Blessing Mashangwa and Ocean Hair & Beauty (Pvt) Ltd v African Century Limited and Upenyu Ignatious Prosper Mashangwa

### Preamble
1
HH 696-18
HC 7418/17
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BLESSING MASHANGWA

and

OCEAN HAIR & BEAUTY (PVT) LTD

versus

AFRICAN CENTURY LIMITED

and

UPENYU IGNATIOUS PROSPER MASHANGWA

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 13 March 2018 & 1 November 2018

Opposed application

T Zhuwarara, for the applicants

H Mutasa, for the 1st respondent

CHITAKUNYE J. This is an application for rescission of a default judgement given against the two applicants on 13 July 2017 in HC 1403/14.

The first respondent issued summons against the applicants and the second respondent on the basis of an alleged Lease Finance Facility and a lease agreement allegedly entered into between first respondent on the one side and the second respondent and the applicants on the other. The summons was for the payment of US$225 588.87 which sum first respondent alleged the second respondent and the two applicants owed it.

The applicants and the second respondent duly defended the matter. The second respondent was represented by one law firm whilst the applicants where represented by a different law firm.

After pleadings had been closed and issues for trial duly determined, the matter was set down for trial on 13 July 2017. It was on that day that the applicants defaulted. Though second respondent did not attend, he was represented by his legal practitioner. As the applicants were not in attendance a default judgement was entered against them.

It is common cause from the papers filed of record that first applicant and second respondent are husband and wife. They are apparently also directors of second applicant.

Upon learning that a default judgement had been entered against them applicants launched this application. The first applicant alleged that she is the one who has been representing second applicant in the main matter and in this application.  She thus brought this application on behalf of both applicants in terms of Order 9 r 63 of the High Court Rules 1971.

In bringing this application applicants alleged that their failure to attend court on the 13 July 2017 was not wilful but was premised on their belief that the matter was to be postponed as second respondent had to go to South Africa for medical attention and first applicant, as the wife was to accompany him. They assumed that the postponement sought by second respondent’s legal practitioner would result in the case as a whole being postponed

As regards their defence the applicants alluded to the defence stated in their plea filed of record in the main matter.

The first respondent opposed the application contending that the applicants were in wilful default and had no prospects of success in their defence.

Rule 63 states, inter alia, that:

“(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 subrule (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 trite that for an applicant to succeed he/she must satisfy court that there is good and sufficient cause for the court to rescind the default judgement. Though the terms ‘good and sufficient cause’ are not defined in the rules, Court is nevertheless granted wide discretion in determining whether good and sufficient cause has been established.

In du Preez v Hughes N. O 1957 R & N 706 (SR) at 707 G-709B BEADLE J (as he then was) after considering a number of decisions on the meaning of the term ‘good and sufficient cause’ stated that:

“It seems to me that it emerges from these decisions that there are three broad considerations which the Court will always take into account: First, the explanation given by the applicant for his default; second, the bona fides of the application made to rescind the judgement; and third, the bona fides of the applicant’s defence on the merits of the case…. ….. …and the court has a very wide discretion in deciding what is, or what is not, sufficient cause for relief. …..

Too much emphasis should, however, not be laid on any one of these considerations individually. They should be regarded in conjunction with each other and with the application as a whole. An unsatisfactory explanation for the default may be strengthened by a very strong defence on the merits.”

See also Beitbridge Rural District Council v Russel Construction Company 1998 (2) ZLR 190 (S) at 192-194.

In Stockil v Griffiths 1992 (1) ZLR 172(S) at 173 D-F GUBBAY CJ aptly reiterated the factors in these words-

“The factors which a court will take into account in determining whether an application for rescission has discharged the onus of proving ‘good and sufficient cause’, as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. see for instance, Barclays bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported) Roland and Another v McDonnel 1986 (2) ZLR 216 (S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are-

The reasonableness of the Applicant’s explanation for the default

The bona fides of the application to rescind the judgment; and

The bona fides of the defence on the merits of the case which carries some prospects of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

See also Hutchison and Another NNO v Logan 2001 (2) ZLR 1 (H)

In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S) at 369 E – H; 370A MCNALLY JA opined as follows on “good and sufficient cause” where the aspect of wilful default is raised as in this case:

“While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule that when there is wilful default there is no room for good and sufficient cause. I favour the definition of wilful default offered by KING J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803 H-I:

‘More specifically, in the context of a default judgment, ‘wilful’ connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation, for this conduct might be.’

See also Morkel v ABSA Bank Ltd & Anor 1996 (1) SA 899 (C). But it is precisely in the ‘motivation’ mentioned in that passage that one might find ‘good and sufficient cause.’ I respectfully agree with the dicta of INNES J in the oft-cited case of Cairns Executors v Goarn 1912 AD 181 at 186 passim. In particular, His Lordship said:

‘It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the rules have purposely made very extensive and which it is highly desirable not to abridge’”.

In order to determine whether applicants have discharged the onus it is imperative to consider all the factors taking into account the circumstances of each case.

The applicants’ explanation for the default.

The applicants’ explanation for the default was to the effect that first applicant, who represents both applicants, was accompanying her sick husband, second respondent, to South Africa for medical treatment. In that regard copies of pages of first applicant’s passport were attached to the application confirming that during the period in question she was outside the country. Pages of the second respondent’s passport were also attached confirming the trip. As to the purpose of the trip two letters from local medical institutions were attached. The net effect of the letters was to confirm that second respondent had undergone major surgery and that he was due to undergo further treatment outside the country.

