The matters had been consolidated
into one by an order of the court granted on 16 January 2001.
The background to the matters is
that the first respondent was the Director of Prisons and the second respondent
was an Assistant Commissioner of Prisons. Prior to their leaving the prison
services, they had been in occupation of properties belonging to the Government.
When they left the service, the applicants instituted proceedings for their
eviction. The respondents defended the actions on the basis that Government had
offered to sell then the houses and they had accepted the offer. There was
therefore a binding Agreement of Sale between the two.
The trial commenced and was due
for continuation on 6 February 2002 at 10am before BLACKIE J. However, the
applicants' counsel did not appear for the hearing at the set down time leading
to the court dismissing the applicants' claim at 11:30am.
The applicants now seek an order
for the rescission of the judgments in terms of Rule 63 of the High Court Rules, 1971.
A
rescission of judgment under Rule 63
can only be granted where an applicant shows “good and sufficient cause” for
the rescission. The words 'good and sufficient cause' have been construed to
mean that the applicant must:
(a)
Give a reasonable and acceptable explanation for his/her default;
(b)
Prove that the application for rescission is bona fide and not made with the
intention of merely delaying the plaintiff's claim; and
(c)
Show that he/she has a bona fide defence to the plaintiff's claim.
(See
Songore v Olivine Industries (Pvt) Ltd
1988 (2) ZLR 210; Bishi
v Secretary for Education 1989
(2) ZLR 240 (HC); Ndebele v Ncube 1992 (1) ZLR 288 (S); Dewera
Farm (Pvt) Ld & Ors v Zimbabwe Banking Co-operation 1997 (2) ZLR 47 (H);
Zimbabwe Banking Corporation Ltd v
Masendeke 1995 (2) ZLR 400 (S); and Apostolic Faith Mission in Zimbabwe & Others v
Titus I. Murufu SC28-03).
The applicants' explanation for
the default is that their erstwhile counsel from the Attorney General's Office,
Mrs Matanda-Moyo, was appearing in the Supreme Court between 9am and 1300hrs.
She instructed Mr Majuru, from the same office, to contact the respondents'
counsel, Mr Chiutsi, and request him that the matter be stood down to 1415hrs.
Mr Majuru did so. She was surprised when she arrived at court at 1415 to be
advised that the claim had been dismissed in the morning. Mr Majuru deposed to
a supporting affidavit dated 26 March 2002 which was filed together with the
answering affidavit explaining the nature of his discussions with Mr Chiutsi.
Mr Chiutsi deposed to the supporting
affidavit to the opposing affidavit and denied that he had agreed that the
matter be stood down to 1415hrs. He explained that when he spoke with Mr
Majuru, his understanding was that an officer from the Attorney General would
come to court at 1000hrs and make the necessary application. The court waited
until 1130hrs and when no officer came from the Attorney General's office
dismissed the claim….,.
The first question before me is
whether or not the explanation advanced by the applicants for their default is
a reasonable and acceptable explanation.
It appears to me that the
explanation is indeed reasonable. The respondents did not challenge that Mrs
Matanda-Moyo had indeed been in attendance in the Supreme Court between 0900hrs
and 1300hrs. They did not dispute that Mr Majuru contacted Mr Chiutsi
explaining Mrs Matanda-Moyo's predicament. It is also not disputed that Mrs
Matanda-Moyo was more familiar with the matter and that it was desirable that
she continued representing the applicants. It is a recognised practice that the
proceedings before the Supreme Court take precedence over proceedings in lower
courts. The explanation that Mrs Matanda-Moyo had to appear before the Supreme
Court first is reasonable.
The Attorney General's office
might have been negligent in not sending an officer to apply for the matter to
be stood down for the afternoon, but, it cannot be said that it took a
conscious decision to refrain from appearing. Further, the negligence, in my
view, was not so gross as to amount to wilfulness. In Zimbabwe Banking Corp v
Masendeke 1995 (2) ZLR 400 (S), McNALLY JA observed…., that -
"The wilfulness of a default
is seldom, if ever, clear-cut. There is almost always an element of negligence,
and the question arises whether it was gross negligence and whether it was so
gross as to amount to wilfulness. And in coming to a conclusion there is a
certain weighing of the balance between the extent of the negligence and the
merits of the defence.”
(See also V Saitis & Co (Pvt) Ltd
v Fenlake (Pvt) Ltd 2002 (1)
ZLR 378….,.).
Given the actions taken by both
Mrs Matanda-Moyo and Mr Majuru to ensure that Mrs Matanda-Moyo's predicament
was brought to the attention of the respondents and the court, the failure to
send an officer to apply for the matter to be stood down does not, in my view,
amount to gross negligence. The applicants cannot therefore be denied the
relief that they seek.
I believe it is, therefore, not
necessary for me to determine whether or not Mr Majuru's supporting affidavit
is properly before the court. The affidavit does not take the matter any
further.
Turning to the second issue for
determination, it appears to me that the conduct of the applicants' legal
practitioners described above indicates that the application for rescission is bona
fide and has not been made with the intention of merely delaying bringing the
matter to finality.
The legal practitioners took all
steps possible, in my view, to ensure that the matter be prosecuted. They
contacted the respondents' legal practitioner to have the matter stood down to
the afternoon. Mrs Matanda-Moyo attended court in the afternoon at the time she
believed the matter was to continue.
Further, the fact that the applicants had prosecuted the matter to the
extent that evidence had already been led showed a willingness on their part to
prosecute the action to its final conclusion. The application for rescission
cannot therefore be said to have been filed to delay the finalisation of the
matter.
Regarding the bona fides of the application for rescission, the
respondent had alluded to evidence that had been led before the action was
dismissed as indicating that there was indeed an offer and an acceptance. It
had been my view at the time when the parties concluded their submissions on this
application that it was necessary that I be availed the record of proceedings
to enable me to determine the bona fide of the applicants' action.
The record has not been
forthcoming.
I am, however, now of the view,
that, given the fact that the matter had not been completed, the availability
of the record would not assist the court in determining the bona fides of the applicants' claim. In V
Saitis & Co (Pvt) Ltd v Fenlake (Pvt)
Ltd 2002 (1) ZLR 378…., CHINHENGO J,
after examining the cases on what constitutes good and sufficient cause,
observed as follows -
“Each element of the test of good
and sufficient cause may be decisive on its own in any particular case but this
does not mean that it becomes the only element or that the court has lost regard
of the other elements of establishing good and sufficient cause.”
I am satisfied with the explanation that the applicants
have proffered for the delay and that the application for rescission is bona
fide. It is my view that the applicants' have established good and sufficient
cause why the application for rescission should be granted. It is therefore not
necessary, in my view, for me to determine the bona fide of the applicant's
claim.
In the result, it is ordered that:
1. The default judgment entered against the applicant on
6 February 2002 be and is hereby rescinded.
2. The respondents shall
pay costs of the application.
