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hereby rescinded.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.
Let
me comment briefly on the distribution of the matrimonial estate as
per Annexure B to the order granted in default. Annexure B is similar
to Annexure 'B' also attached to the respondent's declaration
in the main action. In terms of Annexure B, the respondent was
awarded a total of thirty five (35) movable assets including two
motor vehicles, Honda Oddysey and Honda Prelude, water bowzer and a
trailer. The applicant was awarded a total of forty (40) movable
assets including a Mazda B2500 single cab truck and business
interests in the Mabvuku Family Clinic and Maternity Home.
In
respect of immovable property, the respondent was awarded two
immovable properties, namely, the matrimonial home, No.28 Churchill
Avenue, Malborough, Harare and a four roomed house in Chipatiko
Village in rural Domboshava. The respondent was also awarded business
interests in the company known as Germini Medicines Supplies (Pvt)
Ltd trading as Pharm Chem. The applicant was awarded also two
immovable properties, being No.1034 Shambare Street, Old Mabvuku,
Harare and a seven (7) roomed house with several out-buildings in
Zimbwa Village in rural Domboshava….,.
I
now turn to the merits of the application.
THE
LAW
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.
Counsel
for the applicant,
in argument, also placed reliance in section 9 of the Matrimonial
Causes Act [Chapter
5:13]
which provides as follows;
“9
Variation, etc of orders
Without
prejudice to the Maintenance Act [Cap
5:05]
an appropriate court may, on
good cause shown,
vary suspend or rescind
an order made in terms of section 7 and subsections (2), (3) and (4)
of that section shall apply mutatis
mutandis,
in respect of any such variation, suspension or rescission.”…,.
The
above cited provision became more relevant in view of the applicant's
position that she has no qualms with parts of the order granted in
default by CHITAKUNYE J in relation to decree of divorce in terms of
section 5 of the Matrimonial Causes Act [Chapter
5:13]
and the order in relation to custody of the two minor children.
Counsel
for the applicant argued that the rescission sought is a partial
rescission of the order granted in default in relation to the
division of the matrimonial estate in terms of section 7 of the
Matrimonial Causes Act [Chapter
5:13].
In
my view, this argument can only be relevant if this court is
satisfied that there is good and sufficient cause or that good cause
has been shown justifying the rescission of the default judgment.
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.
2.
The bona fides of the applicant
The
applicant's sincerity in the matter is very doubtful. As already
explained, besides instructing attorney to file or enter an
appearance to defend the applicant does not explain if she took any
further action in this matter like instructing her attorney to file a
plea or to make any follow ups on such a matter of importance to her.
After filing the application for rescission of judgment, in June
2011, and after her erstwhile legal practitioner renounced agency,
the applicant simply did nothing in ensuring that the matter is
prosecuted. In fact, it is common cause that it is the respondent who
had to push for the matter to be heard by setting the matter down.
The applicant just filed an application for rescission and abandoned
as it were. Even after the matter had been set down, on 1 November
2011, it had to be postponed on account of the applicant who engaged
her current legal practitioner of record who was not available. It is
therefore doubtful if this application is made in good faith. This
point is more pertinent when one considers the next aspect which
relates to the prima facie strength of the applicant's case.
3.
Prospects of success as prima facie strength of this case
The
applicant, in paragraph 4 of her founding affidavit, objects to the
award made in respect of the matrimonial house, No.28 Churchill
Drive, Malborough, Harare and the family businesses, that is, the
clinic in Mabvuku and the medical supply companies. The applicant
avers that this property was jointly acquired by the parties and the
respondent cannot unilaterally determine how the property should be
shared. The applicant's view is that the court should revisit this
issue so as to take into account her own contribution to the
matrimonial estate.
The
applicant also indicates that she would want the issue of maintenance
of the two minor children to be revisited without explaining in what
regard.
In
my view, the applicant does not explain why the order granted in
default should be deemed unfair. The applicant does not explain how
the matrimonial estate should have been distributed.
The
complaint raised by the applicant, in relation to the maintenance
order granted by the Magistrates Court being incorporated in the
Divorce
Order
is difficult to appreciate as the applicant does not explain why she
did not appeal against the maintenance order at the time it was
granted or seek an upward variation of the order. The applicant does
also not explain at all why she has not enforced her rights in terms
of the Maintenance Act [Chapter
5:09]
if the respondent is not complying with the maintenance order. I am
surprised that Bruce Mujeyi, in his supporting affidavit, would also
raise this issue of non-compliance with the maintenance order by the
respondent! One would expect him to be better informed on how to
enforce compliance with such an order rather than to seek a
rescission of the relevant order.
