Peter DUBE V Parkview Weizman Sports CLUB

### Preamble
1
HB 230/20
HC 2027/19
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PETER DUBE

Versus

PARKVIEW WEIZMAN SPORTS CLUB

HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 24 SEPTEMBER AND 22 OCTOBER 2020

Opposed Application

N Mazibuko, for the applicant

Advocate C Nkomo, for the respondent

KABASA J:	This is an application for rescission of judgment brought in terms of Rule 449 or alternatively Rule 63 of the High Court Rules, 1971.

Rule 449 provides that:-

(1)	“The court or a Judge may in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order –

(a)	that was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)	………………”

The applicant seeks rescission of the judgment granted in case number HC 523/2019 on the basis that it was erroneously sought and erroneously granted in his absence.  The judgment affects him as it had the effect of having him ejected from the premises he was operating a business from.

The background to the matter is this:  The respondent issued summons against the applicant seeking his eviction.  The summons were issued on 12th March 2019 and served on the applicant on 13th March 2019.  The applicant entered an appearance to defend on 18th March 2019.  On 23rd March 2019 the applicant requested for further particulars and a statement of names in terms of Order 2A Rule 8A (1) of the High Court Rules.  The respondent obliged and furnished the names on 2nd April 2019, with the further particulars following on 4th April 2019.

On 4th April 2019 the respondent filed a notice to amend its summons, which notice the applicant took issue with.

The applicant had not yet pleaded when the contentious notice to amend the summons was filed.

On 7th May 2019 the respondent issued and served a notice of intention to bar, which notice the applicant again took issue with, as the wrangle over the notice to amend the summons had not yet been resolved.  The parties exchanged correspondence and on 14th May 2019 the applicant consented to the proposed amendment.  The notice of amendment was subsequently filed on 22nd May 2019.

On 13th June 2019 the applicant filed his plea.  The respondent effected a bar against the applicant on the same day based on the 7th May 2019 notice of intention to bar.

On 14th June the respondent’s legal practitioner signed an application for default judgment which was subsequently filed on 17th June 2019.  A default judgment was then granted in chambers on 20th June 2019.

The applicant became aware that judgment had been entered against him on 23rd August 2019 when his employees advised him that the premises were locked, effectively barring access into the premises.

On 27th August 2019 the applicant filed the application for rescission I am now seized with.  He prays for an order rescinding the default judgment granted in HC 523/2019 and for the respondent to file its replication to the applicant’s plea.  The application was vigorously opposed.

Mr. Mazibuko for the applicant argued that a rescission under Rule 449 of the High Court Rules calls for the satisfaction of 3 requirements.  These being:-

(1)	That the judgment was erroneously sought or granted.

(2)	That the judgment was granted in the absence of the applicant, and

(3)	That the applicant’s rights and interests are affected by the judgment.

Counsel referred the court to MAKARAU J’s (as she then was) judgment in Rudo Tiriboyi versus Albert Nyoni Jani and Another 2004 (1) ZLR 470 (H) where the learned Judge had this to say:-

“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests.  It is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.”

Turning to the facts in casu, counsel’s argument is that the respondent could not rely on the notice of intention to bar issued on the 7th May 2019 as such notice was overtaken by the subsequent notice to amend its summons.  After such amendment was eventually consented to, the respondent ought to have filed a fresh notice of intention to bar which it did not do, marking the first error.

Secondly, so counsel argued, the plea was filed on 13th June 2019 and there is nothing to show what came first, the plea or the effecting of the bar.  This being so because both the plea and the bar were date stamped and signed for by the same person from the civil registry.  The respondent’s legal practitioner signed the request for a default judgment on the 14th, a day after receiving the plea upon which such request for judgment was premised.

The judgment was therefore granted in error as a plea had been filed.

Thirdly, the claim in the summons was for eviction and holding over damages.  It was therefore not a claim for a debt or liquidated demand only as envisaged in Order 9 Rule 57.  The claim fell into the category provided for in order 9 Rule 58 as it was a claim other than for a debt or liquidated demand.  Judgment ought therefore to have been sought by way of a court application and not a chamber application.  An affidavit of evidence was also required as holding over damages were no less damages and so Rule 60 applied.

Rule 60 of the High Court Rules, provide that:-

“The court may grant judgment or make an order under Rule 58, 59, or 59 A without hearing any evidence, except in actions where the claim is for damages in which case evidence as to quantum only need be adduced.”

