GOWORA J: On 1 August 2007 the
applicant herein, under Case No HC 4094/07 issued a summons against the
respondent herein claiming special damages in the sum of $4 102 500 000 in Zimbabwe dollars. The
respondent (defendant) entered an appearance to defend and the matter proceeded
in due to be set down for trial. A few days before the matter was due to be
tried on the continuous roll the defendant filed a consent to judgment as set
out in the summons and declaration. On 4 January 2009 judgment was entered for
the applicant (plaintiff) in accordance with the consent filed by the
defendant. The plaintiff has now launched these proceedings to have the
judgment entered in its favour set aside. The defendant opposes the
application.
The
founding affidavit sets out the facts leading to the granting of the judgment
as follows. The plaintiff filed summons under Case No HC 4094/07 alleging
breach of contract on the part of the defendant and seeking the payment of
special damages arising out of the breach.
The parties filed pleadings resulting in the matter being set down for a
pre-trial conference before a judge in chambers. At the pre-trial conference
the defendant offered to settle the matter by paying the sum claimed on the
summons. The plaintiff declined to accept the offer and its representative
advised that the plaintiff would be filing an amendment of the claim before the
trial. The deponent avers that the judge before whom the matter was set down
for the pre-trial conference raised the issue of the replacement of the bus for
the engine. The plaintiff's representative indicated that the issue would be
dealt with just before the trial. In the result the matter was referred to
trial on the understanding that the plaintiff would be filing an amendment to
its claim before the trial.
The matter was set down for trial
on 19 January 2009. On 13 January 2009 the defendant's legal practitioners
wrote to the plaintiff's legal practitioners to the effect that they had filed
a consent to judgment in terms of the summons. The letter which was served upon
the latter was received on 15 January 2009 as the date stamp thereon will show.
The consent to judgment was actually filed on 14 January even though it was
signed on 13 January 2009. On 15 January 2009 the plaintiff also filed an application
to amend its claim. However, unbeknown to the plaintiff the consent to judgment
that had been filed by the defendant on 14 January 2009 had been granted the
same day by the trial judge in chambers. The plaintiff's legal practitioners
unaware that judgment had been entered in their client's favour in terms of the
summons had written to the defendant's legal practitioners on 15 January 2009
responding to the letter of 13 January 2009. The response was to the effect
that it had always been the intention of the plaintiff to amend its claim,
which position the defendant and its legal practitioners were aware of. In the
event, the plaintiff would not accept the consent and the cheque tendered under
cover of the letter of 13 January 2009 was returned to the defendant.
A judgment obtained by consent,
may in terms of the rules of the High Court be set aside if the applicant shows
that there are good and sufficient grounds for it to be set aside. Order 8 R 56
provides:
“A judgment given by consent
under these rules may be set aside by the court and leave given to the
defendant to defend or to the plaintiff to prosecute his action, such leave
shall only be given on good and sufficient cause and upon such terms as to
costs and otherwise as the court deems fit.”
Over the years courts
have laid out general guidelines as to what would constitute good and
sufficient cause and three broad considerations have been accepted as the
factors to be taken into account when determining what would constitute good
and sufficient cause. These are:
(i)
The
explanation given by the applicant for his default;
(ii)
The bona fides of the application to rescind
the judgment;
(iii)
The
bona fides of the merits of the defence; See Duplessis v Hughes N.O. 1957 R&N 706 (H) and Georgias & Ano v Standard Chartered
Finance Zimbabwe 1998 (2) ZLR 488.
In my view the
minefield that confronts a judge when considering an application for rescission
of judgment was very succinctly stated by McNALLY JA in Deweras Farm v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 at 370A
as follows:
“I respectfully agree with the
dicta of INNES J in the oft cited case of Cairns Executors v Gaarn 1912 A.D. 186. In
particular his Lordship said, 'It will be quite impossible to frame an
exhaustive definition of what would constitute sufficient cause to justify the
grant of indulgence. Any attempt to do so would merely hamper the exercise of a
discretion which the rules have purposely made very extensive and which it is
desirable not to abridge.'.”
According to the
plaintiff the court herein has sufficient cause to set aside the judgment
because as the plaintiff complains, the defendant snatched at a bargain
resulting from the circumstances prevailing in the economy by consenting to
judgment in the sum on the summons when it well knew that the plaintiff intended
to amend its claim as the amount on the summons had no appreciable value and
that the plaintiff had indicated, through its legal practitioners, that it
intended to file an amendment of the claim. The refusal by the defendant to
have the judgment set aside is described by the plaintiff as 'snatching at a
judgment'
The procedure whereby
a judgment may be granted by consent is provided for in Order 8. The relevant
rules are 54 and 55 which provide as follows:
54. Requisites to consent to judgment
A consent to judgment shall be in
writing and be signed by the defendant personally or by a legal practitioner
who has entered appearance on his behalf. The defendant's signature shall be
verified by an affidavit by an affidavit made by someone other than himself, or
by the signature of a legal practitioner acting for him and not the opposite
party.