Applicants also tendered a letter from second respondent’s legal practitioners to first respondent’s legal practitioners advising them of the medical condition of the second respondent as reflected in the two letters from the medical institutions referred to and the fact that in view of second respondent’s condition second respondent will be seeking a postponement of the trial. The first applicant alleged that since arrangements had been made for the postponement of the matter she thought that that would extend to the whole matter as they were jointly sued.

As regards lack of legal representation, the first applicant stated that at that time applicants were in financial dire straits and were self-actors as they could not afford the services of a legal practitioner. Had there not been moves to postpone the trial she would have represented the two applicants in the trial. It was with that layman’s thinking and reasoning that she did not make arrangements for representation on 13 July 2017.

Whilst not disputing that first applicant accompanied her husband to South Africa, the first respondent contended that the explanation for the default was nevertheless not reasonable and that the applicants were in wilful default.

In determining whether an explanation is reasonable or not it is important to consider the circumstances of the case. In casu, the applicants and the second respondent were sued jointly and severally. The applicants laboured under a procedural impression that as the second respondent was not well enough to stand trial due to medical condition of which medical reports had been furnished, the trial would not take off. The second respondent was on his way to South Africa for treatment and so in first applicant’s mind the trial would have to be postponed as a whole. As it turned out in respect of second respondent the matter was postponed. I am of the view that whilst first applicant’s explanation may not be legally sound, it must be accepted that she is a lay person and in any case her summation that the trial would not take place as second respondent‘s request for postponement would succeed was correct. It may have been a foolish assumption but it is the truth of what she said happened.

As regards the second applicant’s position, the first respondent sought to say that the first applicant would not have been competent to represent second applicant as second applicant is a company and so first applicant’s reasons for failure to attend court cannot suffice for the second applicant. That reasoning fails to appreciate that it is first applicant who was representing second applicant even in the main matter such that if any instructions were to be given it would be by first applicant. Her unavailability would still have affected the ability of second applicant to proceed with the matter. The net effect was still going to be a postponement.

In the circumstances of this case it cannot be said that the applicants will full knowledge of the legal consequences consciously and freely chose not to attend court on the day in question. They clearly acted under a misapprehension that the postponement of second respondent’s case would lead to a postponement of their case as well since they were sued jointly.

I am of the view that the applicants’ explanation for the default is reasonable in the circumstances of this case. The applicants acted under a misunderstanding of the fact that even if the second respondent was unfit to stand trial and his matter was likely to be postponed, they were still required to attend court and make their own representation.

Bona fides of the application

The next aspect is on the bona fides of the application. I am of the view that premised on the above explanation for the default and the fact that applicants have all along exhibited a desire to defend the matter it cannot be said that this application is made with mala fide intentions. Clearly the applicants are intent on pursuing their defence to its logical conclusion. The applicants’ explanation and reason for making this application has not been shown to be fanciful or a mere desire to frustrate the first respondent from executing the judgement. The applicants have shown a sincere and bona fide intention to contest the main matter. I am thus of the view that considering all the circumstances of the case the application is bona fide.

Bona fides of the defence on the merits

The last issue is on the bona fides of the defence on the merits.

It is common cause that the matter had reached trial stage. Parties in the contest had appreciated that there were triable issues. In that light it is imperative to consider the applicants’ defence in the matter. The applicants defence was to the effect that they knew nothing about the debt that first respondent sued them on. First applicant denied ever entering into the loan facility alluded to by first respondent either as guarantor or on behalf of second applicant. In a bid to show that she is not the one who signed a guarantee document  relied upon by first respondent, applicant sought the examination of signatures on the document and her standard signature on official documents. In this regard a report from a handwriting expert (forensic scientist) was attached to the application. That report on the face of it indicates that the signature on the questioned document is consistent with forgery and thus is not first applicant’s. Though the first respondent contended that applicants cannot deny that second respondent received that money and was making some payments, such averments do not in any way rebut the possibility of forgery as found by the handwriting expert.

It is only fair and just that where a party has shown clear bona fides in defending a matter they should be afforded the opportunity.

I am also of the view that the circumstances of this case called for circumspection on the part of first respondent before applying for default judgement or seeking to cling onto the default judgement. The applicant’s explanation for the default and their defence that was already on record should surely have been good enough cause not to oppose the application. The attitude of opposing for the sake of opposition even when the other party’s explanation for the default is probable and their defence is not frivolous or vexatious should be avoided. The real dispute between the parties could probably have been determined by now had first respondent not chosen to ignore the circumstances that were obvious to all the parties regarding the failure of the applicants to avail themselves on the date of trial.

In the circumstances I am of the view that applicants have shown a good and sufficient cause for the setting aside of the default judgement and referral of the main matter to trial as had been the case before the default judgement.

Accordingly, it is hereby ordered that:

1.	The application be and is hereby granted

2. 	The default judgement entered against the 1st and 2nd applicants on 13 July 2017 in case number HC1403/17 be and is hereby rescinded.

3. 	Costs shall be in the cause.

Mutamangira & Associates, applicants’ legal practitioners

Gill, Godlontn & Gerrans, 1st respondent’s legal practitioners