I
have already alluded to how the matrimonial estate was distributed as
per Annexure B to the Divorce
Order.
The applicant would have no qualms with the decree of divorce, the
custody of minor children, and distribution of most of the movable
property. The division of the matrimonial estate, at divorce, is in
accordance with section 7 of the Matrimonial Causes Act [Chapter
5:13].
The
factors which the court has to consider are listed on section
7(4)(a)–(g) of the Matrimonial Causes Act [Chapter 5:13]. The only
factor the applicant has alluded to is her alleged contribution to
the matrimonial estate. The applicant does not explain how the order
granted did not take this into account in view of what was awarded to
both parties. The applicant only made a bold and unsubstantiated
assertion that the division of the matrimonial estate was unfair and
unjust without explaining how with specific reference to Annexure B.
These omissions in the applicant's founding affidavit are fatal as
such averments are crucial as her application is premised within the
four corners of the founding affidavit.
There
is therefore nothing in the applicant's founding affidavit to show
that the matrimonial estate was not justly and equitably shared
taking into account the provisions of section 7 of the Matrimonial
Causes Act [Chapter
5:13].
All
in all, the applicant did not address her mind to the fairness or
otherwise of the distribution of the matrimonial estate as per
Annexure B. In my view, both the movable and immovable property was
shared in almost equal proportions between the parties. The applicant
admits that the marriage has irretrievably broken down and that the
decree of divorce is in order.
The
applicant accepts that it was proper for her to be awarded custody of
the two minor children.
The
issue pertaining to the current maintenance order can be dealt in the
context of other domestic remedies available.
The
applicant raises no issue with the respondent's rights to
reasonable access to the minor children.
No
wonder why counsel for the applicant
conceded
that he was now seeking a partial rescission of the order contrary to
the order initially prayed for. I am therefore of the view that the
applicant has not shown, on a balance of probability, any prospects
that the matrimonial estate may be distributed in a different manner
if the default judgment is rescinded.
The
applicant did not even explain why it would be unfair to award the
matrimonial house to the respondent who is residing in Zimbabwe while
she is resident in the United Kingdom with the children.
Lastly,
counsel for the applicant
raised
the issue that I should rescind the Divorce
Order
granted in default on account of the fact that there was no personal
service effected upon the applicant in terms of Rule 272(2)(b) of the
Rules in relation to the notice of set down. Reference was made to
the case of Le
Roux v Le Roux
1957
R & N 831 (SR)…, in which BEADLE J…, discusses the effect of
the non-compliance with the provision of a similar provision to Rule
272(2)(b) of the Rules. See also Butler
v Butler
1951 SR 122.
It
is considered view that Rule 272(2)(b) of the rules requires that the
notice of set down shall be served upon the defendant and that the
court can only proceed if it is satisfied that personal
notice
of the defendant has been drawn to the fact that the matter had been
set down for trial or that for good and sufficient reason the giving
of personal notice is impracticable.
In
casu,
default judgment was granted on account of non–compliance with Rule
272(1)(b) – failure to enter a plea. In addition to that the
respondent complied with Rule 272(2)(b) by serving notice of set down
on the applicant's legal practitioners of record.
It
would be absurd, in my view, where, like in this case, the applicant
was represented and had given her address of service as that of her
legal practitioners to expect the respondent to serve the notice of
set down upon both the applicant and also on her legal practitioners
of record.
In
casu
the
applicant, who is resident in the United Kingdom, had given an
address of service in Zimbabwe which is of her legal practitioners of
record. One may therefore ask where in the United Kingdom would the
respondent have been expected to serve the notice of set down and
would such notice be proper when it is not given at the applicant's
address of service. I am satisfied that the court which granted the
default judgment was properly satisfied that the notice of set down
had been drawn to the personal notice of the applicant as it was
served upon her legal practitioners of record at her instance. The
manner in which Rule 272(2)(b) is drafted, in my view, is different
from Rule 39(1) of the Rules.
I
am therefore satisfied that the judgment was granted in compliance
with Rule 272(2)(b) of the Rules.
It
is my finding that the applicant has failed to establish good and
sufficient cause to warrant the rescission of this default judgment
granted on 19 May 2011.
Accordingly,
the application is dismissed with costs.
