Arthur Shingai Mutasa and Morayford Investments (Private) Limited v Hope Tembo

### Preamble
1
HH284-13
HC 613/12
ARTHUR SHINGAI MUTASA
and
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ARTHUR SHINGAI MUTASA
and
MORAYFORD INVESTMENTS (PRIVATE) LIMITED
versus
HOPE TEMBO

HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 15 July 2013, 11 September 2013

Opposed Application

T.D. Muskwe, for applicants
B. Pesanai, for respondent

CHIGUMBA J: This is an application for rescission of default judgment brought in terms of Order 9, rule 63, and sub rule 1 of the Rules of the High Court of Zimbabwe 1971. The applicants also seek an order that they be allowed to file their plea within ten days of the date of the order, and that each party bears its own costs.

At the hearing of the matter, I dismissed the application with costs on a preliminary point that I had requested the parties to address me on and indicated that my reasons for so doing would follow in due course. These are the reasons.

The background to this matter is that the second applicant and the respondent entered into a lease agreement on or about 24 June 2009, in regards to the property known as number 38 Malta Road, Braeside, Harare. The first applicant is a director of the second applicant who was sued in that capacity by the respondent in the main matter. The lease agreement expired on 30 June 2010 and was not renewed. The second applicant avers that it is currently a statutory tenant. The agreed rentals were US$750,00 per month, and applicants contend that the respondent unilaterally increased the rent to US$1 000,00, contrary to the rent regulations which require that a set down procedure be followed before a landlord can effect an increase in rentals. The second applicant avers that the respondent misled it into believing that the parties could resolve their differences amicably, and that it relied on indications from respondent’s legal practitioners of record that settlement negotiations were being well received and considered by the respondent.


Second applicant avers further, that at the time that default judgment was obtained on 7 December 2011, it had cleared its rent arrears and there was no basis on which judgment could be sought or obtained.

The second applicant avers that it became aware of the judgment obtained against it in default on 13 December 2011 when its property was attached by the Deputy Sheriff in execution. The application for rescission of judgment was filed of record on 19 January 2012. It was admitted that there were outstanding rates, water and electricity bills, and in its defence second applicant submitted that these bills were not solely attributable to the period of its tenancy, as respondent was well aware, but partially attributable to its previous tenant, a company known as Miprical Enterprises.

In the opposing affidavit, respondent raised a preliminary point that the applicants had filed their application for rescission of judgment outside of the stipulated time period provided by rule 63(1). In regards to the merits of the matter, respondent admitted that second applicant was a statutory tenant. Respondent contended that second applicant had failed to pay rent, rates, and water and electricity bills in terms of the lease, resulting in the issue of summons to recover the same, as well as eviction from the leased premises. Respondent denies effecting a unilateral or illegal rent increase, and avers that the increase in rent was occasioned by second applicant’s take over of a cottage at the leased premises, which had previously been occupied by another company called Miprical Enterprises, in November 2009. Respondent admitted that the parties tried to resolve their differences amicably, and stated that these negotiations failed because the second applicant failed to honor several assurances that it would settle the outstanding bills.

In the answering affidavit, second applicant indicated that it disputed the preliminary point raised regarding the reckoning of time within which an application for rescission of judgment ought to be filed, for purposes of Rule 63(1) of the rules of this court. At the hearing of this matter, counsel for the applicant submitted that the applicants were in the court’s hands, and enjoined the court to resort to the provisions of Rule 4C of the rules of this court in order to do justice in this matter.

The question that falls for determination is what constitutes the “making” of an application generally, and specifically, for purposes of compliance with the provisions of rule 63. One school of thought suggests that when court process is filed with the office of the registrar and date stamped, that is when an application is generally, “made”. By implication if that happens within thirty days of the date when an applicant acquires knowledge of the judgment sought to be rescinded, then that applicant is deemed to be properly before the court for purposes of rule 63(1).

Order 9, Rule 63 provides that:

“63. Court may set aside judgment given in default
(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied on an application in terms of sub rule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just”.

