John Josias Moyo and Brian Moyo and Digilan Investments (Pvt) Ltd v Barbra Lunga (In her capacity as Liquidator of Spoornet Investments (Pvt) Ltd)

### Preamble
1
HB 258/20
HC 2930/15
---------


JOHN JOSIAS MOYO

And

BRIAN MOYO

And

DIGILAN INVESTMENTS (PVT) LTD

Versus

BARBRA LUNGA

(In her capacity as Liquidator of

SPOORNET INVESTMENTS (PVT) LTD)

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 18 JULY 2018

Opposed Application

E Mlalazi, for the applicants

Professor W Ncube, for the respondent

MABHIKWA J:	This was an opposed court application for the rescission of a default judgment made in terms of Order 9 Rule 63 of the High Court Rules 1971.  I dismissed the application and below are my reasons for the dismissal.

The applicants contended that on 13 April 2013, respondent, (who is the plaintiff in HC 3534/12) got a default judgment in case No. HC 296/13 by way of summary judgment.  It was the applicants’ contention that they only became aware of the said judgment on 20 October 2015 when a notice to attach and sell their immovable property was found at their place.  They claim that the summary judgment application, which led to the judgment sought to be rescinded had not been duly and properly served upon themselves nor was it served at their commonly known address in Bulawayo.  Rather, it was claimed that the certificate of service showed that service was done at No. 2 Benatar Way, New Alexandra Park, Harare which is not and has never been the applicants’ address for service nor their place of residence.

The applicants also alleged that the respondent (also the applicant in HC 296/13) got the judgment by fraud and misrepresentation of facts.  It was alleged that respondent claimed to be the legal owner of Stand No. 1419 by virtue of a “lease to buy” agreement with the Beitbridge Town Council when that was incorrect.

Thirdly the applicants contended that there are material disputes of fact that need to be resolved at trial particularly the ownership of the land in question because the order granted at the request of the applicants literally perpetuates an illegality.  The applicants say at the time the application for summary judgment was made, their plea had already been filed.  The claim is that in the application, the filing of the plea had been “deliberately concealed to the court.”  It was also finally argued that there had been an element of deliberate service of the papers at a wrong address in order to snatch judgment.

On the merits in brief, the applicants alleged that the respondent did not produce proof by way of lease with option to purchase in the claim for the ownership of the property.  They alleged that what was produced was only a copy of the agreement signed by one MacGuilvray and not anyone from the Beitbridge Town Council or ratified by the Council.

It must be said though at this stage, that the said copy, filed by the applicants is initialed by the parties that signed on the pages.  It is a photocopy.  At the last portion where the council officials should sign there is no full name for the Chief Executive Officer.  However the date the agreement was executed is properly dated as the 29th day of May 2004.  The lessee’s signature is present.  I assume from the nature of the agreement that the lessor was represented by the Chief Executive Officer.  He simply chose to endorse his signature and perhaps not his full names.  In any event, it is not shown what should be endorsed on top of the dotted lines.  The signature of the lessee’s witness was also endorsed.  The lessor’s side can hardly be said be a problem for the respondent neither is it for the applicants to complain about and attempt to capitalize on.  If anything, it is the Beitbridge Council that should complain if there is reason to complain over that document.

The respondent vigorously opposed the application.  A point in-limine was raised.  It was agreed that the parties would deal with the point in limine and go on to address the merits at once.  The court would also deal with the judgment at once depending on whether it ends on the point in limine or on the merits.

The judgment sought to be rescinded was granted per MAKONESE J on 11th April 2013.  This matter was heard about 6 to 7 years after the said judgment.  In fact one of the complaints by the respondent was that the application had long been overtaken by events in that the property in question had been sold way back on 6 November 2015.  It was pointed out that Stand No. 3377 had been sold in execution to satisfy this same judgment, and that it was rather too late for the applicants to be seeking the rescission of a judgment that had already been executed.  There must be finality to litigation.

