposition in Form no. 29A together with one
or more opposing affidavits[2].
This is what it did. The notice of opposition was filed by its legal
practitioners. The appellants cannot blow hot and cold. By serving the
application on Luxor's legal practitioners they have accepted that Luxor is
represented by its legal practitioners in the litigation. They cannot now
deny that Luxor is the party litigating. The affidavit by Simon Moyo is
merely an accompanying affidavit filed in terms of Rule 233.
The court a quo was attacked
for accepting the affidavit sworn by Simon Moyo whereas it rejected the letter
of a Mr Stirling who, it is alleged, had instructed Knight Frank not to proceed
with the case against the appellants. The two positions can hardly be
compared for, as the learned Judge found, the letter had no evidential value
as it was not supported by an affidavit from Stirling confirming
that he had written the letter and had authority to do so. In any
event if Stirling did have such authority, it would have been a simple matter
to have withdrawn the action against the appellants since the letter is
dated 13 March 2013 two days after the summons commencing action was served on
the appellants.
WAS THE JUDGMENT ERRONEOUSLY SOUGHT
OR GRANTED?
The appellants' claim was based on r
449(1) (a) which provides:
“(1) The Court or Judge may,
in addition to any power it or he may have, mero motu or upon the
application of any party affected, correct, rescind or vary any judgment or
order-
- That was erroneously sought or granted in the absence
of any party affected thereby …”
The learned Judge found as follows[3]:
“A reading of the summons paragraph
(a) thereof shows that the parties entered into a lease agreement on 31
January 2005, and it shows that as at 25 January 2013 the Defendants were in
arrears to the tune of 11 127-55. Whilst the summons is not drafted in
the best of terms, it does state that the basis of the claim is due to the fact
that the Defendants are in arrears prompting Plaintiff to seek cancellation of
the agreement in question. The summons, even before one proceeds to read the
declaration, which is the one the Applicant seems to have problems with, can be
understood as to the claim that is being made by the Plaintiff and its
basis. It would have been proper for the applicant to have entered an
appearance to defend and either request for further particulars or file an
exception which the court was then going to deliberate upon, than to sit
back and take it that the court would consider the summons
defective and fatally flawed …”
She concluded that the application
ought not to have been brought in terms of r 449 but rather in terms of r 63 as
there was no error on the Court's part justifying the relief sought.
Rule 449 has been invoked, among
other instances, where there is a clerical error made by the Court or Judge[4];
where entry of appearance had been entered but was not in the file at the time
that default judgment was entered[5];
where, at the time of issue of the judgment, the Judge was unaware of a
relevant fact namely a clause in an acknowledgement of debt[6]
. Although for other reasons, mainly the inordinate delay in making
the application, the court in Grantully declined to grant the remedy
sought, it was of the view that had the clause been brought to the
attention of the Judge, the default judgment would not have been granted.
Where applicable, the Rule provides
an expeditious way of correcting judgments obviously made in error. It envisages
the party in whose absence the judgment was granted being able to place before
the Court the fact or facts which were not before the Court granting the
judgment. There is no need for the applicant to establish good and sufficient
cause as required by Rule 63.[7]
However, in each case, the error or mistake relied upon must be proved[8]
and in each case the court exercises a discretion.
Turning to the instant matter, I agree with the court a quo that the
appellants failed to prove that the judgment was erroneously granted.
In any event, r 449 is not mandatory
but confers upon the Court a discretion to act in terms thereof.
There being no allegation, or finding by this Court, that there was
an improper exercise of its discretion, this Court would be unable to interfere
with the judgment of the court a quo.
It is for the above reasons that
after the hearing we dismissed the appeal with costs.
HLATSHWAYO JA: I agree
MAVANGIRA AJA: I agree
Job Sibanda & Associates, appellant's legal practitioners
Messrs Dube-Tachiona &
Tsvangirai, respondent's legal
practitioners
[1] High Court Rules, 1971
[2] Rule 233(1) of the High Court Rules
[3] Page 3 of the judgment
[4] City of Harare v Cinamon1992 (1) ZLR 361
[5] Banda v Pitluk 1993 (2) ZLR 60
[6] Grantully (Pvt)Ltd 2000 1 ZLR361 (S)
[7] Banda v Pitluk (supra)
[8]
Gondo and Anor v Syfrets Merchant Bank 1997 (1) ZLR 201 