Believe Guta v Tinasha Leslie Chiwarwa and Pamela Tsitsi Chiwarwa and Nelson Farayi Chiwarwa and Magistrate R. N. Murandu N.O and Clerk of Court – Kadoma N.O and Messenger of Court – Kadoma N.O

### Preamble
1
HH 282-21
HC 2538/21
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BELIEVE GUTA

versus

TINAISHE LESLIE CHIWARA

and

PAMELA TSITSI CHIWARA

and

NELSON FARAYI CHIWARA

and

MAGISTRATE R. N. MURANDU N.O

and

CLERK OF COURT –KADOMA N.O

and

MESSENGER OF COURT –KADOMA N.O

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 3 & 10 June 2021

Urgent Chamber Application

Applicant, in person

T.K. Chamutsa, for 1st, 2nd, 3rd, 4th, 5th and 6th respondents.

TAGU J: The Applicant a self-actor approached this court on an urgent basis seeking to stay proceedings under case number CGK 118/21 at Kadoma Magistrates Court pending determination of the review proceedings in Case Number HC 2354/21. The relief sought was couched as follows-

“INTERIM RELIEF

Whereupon after reading applicants’ affidavit of urgency, founding and supporting affidavits and documents attached it is ordered that:-

The proceedings in Case Number 118/21 at Kadoma Magistrates Court are hereby stayed pending finalization of review proceedings in Case Number HC 2354/21.

The 5th Respondent is hereby ordered to transmit the record of proceedings to the High Court within 10 days from the date of service of the Application for review Case Number HC2354/21.

If an order has already been granted by the time this Application is heard, the 6th Respondent is ordered to stay execution of that order pending finalization of review proceedings in Case Number HC 2354/21.

TERMS OF FINAL ORDER SOUGHT

The interim order is hereby confirmed and the terms thereof are hereby made final.

First Respondent to pay costs of this suit.”

The facts of the matter are that the Applicant is a son to the late Thembiso Gobo who was a tenant at House Number 2141 Nyandoro Rimuka Kadoma on the basis of a lease agreement she concluded with one Anorld Chiwara who happens to be the 1st, 2nd and 3rd Respondents’ father. His late mother stayed there with a few relatives who continued to stay at the said house after his mother’s death while her estate continued to pay rentals in terms of the lease agreement. The Applicant was not residing at the said rented house. On the 15th of April 2021 the Applicant was served with summons from the 1st, 2nd and 3rd Respondents seeking an order for his eviction and payment of various sums of money. The Applicant entered an Appearance to defend and filed a special plea to the effect that he was not a tenant nor an occupant of the house in question. The Special plea was set down for hearing on the 11th May 2021. The Applicant was duly served with a notice of set down of the special plea. He said in his founding affidavit that he fell ill on the 9th of May 2021 and was taken to Kadoma General Hospital on the 10th of May 2021. Realizing he was not going to make it to Court he wrote to the Respondents advising them of his predicament and requested to have the hearing postponed to the 31st of May 2021. However, the 4th Respondent proceeded to hear the special plea in his absence and granted a default judgment to the following effect-

“WHEREUPON after reading documents filed on record and hearing council for the Plaintiffs.

Special plea be and is hereby dismissed.”

Aggrieved by the decision of the 4th Respondent the Applicant proceeded to file an application for review with this Honourable Court under Case Number HC 2354/21. His contention is that he considers the conduct of the 4th Respondent to be irregular in that she ignored the communications from Kadoma General Hospital to the effect that he was not feeling well hence proceeded to hear the matter without affording him his Constitutional right to be heard. According to him the 4th Respondent was biased in favour of the 1st, 2nd and 3rd Respondents. He submitted that his application for review has prospects of success hence he implored this court to stay the proceedings in case CGK 118/21 pending determination of the review under case number HC 2354/21. Further he wants the court to order the clerk of court at Kadoma to forward the record of proceedings to the High court and in the event that the matter has been finalized to stay execution of the order pending the determination of the review.