The Law relating to Rescission of Judgments

In an application for rescission of judgment granted in the absence of a party, the applicant must show, on the balance of probability, that he was genuinely unaware of the date of hearing.  In Uzande v Katsande 1988 (2) ZLR 47 (HC) default judgment had been entered against the applicant in favour of the respondent because of the applicant’s non-appearance at court on the date set down for trial.  He sought rescission of the judgment alleging his legal practitioner who had renounced agency before the trial date misinformed him of the set down date.  It was held that an allegation by a litigant that he was unaware of a pending hearing date would justify restitution only if he could establish a “supremely just cause of ignorance free from all blame whatsoever.”  The first hurdle is to show that prima facie, he was blameless.  The second hurdle is to establish, on a balance of probabilities, the truth of his allegation.

Also in Challenge Auto (Pvt) Ltd & Ors v Standard Chartered Bank Zimbabwe Ltd 2003 (1) ZLR 17 (H), the applicants sought rescission of a default judgment after they were barred for failing to file a plea.  They blamed their former legal practitioners for the default.  They however did not explain how the practitioners were to blame in failing to file the plea.  They also did not file an affidavit from the legal practitioners explaining or taking the blame for the non-compliance.  The application for rescission was filed more than two and half months after the applicants learned about the judgment.  They in fact had made a part payment in satisfaction of the judgment.  The court held that it was necessary for the applicants to file an affidavit from their former legal practitioners accepting the blame for the default because of their tardiness.  It was also held that what the court takes into account in applications for condonation for non compliance with the rules are; (a) the degree of non compliance, and the explanation thereof; (b) the prospects of success on the merits; (c) the importance of the case; (d) the convenience of the court and (e) the unnecessary delay in the administration of justice.  It was also held in Challenge Auto (supra) that apart from an attempt to blame their former legal practitioners, the applicants had advanced no facts whatsoever justifying their dilatoriness.  Even on the merits it was held that they had no prospects of success.  They had not shown good and sufficient cause for the court to exercise its discretion in their favour to condone the late filing of their application.  In casu, another  point in limine has been made that the application itself is improperly before the court.  This is so because the applicants have not even accepted that they were out of time.  They simply pushed their knowledge of the judgment to 20 October 2015 and then filed their application with no accompanying or preceding application for condonation.  I note the comments and findings of MAKARAU J (as she then was) on simply filing papers like an application or heads of argument of time with no accompanying or preceding application for condonation in Vera v Imperial Asset Management Co. 2006 (1) ZLR 436.

Also in Wilber Maonyara v CBZ Bank Limited & Anor HH 91-15 MATHONSI J (as he then was) pointed out that;

“Condonation is forgiving a wrong committed by a litigant who regrets it and, having repented, he seeks to be given another chance.  There must therefore be an explanation given for inaction which is worthy of the court’s forgiveness.”

The learned Judge went on to explain that forgiving the unrepented, who does not accept their wrong is as meaningless as “making pictures on water.”

In casu, although effectively blaming their former lawyers for not seeing the service for the application for summary judgment, the applicants clearly in my view, avoided practically doing so.  This is because;

(a)	they knew the legal practitioners did the right thing in law by providing their last known address, when renouncing their agency.

(b)	that they (applicants) would have had to obtain an affidavit from the said former legal practitioners accepting the blame for tardiness and this they were unlikely to get.

Before coming to the merits of whether the applicants were in willful default, or whether they can explain the delay or whether they can show on a balance of probabilities that there is good and sufficient cause for the court to exercise its discretion in their favour, the court first has to determine on the points in limine that the application is in fact improperly before the court for non-compliance with the court rules.  If the court upholds the point in limine, that is the end of the matter.

On 4 February 2013, Messrs G N Mlotshwa & Company, who were the legal practitioners for the applicants renounced agency and filed such notice with the court and the defendant’s lawyers.  In that renunciation of agency, the legal practitioners indicated that;

“The defendants’ last known address for service is 2 Benatar Way, New Alexandra Park, Harare”

In so doing, the legal practitioners had done what they are obliged by law to do.  One cannot see how they can be faulted.  It is common cause that the summary judgment matter was set down for hearing before MAKONESE J on 11 April 2013.  It is also not disputed that the summary judgment application was served at that address.

