Daniel Mabonga v Runyaradzo Mashozhera

### Preamble
1
HB 248/20
HCA 113/15
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DANIEL MABONGA

Versus

RUNYARADZO MASHOZHERA

IN THE HIGH COURT OF ZIMBABWE

BERE & MAKONESE JJ

BULAWAYO 6 NOVEMBER 2017 & 5 OCTOBER 2020

Civil Appeal

Appellant in person

T. Militao, for the respondent

BERE J:	After reading documents filed of record and hearing submissions by the appellant who was a self actor and the respondent’s counsel we dismissed the appeal with costs.  An indication was made that the reasons would be availed.  Here they are.

This is an appeal against the whole judgment of the Provincial Magistrate sitting at Gweru Magistrates’ Court which dismissed appellant’s application for condonation for the late filing of his application for default judgment of 26 may 2015.

The factual background

On 2 July 2015, the appellant sought an application for rescission of a judgment that had earlier on been granted against him in default.  There was evidence that on this date the appellant’s name was called thrice and that he did not respond leading to the dismissal of his application in default again.

In filing the application before the court a quo, the appellant was inter alia confronted by the terrible delay in filing his application.  The appellant’s explanation was that he had filed his application out of time due to his ignorance of court procedure which he attributed to lack of guidance which in turn led him to file not one but numerous defective applications.

In paragraph 8 of his founding affidavit there was no attempt at all by the appellant to explain the bona fides of his defence in the main matter except to make a bald assertion that he had a good defence.

In dismissing the application for rescission of the default judgment, the court a quo reasoned inter alia that the appellant had not even bothered to disclose to the court when he became aware of the judgment entered against him.  The court was also concerned that in seeking to have a judgment entered against him in default he had defaulted again on the hearing date.

It also turned out that the appellant had sought the rescission of a judgment which he had also sought appeal to this court.

Faced with this confusion that was manifest in the applicant’s case the court a quo dismissed the appellant’s application with costs.

The appellant’s case in this court

In his appeal before this court the appellant for the first time mentioned that “a vis major” caused his unavailability in the court a quo when his name was called.  The appellant also raised new facts which are not borne out by his founding affidavit in the court a quo.

The respondent’s case

Mr Militao who appeared for the respondent sought to abide by his filed heads which were largely a regurgitation of his arguments in the court a quo, that the appellant had no arguable case given his poor showing.  He argued that the appellant had not demonstrated a seriousness of intent in bringing this appeal.

Assessment of the submissions

After hearing the appeal we were unanimously convinced that the appeal had no merit if regard is had to the brief but sound reasoning of the court a quo.

In particular we were left in no doubt that it was not sound for the appellant to not once, but on numerous occasions as admitted by him to bungle the procedure in the lower court merely because he was not familiar with court procedure.

To compound it the appellant was trying to have a judgment rescinded which judgment he had appealed against under case number HCA 70/15 which fact was not disclosed in his founding papers.

Our courts always frown at a party who deliberately fails to disclose vital information especially if that non-disclosure has a bearing on the case under consideration.   See Anabus Servious (Pvt) Ltd vs Minister of Health N.O. and Ors where NDOU J remarked as follows:

“The court in my view, always frown on an order, whether ex parte or not, sought an incomplete information.  It should discharge material non disclosures, mala fides or dishonesty.”

That the appellant on numerous occasions continued to do the wrong things where time was running out against him can never be a defence or justification because there must be finality to litigation and ignorance of procedure in these circumstances cannot be a defence.  As observed in the much celebrated case of Ndebele v Ncube

“.… the law will help the vigilant but not the sluggard”

The appellant did not help his cause by failing to explain the prospects of success.  It is not for the court to speculate or labour on such an issue.  The papers must be clear, they must speak for themselves.

It was for these reasons that we dismissed the appeal with costs.

Makonese J ……………………………….. I agree

Militao Legal Practitioners, respondent’s legal practitioners