The issue therefore is whether there was indeed an error which needs to be corrected by rescinding the judgment.

Advocate Nkomo argued that there was no error as the applicant did not prove that the plea was filed before the bar was effected.  He also argued that the Judge who granted the default judgment had no issues with the application and so granted it.  Had he entertained any issues he would have directed that the matter be heard in open court.  The applicant, so argued Advocate Nkomo, ought not to be heard as he is barred and until such bar is uplifted, he has no right of audience.

I will quickly dispose of this last argument.  A default judgment was entered and it is that judgment the applicant seeks to be rescinded because it was granted in error.  What is the purpose of seeking upliftment of bar in these circumstances?

Rule 83 (b) provides that:-

“While a bar is in operation –

(a)	…

(b)	the party barred shall not be permitted to appear personally or by legal practitioner in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar.”

The suit in casu was finalized upon the granting of judgment.  Had there been any other proceedings before then the applicant would have been deemed barred.  But again the applicant’s argument is that such bar could only have been operational had it been shown that the plea was filed after the bar had been effected.  There was nothing to show that the bar came first and that being so how then can it be said the applicant was and is barred?

Advocate Nkomo relied on the decision by CHEDA J in Dewan versus Nyathi and 2 Others HB 84-04 where the learned Judge had this to say:-

“It is respondent’s argument that applicant should have applied for the upliftment of the bar before she made this application.  I find that this argument indeed made sense, but, however, the usual practice is that the application for rescission of judgment is made together with the application for the upliftment of the bar.  This is so because the necessary explanation regarding applicant’s default overlaps to a large extent with that of the upliftment of the bar.”

I respectfully hold a different view.  Where a default judgment has been entered and a party seeks to have that judgment rescinded, the vacation of that judgment allows for the ventilation of any other issues.  An application for upliftment of the bar where judgment has already been entered does not, in my respectful view, make much sense.

I therefore hold the view that the applicant cannot be non suited and the application for rescission be consequently struck off the roll as prayed for by the respondent, because an application for upliftment of a bar ought to have been filed first.

I turn now to the issue of what came first, the applicant’s plea or the effecting of the bar.  Advocate Nkomo’s argument was that the applicant failed to demonstrate that he filed the plea before the bar was effected.  It is trite that he who alleges must prove (UZ v Mutasa and Others SC 157-93).

In casu the applicant produced the plea which was filed and duly stamped on 13 June 2019.  There is no time indicated on that plea.  The same person who received that plea received the notice effecting the bar.

If the respondent is saying it effected the bar first it must show why it says so, without such proof, how can it be said the bar was first.  The applicant could very well have filed the plea first and by producing the plea duly signed and stamped, what more is expected from the applicant?

There was a suggestion by Advocate Nkomo that the civil registry has a book where pleadings filed are recorded and the time endorsed.  That bald assertion was but an assertion which was not substantiated, especially in light of Mr. Mazibuko’s contention that the registry only endorses time when an appearance to defend is filed and not a plea.

It would have been different had Mr. Mazibuko merely asserted that the plea was filed on 13 June 2019 without proffering proof.  By proffering proof in the form of that plea duly stamped, the applicant succeeded in showing that a plea was filed on 13 June 2019, the same day the bar was effected.

The issue then is, had the Judge who granted judgment been aware that there was a plea which had been filed on 13 June 2019 have proceeded to grant a default judgment?

In Grantully (Private) Limited and Another versus UDC Limited 2000 (1) ZLR 361, GUBBAY CJ made the point that a court is not confined to the record of the proceedings in deciding whether a judgment was erroneously granted.

It therefore cannot be said there was no error in casu because the plea was not on file and so TAKUVA J considered the papers before him and granted judgment on the basis that no plea had been filed and the applicant had therefore been barred oblivious of the existence of such plea.

The point is had he been made aware that a plea had been filed on that very day the bar had been effected but with nothing to show what came first, the learned Judge would not have granted the default judgment.  Therein lies the error as envisaged by Rule 449.

In Tiriboyi v Jani and Another (supra) MAKARAU J cited the case of Banda v Pitluk 1993 (2) ZLR 60 wherein a default judgment was granted against an applicant who had filed a notice of appearance to defend that was not brought to the attention of the Judge who entered the default judgment.  The procedural irregularity was on the part of the court and so a Rule 449 rescission was called for.

