Collin Manyore v Wilbert Zindoga and Wilbert Tsaurayi

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                                                                                  HH 397-21
                                                                              CIV “A” 287/19
COLLIN MANYORE
versus
WILBERT ZINDOGA
and
WILBERT TSAURAYI


HIGH COURT OF ZIMBABWE
TSANGA & CHAREWA JJ
HARARE, 29 June & 30 July 2021


Civil Appeal


Mr T P Jonasi, for Applicant
1st Respondent: Barred
Mr T G Chogugudza,for the 2nd Respondent


       TSANGA J: This is an appeal against the refusal of rescission of judgment by the
lower court. The appellant made an ex parte application against the first respondent for an
anti-dissipation order in the Magistrate’s Court. He had at the time already issued summons
in the High Court against the first respondent claiming return of a motor vehicle described as
a MercedesBenz200, registration number AEN 4363 and white in colour. The applicant
averredin the summons that the vehicle belonged to him under circumstances outlined in his
declaration. The vehicle was said to have been confiscated by the first respondent.
       In his ex parte application, he sought to ensure that the vehicle was not sold until the
summons matter was finalised. A rule nisi was issued. On the return date, the 2nd respondent
had applied for joinder in the matter with the blessing of appellant’s lawyer who was
however absent on that day. The first respondent was also not in attendance. The second
respondent sought postponement of matter to 2nd of August 2019. However, it is alleged that
the second respondent did not inform appellant’s lawyer of the new date with the resultthaton
the 2nd of August 2019, the provisional order was discharged in default. Appellant filed an
application for rescission which was dismissed in October 2019 on grounds that the appellant,
through his practitioner, was in wilful default.
       The magistrate’s specific reasons in refusing rescission were that the applicant never
made a follow up with his legal representative on the progress of his application from the
time the interim relief was made to the time he was informed of the existence of the default
judgment under consideration. In finding that the applicant was in default, the lower court
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also relied on the case of Innocent Kadungure v Cheryl Kadungure SC 19/07where
ZIYAMBI JA as stated as follows:
   “There is a certain degree of watchfulness which is expected of a client who has given
   instructions to his legal practitioner to act on his behalf. He is obliged to take an active
   part in ensuring that his case is being prosecuted with due diligence. There is a degree to
   which he cannot sit back and leave the matter in the hands of his legal practitioner. He
   must ensure that he is being kept informed of the progress of his case and change his legal
   practitioner if necessary in order to ensure that his case receives the attention it deserves.
   He must exercise vigilance if he is not to suffer the consequences of his legal
   practitioner’s incompetence and negligence.”