I am inclined to agree with the counsel for the respondent’s argument that it is now settled law in our jurisdiction that an application for rescission of default judgment in terms of Rule 63 (1) Order 9 of the High Court rules of 1971 should be done  ‘not later than one month” after he has had knowledge of the judgment.  As already stated above, the applicants have not refered to or blamed their former legal practitioners at all.  But in the process, they have also not explained at all where the former legal practitioners got the last known address from which they filed with the court and where the applicants were accordingly served for the summary judgment application.  This led to the default.Instead, the applicants claim in their founding affidavit (paragraph 10:1) that either the respondents or their correspondence lawyers, Messars Gill, Godlonton & Gerrans made a “mistake by effecting service on the wrong process upon the wrong people at a wrong address for service.”  Legally, this court is convinced that the applicants should be presumed to have been properly served at No. 2 Benata Way, Alexandra Park, Harare.  Applicants would therefore legally be presumed to have had knowledge of the judgment two (2) days after it was entered on 11 April 2013.

Secondly and in any event, at paragraph 9 of his founding affidavit, 1st applicant states that whilst the summary judgment application was served at No. 2 Benatar Way, New Alexandra Park, Harare, this has never been their place of business.  It is not known to them at all to date and has never been their address for service and that it was never furnished to the respondent.  At paragraph 10 of the founding affidavit, they again state that the correct address for service which was known was the house in Nkulumane where they stayed and which the Deputy Sheriff in Bulawayo should have gone to rather than the Harare address.

However on 14 May 2013, the Deputy Sheriff attempted service of the writ of execution at the said Nkulumane house No. 3377 Nkulumane, Bulawayo on 14 May 2013.  The proof of service is filed of record and marked Annexture “BB”.  It reveals that the Sheriff’s office found one Thandolwenkosi who knew the then 1st respondent Josias Moyo and that he was at Beitbridge.  Again the applicants must have known at the time, of the judgment and impending sale.

Thirdly, on 23 September 2015 in a letter to the applicants which they have themselves attached as Annexture “B2”.  The respondent in casu also filed the notification on Annexture “CC.”  The said Annexture was a notification to Josias Moyo and others of No. 3377 Nkulumane, Bulwayo that he (the Sheriff) had received instructions from Messrs Mathonsi Ncube Law Chambers legal practitioners to sell the property in execution of the judgment debt.  Again, the applicants claim not to have seen this notification.  In fact, the notification stated that enclosed therein was a copy of the notification that would appear shortly in the Government Gazette together with the conditions of sale for the applicants’ information as the then defendants.  I am inclined therefore, to agree with counsel for the respondent that in paragraph 10 of his founding affidavit, 1st applicant states that process should have been served at No. 3377 Nkulumane.  But the writ of execution against that same property was served by the Sheriff at that address on 14 May 2013.  A letter to the 1st defendant and the others advising them of the intended sale of No. 3377 Nkulumane was also served at that address.  Yet the applicants, continue to say they did not know of the judgment leading to the sale in execution for all that period from 11 April 2013 to 20 October 2015, a period of two and a half years.

Fourthly, I agree that even if the other notifications were to be ignored for a moment, at the very least, the applicants would have known of the judgment by the last week of September 2015.

I am satisfied that all along from April 2013 to the end of September 2015 the applicants knew of the judgment and did nothing about it.  On the day of the sale on 6 November, 2015 reality dawned on them when the property was being sold.  That was exactly the day the founding affidavit was executed and the application was filed.  Suddenly, when the sale takes place, they happen to know about it.  It is clear that when the property was to be sold in execution, the applicants simply shifted their knowledge of the judgment to a date that would be safe to allow them to avoid the tedious and onerously long route of applying for condonation first.  However, court rules are court rules. They should be followed.  This court cannot improperly exercise its discretion either.

As stated by MAKARAU J (as she then was) in Vera v Imperial Asset Management Co.  supra, those who do not comply with the rules should not expect the court to improperly and  very readily exercise their discretion in terms of Rule 4C in their favour.  Instead the court may exercise its discretion to grant judgment.

As already stated at the beginning of the application, there would be no need to proceed to the merits of the application.  In any event, and as stated in the Vera v Imperial Asset case (supra) by MAKARAU J I would have still dismissed the application for lack of merit and for failure to show a valid and sufficiently meritorious defence to the main claim.

The point in limine is accordingly upheld and the application is dismissed.

Messrs Manase & Manase c/o Dube-Banda, Nzarayapenga and Partners, applicants’ legal practitioners

Mathonsi- Ncube Law Chambers, respondent’s legal practitoners