So it is in casu, the procedural irregularity was on the part of the court and ought to be addressed by rescinding the order granted in error.

As regards the fact that such judgment was granted in chambers and not in open court, I hold the view that:-

“Though the rules of the court are not an end in themselves, to be slavishly applied for their own sake, they are there to regulate the practice and procedure of the High Court and in general, strong grounds would have to be advanced to persuade the court or Judge to act outside them.” (Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

I respectfully associate myself with these remarks.  The rules of court ought not to be flouted without just cause, otherwise why have them?  (HPP Studios (Pvt) Limited v Associated Newspapers Zimbabwe (Pvt) Limited 2000 (1) ZLR 318)

I disagree with Advocate Nkomo’s argument that the “may” in both Rule 58 and 59 denotes discretion on the part of the Judge whether to grant the application in chambers or in open court.

Rule 59 on claims other than for a debt or liquidated demand provides that:-

(1)	“In cases where the plaintiff’s claim is not for a debt or liquidated demand only or where it is for a debt or liquidated demand only but argument in relation to any aspect of the suit is considered necessary, and the defendant has failed to enter appearance to defend within the period prescribed in the summons for entering appearance or having entered appearance, has been duly barred in default of plea, the plaintiff may without notice to the defendant set down the case for judgment on an appropriate day specified in Subrule (1) of Rule 223 and thereupon, subject to Rule 60, the court may grant judgment or make such order as it considers the plaintiff is entitled to …”

The “may” is permissive in so far as it allows the plaintiff to seek judgment should he be so inclined but when he chooses to; such application is made to the court and not to a judge in chambers.

I am equally not persuaded by Advocate Nkomo’s argument that the respondent proceeded in terms of Rule 57 because the claim was for a liquidated amount and so sought judgment through a chamber application.  The claim included holding over damages and therefore fall within the provisions of Rule 60.  There was no affidavit of evidence on how the holdings over damages were calculated.  I am therefore in agreement with Mr. Mazibuko that this was an error on the part of the court which ought to be corrected in terms of Rule 449.

Whilst the argument regarding the effecting of the bar premised on a notice of intention to bar which had been superseded by a notice to amend the summons raises an interesting legal point, I am of the considered view that the error in entering judgment when a plea had been filed disposes of this matter.  That error on its own entitles the applicant to the relief he seeks.  I therefore will not exercise my mind on the issue of the effect of the notice of amendment on the notice of intention to bar filed on 7th May 2019.

The applicant had sought rescission in terms of Rule 449 or alternatively Rule 63.  Both parties addressed the court on good and sufficient cause which should be shown in a Rule 63 rescission application.

In Austin Munyimi v Elizabeth Tauro 2013 (2) ZLR 291 (S) GARWE JA had this to say:-

“Further it is also established that once a court holds that a judgment or order was erroneously granted in the absence of a party affected, it may correct, rescind or vary such without further inquiry.  There is no requirement that an applicant seeking relief under Rule 449 must show good cause.” – Grantully (Pvt) Ltd & Anor v UDC Ltd, supra at p 365, Banda v Pitluk 1993 (2)ZLR 60 (H) 64 F-H, Mutebwa v Mutebwa & Anor 2001 (2) SA 193, 199 I-J and 200 A-B”

It follows therefore that the issue of good and sufficient cause is not relevant for a Rule 449 rescission.  I will therefore refrain from considering the parties’ submissions on the issue of whether the applicant was in willful default and the prospects of success.

The applicant has made a case for the relief he seeks under Rule 449.  Mr. Mazibuko asked for punitive costs to be awarded against the respondent and its legal practitioner, de bonis propiis, the one paying the other to be absolved.

Punitive costs should be sparingly awarded and ought to be reserved for those cases when the court has to show its displeasure at a party’s conduct.

In casu both parties felt strongly about the conduct of the other to such an extent that each one sought punitive costs against the other.

Whilst it can be said this matter could have been dealt with differently by both counsel, I am not persuaded to accept that either one’s conduct is deserving of censure.

A case has therefore not been made for an award of punitive costs let alone de bonis propiis as against counsel for the respondent.

In the result I make the following order:-

1.	The application for rescission of judgment in terms of Rule 449 be and is hereby granted.

2.	The respondent shall pay costs at the ordinary scale.

Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

Messrs Webb, Low & Barry Inc. Ben Baron & Partners, respondent’s legal practitioners