55. Judgment or Order
Upon filing a consent to judgment
with the registrar the plaintiff may make a chamber application for judgment
and thereupon may be given an order made according to such consent.
The plaintiff suggests that since
this was a judgment it did not seek the court has good and sufficient cause to
set the judgment aside. The plaintiff contends that the court could only have
granted the judgment upon application by the plaintiff and that in the absence
of such application the court did not have grounds for entering the judgment in
question. The plaintiff also contends that the judgment given did not discharge
the defendant's liability. Although there are no cases in point on this issue
counsel for the plaintiff has referred me to two case authorities, viz; Lambert v Mainland Deliveries [1977] ALL
ER 826 and Molete v Union National South British Conference Company
1982 (4) S.A. 178. In the former case, MEGAW LJ observed:
“……………………………………I would, however,
say this also: that it is a jurisdiction which ought to be exercised with very
great care, and it may well be that the cases in which it falls to be exercised
should only be rare. It is desirable that litigation, once apparently finished,
including litigation finished by means of payment into court which is either of
the full amount claimed or an amount accepted deliberately by a plaintiff,
ought not lightly to be allowed to be re-opened. But that there are such cases
where the court has such jurisdiction is, I should have thought, apparent from
the examples that were discussed during the argument before us. If, for
example, the claim put forward in the county court by a plaintiff was one which
contained a simple mistake as to the amount (as for example Lawton LJ suggested
in the course of argument by the omission of a '0' in the amount of the claim
making it 150 pounds instead of 1 500 pounds) it would be absurd
indeed if it were suggested that the defendant, having received the particulars
of the claim, should be in a position to then promptly pay 150 pounds into
court and then to say “The result under the rule, is that this action is stayed
and cannot be re-opened”. Another example, which I put forward during argument
is: supposing a plaintiff discovers, when it is nearly time for trial, that the
damage he has suffered is substantially increased by reason of some event over
and above what he has included in his particulars of claim. As a matter of
courtesy, he, or his solicitors, notify the opposing side that he will amend
particulars accordingly. Is it possible that the law is that in those
circumstances a defendant receiving information could promptly make a payment
in of the sum at that moment included in the particulars of claim and then say;
'Well that is the end of it. This action is stayed. You, the plaintiff, may not
amend your pleadings because the action is stayed and the court has no right to
remove the stay'? It cannot be so. There must be, as was said by Green MR,
cases in which the court has the power to set aside a stay.”
This
dicta was quoted with approval by O'DONOVAN J in Molete v Union Nat South Brit
Ins Co (supra). The judge went on to state thus:
“I
do not consider that an examination of the policy considerations underlying R
18 (1) is of assistance to the respondent in relation to the Supreme Court
Rules. There are, in my view, clear indications in R 34 that the unilateral act
of a defendant in making a payment into Court cannot have the effect of
terminating the proceedings. Acceptance by the plaintiff of the money paid is
essential before the original cause of action can be said to have come to an
end.”
A
perusal of our own High Court rules reveals that this is not an option that is
available to a defendant, who is instead, given an option to consent to the
judgment. Both counsel are agreed that the rules permit a plaintiff where the
defendant has filed a consent to judgment, to make a chamber application for
the judgment to be granted in its favour, and that the court seized with the
trial then entered judgment. The respondent concedes that the judgment, stricti sensu, was not entered in accordance
with the procedure set out in Order 8 of our rules of court. The question that
then must be asked is, whether this error is sufficient to constitute good and
sufficient cause. I agree with the contention by Mr Moyo that the judgment cannot be regarded as a nullity and even if
it were, this court sitting as a court of parallel jurisdiction with the court
that granted the judgment in the first place cannot possibly declare such a
judgment a nullity as that would amount to a review of that court. This court,
can however, set aside such judgment on the basis that good and sufficient
cause having been established.
The
respondent has sought reliance on the Washaya
v Washaya 1989 (2) ZLR 195 (H) in which case the court was concerned with
an application to set aside a judgment granted by consent where the legal
practitioner had apparently consented without instructions to do so from his
client. The court therein found that even though the legal practitioner might
not have been accorded instructions to consent nevertheless, under the common
law such consent was recognisable and would bind the affected party.
I
agree with counsel for the applicant that the circumstances surrounding the
judgment in the Washaya case are different and distinguishable from the present.
In the former case the court was dealing with a consent properly filed by a
legal practitioner and on the basis of which the court duly entered judgment in
favour of the applicant. The plaintiff therein actually prayed for judgment to
be entered in the amount in respect of which the defendant had consented to the
judgment. In the present case the plaintiff did not apply for the default
judgment and instead it was the court which mero
motu then granted judgment in favour of the plaintiff. This, presumably is
the error that the plaintiff is adverting to when it applies for the setting
aside of the judgment on good and sufficient cause. Can this court then
conclude that the judgment was entered in error and thus find that such error
constituted good and sufficient cause?