The application was strongly opposed by the Respondents. Council for the Respondents submitted that the Applicant used a wrong procedure. He said there is nothing for the High Court to review. He said the complaint by the applicant is about a default judgment entered against him at Kadoma. He said the other party was present and the Applicant was in default hence the trial Magistrate correctly entered a default judgment against the Applicant. He said further that where there is a default judgment the party in default must seek a rescission of the default judgment and not a review. Where the party fears execution of the default judgment the party in default must apply for stay of execution pending the determination of the application for rescission.

In casu, he said as an officer of the court, and out of courtesy he spent an hour explaining to the Applicant that the procedure he adopted is wrong since he is a self -actor. He advised him that a default judgment is not corrected by a review application but by an application for rescission of the default judgment but the Applicant remained adamant and refused to take the free advice he gave him and that he told him that he would apply to the court to dismiss the application and seek punitive costs. He therefore applied that the application be dismissed with costs on a higher scale since it is premised on irregular application. For this contention the council referred the court to the case of Ignatius Masamba v Secretary-Judicial Service Commission HH 978-15 at pages 5 to 6 of the cyclostyled judgment where the court said-

“Finally, whilst it is a constitutional right to be able to approach the courts to obtain relief, self-actors must know that the practice of law is a very specialized area which requires deep knowledge and skill. Simply reading law books at random does not equip one with the requisite knowledge. Legal assistance should be sought if one is to comply with the rules and file appropriate papers. The plaintiff in this matter fell into a pit by his mere belief that he could handle his claim without legal assistance. As a result, the defendant has had to be put to expense in defending fatally defective proceedings where the plaintiff filed numerous documents without restrain some being withdrawn. This is a case which warrants that an order for costs on a legal practitioner scale be granted to discourage such conduct which is unnecessary and costly.”

He said the Applicant must go back to the Magistrate Court and seek rescission and not pursue the review application which have no prospects of success.

In response the Applicant maintained that he did not use the wrong procedure because the trial Magistrate did not only dismiss the case on absence of Applicant but said in her order that “WHEREUPON after reading documents filed on record and hearing counsel for the Plaintiffs” means she was biased towards the Plaintiffs. He therefore said while he does not have any authorities he believes that in terms of s 26 of the High Court Act [Chapter 7.06] the High Court has power to review all court processes hence his application for review has prospects of success. As to the prayer for costs he submitted that all litigants come to court to seek justice. He said courts should not be seen to deter self-actors from coming to court by imposing on them high costs. He said if execution is allowed and he succeeds in his review this will be a brutum fulmen. For this contention he referred the court to the case of Stephen Ndlovu v The Officer Commanding Zimbabwe Republic Police, Bulawayo Province and The Commissioner and Co-Minister of Home Affairs HB 100/10.

In casu the Applicant was in default when his Special plea was dismissed. I agree with the counsel for the respondents that the trial Magistrate was correct to enter a default judgment. I also agree that where a default judgment has been entered it can only be set aside through an application for rescission and not through a review. As the counsel for the Respondents submitted there is nothing to review. The proper application that the Applicant should have filed should have been an application for rescission of a default judgment. The point raised by the counsel for the Respondents that the Applicant filed an improper application makes sense. Pending the execution of the default judgment the applicant should have filed an application for stay of execution. The counsel for the Respondents is correct that the Applicant should go back to Kadoma Magistrates Court and institute an application for rescission of the default judgment. He however filed fatally defective proceedings. The application for review in the circumstances lacks merit.

In essence what the counsel for the Respondents raised was a point in limine. This point in limine has merit. As to the order I do not think it would be proper to dismiss the application but to strike it off the roll of urgent matters. Further, I am also of the view that the Applicant being a self-actor should not be saddled with cost on a higher scale at this stage. In the result I will uphold the point that the Applicant used a wrong procedure.

IT IS ORDERED THAT

The application is struck off the roll of urgent matters.

There is no order as to costs.

Chamutsa and Partners, respondents’ legal practitioners