        Upon this principle and the facts before it, the court held that it was evident from the
applicant’s conduct that he failed to take necessary steps with a view to ensuring that his case
was being prosecuted properly. With the lawyer handling his case having lef ttheemploy of
Hamunakwadi & Nyandoro Legal Practitioners, the court’s finding was that applicant had
decided to rely on a legal practitioner who then decided to abandon his case mid-way
resulting in the default judgment being granted against him on 2 August 2019. The courtheld
that as suchheought to suffer the consequences of the negligence of his legal practitioner. The
court further held that having found that he was in wilful default, it was unnecessary to
consider the second assertion upon which the application was based i.e. whether he had good
and sufficient cause to warrant the granting of the rescission of the default judgment. In this
regard it placed reliance on the case of Fletcher v Three Endmunds (Pvt) Ltd 1998 (1) ZLR
257 SC in which the court held that the court has no power to rescind where default was
wilful. The court dismissed application for rescission with costs on an ordinary scale.
        GROUNDS OF APPEAL
        The grounds of appeal were that the courter read as follows:
   1.   In not considering appellant’s prospects of success or bona fides in the main matter
        whether or not he demonstrated a good and sufficient cause for the relief sought.
   2. In making a finding that appellant was in wilful default in clear and admitted
        circumstances where appellant was never served with a notice of set down for the 2 nd
        of August 2019 court hearing.
   3. In considering only one requirement in an application for rescission that is wilful
        default at the exclusion of other mandatory requirements that is prospects of success
        of appellant’s bona-fides in the matter.
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       The order sought was that the appeal succeeds with costs and that the judgment of the
court a quo be set aside and substituted with the following:
           a. The default judgment granted against the appellant on the 2 nd of August 2019
              under case No. MC543/19 be and is hereby set aside with no order as to costs.
       At the hearing, the appellant’scounsel,MrJonasi, abandonedgroundsone and three for
unexplained reasons and only sought to rely tothesecondgroundbeing thatthe appellant was
not in wilfuldefaultas he hadnever beenservedwith thenotice ofsetdownfor theAugusthearing.
He otherwisestoodby hispapers.
       MrChogugudza argued on behalf the second respondent thatin thecontext of the
remainingground,      the      enquiryin       the     courtbelowhadterminatedwith          afinding
ofwilfuldefault.Assuch        thecourthadnot         consideredprospects       ofsuccess.        He
thereforequeriedthe reliefsoughtby theapplicantand argued that the reliefought to have
beenremittal of thematter forconsideration of the outstandingfacts. Kazingizi v Dzinoruma
HH10-06. Hehighlighted that theappellant had notsoughttoamendthereliefsought and thatit
would not bewithin the court’s rightstoamend therelieffor him.
       However,he           equallyarguedthatthiswas        in       any       event        amatter
fordismissalratherthanremittalgiven                                                  thatMr.Ndlovu,
theappellant’serstwhilepractitioner,hadnot                                                  filedany
supportingaffidavitregardingtheissuesimputed to him of abandoninghis client.He alsoargued
that thenotice of appealmustimpugnfindings offactbeing appealedagainst and that therewas no
error on the part of the magistrate infindingculpable non-actionby the appellantgiven that
theinterimreliefhad beengrantedtohimnearlyfourmonthsbefore the defaultjudgment.
       Remittalwas alsoargued tobe inappropriate on the groundsthatprospectsof success
werefor the mainmatterin the High Courtwhich was an interdict filed by the applicant. Healso
argued that therulenisiwouldnot have been confirmedin any eventbecauseithadbeen
improperlysought. The anti-dissipationordersoughtwas saidto be impropersinceitcan only
besought againstassetsin thecontrolof the defendant.In this instance,themotorvehiclewas not
in the custody of thefirstrespondent whichwasalsowhy he was saidtohave notbothered to
respond to the matter. The vehicle was with theappellant instead.The appellanthadin
factinstitutedproceedingsin     the    High      Courtand        hadthengone    to     seektheanti-
dissipationorderinthe magistrate’scourt. Theappellant was saidto bein factholding on
thevehicleonthe basisof this pendingappeal. Given the overallcontext, the respondent
therefore argued that the appeal lacks merit and ought to be dismissed.
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        Against thebackdrop of the abovearguments which werenot denied,the respondent
sought to make his application for rectification of the order sought, arguing that it is within
the power of the court to amend an order.Hepurported toseek the court’sindulgence tohave
thematterremittedto the courtaquoforit to dealwith the merits of theprospects ofsuccess in the
mainmatter.He otherwise maintained hisargumentthat he was not in wilful default becausehe
was not aware that thematterhadbeen postponed to the2 nd of August 2019 and that thesinsof
the practitionercould not be visited on theclient.

        Indeed the Magistrate’sCourtrules of2019 arenow coucheddifferently to the oldrules.
Theynow allowforconsiderations ofwhether the applicant was in wilful default and whether
there is a good prospect that the proffered grounds of defence or proffered objection may
succeed in reversing the judgment.

        However, as regards the ordersought, whilst thecourthaspower toalteran order sought
as argued by the appellant,theremustbe aproperapplicationmadetodo so before thehearingofan
appeal.In GulaNdebelev Bhunu2011 (1) ZLR 181at p184 thecourtfound thatwhilst thenotice
ofappealwas compliantwith therules in thatitdid mentionthereliefsought,suchreliefcould
beamendeduponapplicationbeingmadebefore the hearingsubject to therulesgoverning
applications ofthisnature. In this instance, the application foramendment is
thereforenotproperlymade andcannot beconsidered. It was supposedto have been madeby way
ofproperapplicationbefore the hearing.
        There is no value in putting the parties to further expense by striking the matter off the
roll with costs for an application regarding amendment of the order to be to be made.
Regarding thedefault itself,it was notdisputed that no supportingaffidavit had been
filedbyMrNdhlovu who supposedlydumped theappellant whilst handling his matter. The
application was indeed on shakyground even thoughappellant’slawyerargued thatthesinsof
thepractitioner should not bevisited on thelitigant.It was alsonotdisputedthat the main matter
is in thehands of the appellantwhereby helodged an applicationforan interdict in the
HighCourtinrelation to this samevehicle beforeseekingthe rulenisiand that the matter remains
outstanding.In fact the appellanthimselftold this courtthat thismainmatterhasreached pre-trial
stage.Appellant made no arguments in response with respect to the assertion that in any event
the anti-dissipation order had been improperly sought. Taking all these assertions and
arguments into account, the proper remedy is clearly a dismissal of the appeal against the
refusal of rescission.
        In the circumstances the order is granted as follows:
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         The appeal against refusal of rescission of judgment is accordingly dismissed with
costs.



Hamunakwadi & Nyandoro,Applicant’sLegal Practitioners
Mangeyi Law Chamber,2ndRespondent Legal Practitioners




CHAREWA Jagrees:…………………………………………………………………..