In
Sibindi v ARDA 1994 (1) ZLR 284 the
Supreme Court had to consider an appeal wherein the court had mero motu dismissed a claim when the
defendant had been in default on the date of trial and no application had been
made for the dismissal of the claim. GUBBAY CJ at pp287F-288C observed as
follows:
“I
am satisfied, however, that the learned judge erred in dismissing the action.
Indeed, Mr Mutendadzamera, who
appeared for the respondent, very fairly conceded that he was unable to support
that aspect of the judgment.
The
respondent was in default of appearance at the trial. It had not sought the
dismissal of the action brought against it. There was, therefore, no
application before the learned judge for the grant of such an order.
It
is well established that a superior court has an inherent jurisdiction to
dismiss an action. See Meyer v Meyer
1948 (1) SA 484 at 487; Broughton v
Manicaland Air Services (Pty) Ltd 1972 (1) RLR 350 (G) at 352B-C; 1972 (4)
SA 458 (R) at 460A-B; Schoeman en Andere
v van Tonder 1979 (1) SA 301 at 304G-H; Kuiper
& Ors v Benson 1984 (1) SA 474 (W) at 476H-477B. But I am unaware of
any decision in which that power has been exercised by the court mero motu and in favour of a defendant
who is in default. Invariably its exercise has followed upon the making of an
application and, I believe, correctly so.
An
examination of the Rules of the High Court appears to me to support the view I
take. They reveal that an action may be dismissed on application by the
defendant where the plaintiff has been barred from declaring or making a claim
(r 61); or on the ground that the action is frivolous or vexatious (r 75); or
for non compliance with an order compelling production of a document (rr 168
and 169 (4)) or requiring answers to an interrogatory (r 196). No provision is
made for dismissal of an action solely at the instance of the court or judge.”
I
have quoted in extent the dicta from the learned Chief Justice in order to put
into a proper perspective the power that a court, even a superior court of
inherent jurisdiction has. In terms of our rules, when a defendant files a
consent to judgment, the plaintiff may apply through the chamber book for
judgment in terms of the consent filed by the defendant. In casu, the plaintiff did not file an
application for the judgment to be entered. In effect therefore, the judgment
was not granted through consent by both parties to the dispute. It was in fact
granted by the court mero motu. It is
for this reason that the plaintiff wishes to have the judgment set aside
because it never consented thereto. The plaintiff has referred to two passages
in the Washaya judgment which I respectfully agree with. The first at p 197A-B
is stated in these terms;
“It
is stating the obvious, but it does require stating, that for such a judgment
to have any validity the essential ingredient of consent must be present. What
is more, the court must be satisfied as to the presence of consent. It is for
this reason that both in South
Africa and Zimbabwe
the governing rules prescribe in clear and peremptory terms the form a consent
to judgment must take.”
And later
at 201E-F;
“It
is clear, in terms of these precedents, common sense and justice, that once a
court is not satisfied that a party consented to judgment then that party is
entitled to restitutio in intergrum. Put differently, had the
court granting the judgment been aware that the party had not consented it
would not have acceded to the request that it enter judgment. The judgment
must, therefore be set aside.”
As
to the contention by the plaintiff that there was intent to amend the claim for
damages, the defendant has contended that the plaintiff wishes to amend its
claim to reflect United Stated dollars when the loss was suffered in Zimbabwe dollars. This,
in my view is an argument that should be considered by the court before whom
the application to amend the claim is placed. It is not I believe, an argument
that I can do justice to in an application for the rescinding of a judgment. It
is not an issue that is before me.
In
the premises, I find that there is good and sufficient cause to have the
consent judgment entered into on 14 January 2009 to be set aside. The parties
are directed to have the matter reset down for trial.
The
question of costs is an issue. The plaintiff had sought costs only in the event
that the application was opposed. The attitude of the respondent in seeking to
cling onto a judgment entered in circumstances where the plaintiff had not
sought the judgment and it had been entered to the plaintiff's detriment is
baffling to say the least. Although legal practitioners are primarily before
the court to advance the interests of their clients, it goes without saying
that their first duty is to the court. To defend a judgment that was obviously
entered in error and to the legal practitioners knowledge where the plaintiff
was clearly intent on seeking an amendment to the claim is not conduct that a
court can find to be helpful. This conduct resulted in the lengthening of
proceedings that could have been concluded a while ago. In my view, it is only
proper that the respondent be ordered to pay the costs of this application.
In
the result it is ordered as follows:
- The judgment of this court dated 14 January 2009 be and is hereby
set aside.
- The Registrar of this court is directed to have the matter set down
for hearing for trial.
- The respondent be and is hereby ordered to pay the costs of the
application
Gill, Godlonton & Gerrans,
applicant's legal practitioners
Kantor
& Immerman, respondent's legal practitioners