It is necessary that the court satisfies itself that an applicant for the relief sought in terms of rule 63 has complied with the first hurdle set out in rule 63(1), before proceeding to consider the merits of the matter, whether the applicant has established “good and sufficient cause”, in terms of rule 63(2). The question that the court must determine is whether application for rescission of default has been made “not later than one month after knowledge of the judgment”. In Sibanda v Nitni SC 74/02, 2002 ZLR (1) @ 266 MALABA JA, stated that:

“It is clear from r63(2) that before considering the question whether or not the application contains a “good and sufficient cause” for it to exercise the wide discretion conferred upon it in favor of the applicant, the court must be satisfied that the application has been made (that is set down for hearing and not just filed with the registrar) within one month of the date when the applicant had knowledge of the default judgment or that an application for condonation of non compliance with r63(1) has been made or granted”.

MALABA JA cited with approval the observation made by SANDURA JA in the case of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) @ 251 C-E

“In terms of r 63(1), a defendant against whom a default judgment has been granted has a period of one month; from the time he becomes aware of the judgment, within which to file an application for the rescission of that judgment. If he does not make the application within that period but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application. This should be done as soon as he realizes that he has not complied with the rule.
 If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for the rescission of the default judgment, but also for the delay in seeking condonation”. See Saloojee & Anor v Minister of Community Development 1965(2) SA 135 @ 138H

My reading of these cases is that the test laid down in Viking Woodwork (supra) was subsequently clarified and expanded in Ntini v Sibanda (supra). The test laid out in required t in Viking Woodwork (supra) required that:

1. Applicant files the application for rescission of judgment within a period of one month from the date of knowledge of the judgment.
2. If applicant fails to apply for rescission of judgment within one month of becoming aware of the judgment, an application for condonation of non compliance with rule 63(1) must be made as soon as applicant becomes aware of the non-compliance.
3. In my opinion, Sibanda v Ntini (supra) added a third requirement, that the application for rescission of judgment must not only be made within one month of the date of becoming aware of the judgment, it must be “set down for hearing and not just filed with the registrar”, within that period.

This court has followed these cases decided by a superior court in the case of SAI Enterprises v Girdle Enterprises (Pvt) Ltd 2009(1) ZLR 352.

It was held that:

“In terms of r63(1) of the High Court Rules 1971, a party against whom a default judgment has been given may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside. The making of an application for rescission of a default judgment occurs when the application is set down and heard, not merely when it is filed with the registrar. of the court. Consequently, if an application for rescission of judgment is not heard and determined within thirty days of the of the date on which the applicant had knowledge of the default judgment, the applicant must first seek an indulgence or condonation before the application for rescission is heard, no matter that there is no practical way that such an application can be filed, heard and determined within a thirty day period and delay in set down beyond the thirty day period is beyond the applicant’s control”.

With all due respect to the court in SAI Enterprises, it seems to me that, the particular circumstances of the case before it, may have necessitated that the court take the test further than what the Supreme Court stated in Sibanda v Ntini supra. In SAI Enterprises it was held that an application for rescission of default judgment, “… occurs when the application is set down and heard, not merely when it is filed with the registrar of the court”. The Supreme Court, in *Sibanda v Nitni*, held that “...the court must be satisfied that the application has been made (that is set down for hearing and not just filed with the registrar) within one month of the date when the applicant had knowledge of the default judgment”.

It is my view that setting a matter down for hearing consists of filing an application for allocation of a date for hearing with the office of the registrar in the prescribed format in terms of the rules, and receiving notification from the office of the registrar, also in the duly prescribed format, that the matter has been set down for hearing on a certain date, at a certain time, in a certain court, and before a specific judge. The matter will then be “heard” on the prescribed date. The “hearing may take a few minutes, a few hours, a few days, and depending on the complexity of the matter, even a few weeks or months. In my view there is a distinction between setting a matter down for hearing, and the hearing of the matter. There is another distinction, between applying for set down dates, and being allocated with set down dates. The volume of cases being what it is these days, merely filing an application for allocation of set down dates is not a guarantee of being allocated with dates for hearing within a reasonable period, let alone within thirty days of the date of applying for set down dates. Applying for set down dates is a precursor to being allocated with dates for a hearing. In a nutshell, given the circumstances that the courts are currently operating under, setting a matter down simply means being allocated with a date when the matter is expected to be heard. Hearing of a matter consists of appearing before the judge, and making submissions, or adducing evidence. The hearing of a matter does not amount to its determination. A matter is determined when the court delivers its judgment.

In my opinion, *SAI Enterprises* is distinguishable from *Sibanda v Nitni* for the reason that it goes further than the requirement of merely setting a matter down for hearing within one month of the date of knowledge of the judgment. It talks about a matter being set down and heard within one month. I will associate myself with that judgment, but only to the extent that it applies the test set out in *Sibanda v Nitni supra*, which is binding on the High Court until expressly set aside by the Supreme Court. To the extent that the judgment in *SAI Enterprises* requires that an application for rescission of default judgment be filed with the registrar, set down for hearing, and actually heard, all within a period of one month of the date of knowledge of the judgment, I am not persuaded to go down that path.


In coming to this conclusion, I am mindful of the submissions placed before my brother judge that the rules of this court require that all applications under their auspices comply with Order 32 rr226(1),230, 231,232 and 234. These rules all prescribe time limits which make it impossible for an opposed application to be filed, served, opposed to, answered to, heads filed and responded to, and set down within thirty days. It is common cause that the time periods referred to in Order 32 collectively, exceed thirty days. This renders the inevitable delay beyond an applicant’s control. The Supreme Court was, however, alive to these sentiments when it followed *Theunissen v Payne 1940 TPD 680* in *Sibanda v Ntini supra*. It found that an application is made when it is set down and not just filed with the Registrar, within thirty days of the date of knowledge of the judgment. The court did not go further to find that the making of an application is filing it, setting it down, and hearing it. (my underlining for emphasis).

It is my view that, when regard is had to the circumstances of this matter before me, in paragraph 3 of the founding affidavit, second applicant confirms that the date when it became aware of the judgment is 13 December 2011. According to my calculation, one month after 13 December 2011, would bring us to 12 January 2012. It is common cause that the application before the court, for rescission of judgment, was filed of record on 19 January 2012. The application was set down for hearing, on 15 July 2013. No application has been made, for condonation of non compliance with the provisions of rule 63 (1), not only in relation to the failure to file the application within one month of the date of knowledge of judgment, but also for condonation of non compliance with the requirement to file and set down the application for hearing, within the one month stipulated period.

In my view, there is nothing in the wording of rule 63(1), or in any of the relevant cases that have interpreted it, which suggests that this court has additional discretion, to authorize a departure from the provisions of rule 63(1), by relying on the provisions of r4C, as suggested by counsel for the applicants. This is especially so, in view of the failure by the applicants to seek condonation of failure to comply with the rules of this court. The only remedy available to an applicant who has fallen foul to the provisions of rule 63 (1), is to apply for condonation as soon as the applicant realizes that it has not complied with the rule. Even then, applicant will have to provide an acceptable explanation, not only for the delay in making the application for rescission of judgment, but also for the delay in seeking condonation. *Viking Woodwork (Pvt) Ltd v Blue Bell Enterprises (Pvt) Ltd (supra)*. No such explanations have been placed before this court.


It is my view that, the import of the case law that has been referred to above is that, a court that is seized with an application in terms of rule 63(1) must first satisfy itself that the relevant time limits within which to file and set down an application for rescission of default judgment have been complied with, before considering the merits of the application. Filing and setting down of the application, of necessity include, causing the application to be date stamped with the office of the registrar of this court, serving it on the respondents, receiving opposing papers, answering to opposing papers, filing heads of argument, receiving respondent’s heads of argument, applying for allocation of dates for the hearing, being allocated with dates for the hearing, all within thirty days of the date when applicant became aware of the default judgment that is sought to be set aside.

If the applicant is out of the time, condonation simply has to be applied for and obtained, before the application for rescission of judgment can be set down for consideration of its merits. If this proves inconvenient because in most cases the inevitable delay will not be due to any fault on the part of the applicant, then in my view, it is time to consider whether the purpose of rule 63(1) has become obsolete in these modern times, or whether the courts’ interpretation of it has rendered it obsolete. Just because r63(1) appears most inconvenient in our current circumstances does not mean that it will remain so in future.

For these reasons, I respectfully decline to consider the merits of this application, because I have found that the applicants did not comply with the provisions of rule 63 (1). The applicants are therefore not properly before the court. I also find that the applicants have not laid down any basis before the court, for consideration of the second part of the relief that they seek, namely that they be allowed to file their plea within ten days of the date of this court’s order. For the court to consider whether the applicants are entitled to that relief, it would necessitate a consideration of the merits of the matter. The application is therefore dismissed with costs.

Muskwe & Associates, applicants’ legal practitioners
I.E.G. Musimbe & partners, Respondent’s legal practitioners
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