Judgment record
Gertrude Pazvichainda Stembiwe Mutasa and Didymus Mutasa v Nyakutombwa Mugabe Legal Counsel
HH 202-18HH 202-182018
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HH 202-18
HC 1482/18
REF CASE 9618/16
GERTRUDE PAZVICHAINDA STEMBILE MUTASA
and
DIDYMUS MUTASA
versus
NYAKUTOMBWA MUGABE LEGAL COUNSEL
HIGH COURT OF ZMBABWE
TSANGA J
HARARE, 29 March 2018 & 11 April 2018
Opposed Application
D Mwonzora, for the applicants
P Nyakutombwa & T R Mugabe, in person
TSANGA J: This application for rescission of judgment was brought under Order
49 r 449 which deals with rescission on the grounds such as, among others, that the order was
erroneously sought or erroneously granted in the absence of a party affected by the
judgement. The first applicant is the wife of the second applicant against whom the judgment
in question, being a default judgment, was obtained by the respondent firm of legal
practitioners. For ease I shall refer to the first applicant as Mrs Mutasa and to the second
applicant as Mr Mutasa.
The default judgment was for unpaid legal fees for services allegedly rendered by the
then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance
with the rules). Following the passing of the default judgement, a warrant of execution was
issued which resulted in the attachment of goods at the matrimonial home. It is the
attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a
decision was made in her absence as an interested party. She brought an urgent chamber
application in February 2017 seeking a provisional order on the basis that she had a pending
application for rescission. The order was granted to accord her the opportunity to expand
more fully on her claim. When the provisional order was granted in her favour in February
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REF CASE 9618/16
2017, it was always on the understanding that the burden of proof that she is indeed an
interested party in the legal sense would be on her.
She has been married to Mr Mutasa for 47 years during which time she avers that they
accumulated the property in question, some of which she says she acquired personally. Due
to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed
by way of an interpleader but chose to assert her claim using r 449 as an interested party in a
judgment which has impacted upon her. Both applicants as husband and wife equally assert
the joint ownership of some of the assets attached.
Mr Mutasa who also seeks rescission, bases his claim for rescission on the grounds
that he as an interested party, being a defendant in the matter HC 9618/16 upon which default
judgment was sought, never received the summons in question.
The facts surrounding the default judgement were as follows. On 22 September 2016
the respondent firm issued summons under case No. HC 9618/16 against three defendants
namely, the second applicant herein Didymus Mutasa as the first defendant, one Temba
Mliswa as the second defendant and one Rugare Eleck Ndidi Gumbo as the third defendant.
The claim against the three defendants was for monies owing for legal services rendered. In
Mr Mutasa’s case, the summons were served upon him on 6 October at his residence by
affixing same on the outer gate of that residence. His claim is that he never saw these
summons although he says he then heard of the matter from Temba Mliswa, the second
defendant. On 17 October 2016 he had entered an appearance to defend through his lawyers.
He avers that that the appearance to defend had some errors in relation to its citation of the
case number. This appearance to defend was only served on the Respondent firm of
practitioners on 25 October 2016. It was out of time in terms of notifying them of the
defence.
It is not in dispute that service upon Temba Mliswa whose address for service could
initially not be ascertained was only done on 22 October 2016. What is material is that
Temba Mliswa, through the same counsel for Mr Mutasa, had then entered an appearance to
defend on behalf of all defendants in the matter. Mr Mutasa says he took this as the second
service of the same summons. An appearance to defend was entered which covered all three
defendants. Given the defective case number in his appearance to defend with respect to the
summons served upon him, he says he took the service of summons on Mr Mliswa as putting
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him squarely back in the picture and on a steady course as he then filed his papers in relation
to that matter even up to the PTC stage.
It is also not in dispute that on 4 November 2016, the Respondent law firm had moved
to advise counsel for all three defendants that the appearance to defend on behalf of Mr
Mutasa was out of time and that they had already moved an application for default
judgement. Respondent law firm also averred that its service of the summons by affixing on
the outer gate of Mr Mutasa’s property was proper.
The legal position
Rule 449 (1) under which the applicants pin their claim provides as follows.
449. Correction, variation and rescission of judgments and orders
(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) in which there is an ambiguity or a patent error or omission, but only to the extent of such
ambiguity, error or omission; or
(c) that was granted as the result of a mistake common to the parties.
The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error
as follows:
“As to what constitutes an “error”, such an error would exist where the judge was unaware of
facts which, if he had been aware of them, would have made it highly unlikely that he would
have found it permissible or competent to make an order against a party. Examples include (a)
a default judgment being granted against an applicant who had filed an appearance to defend
court but which appearance had not been brought to the attention of the judge; and (b) a false
return of service being filed by the Deputy Sheriff indicating that service had been effected
personally, when in fact no such service had been effected.”
With this context I turn first to Mrs Mutasa’s claim as first applicant.
Whether the First applicant has a claim for rescission using rule 449
As regards spousal claims for property under attachment, where party can prove that
the property belongs to them then it will not be attached to satisfy the debt of a spouse. See
the discussion in the case of The Sheriff of Zimbabwe v Elina Chikwava and Ors 272. Where
a spouse asserts that assets are exempt as solely owned property and yet cannot provide
evidence to support their claim the courts generally do not entertain such claims. Creditors
can and do often go for such jointly owned assets to satisfy a debt owed by a spouse in the
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REF CASE 9618/16
absence of tangible proof that the property is exempt separate property. Assets are protected
by the law where the marriage is out of community of property, making the spouse liable for
their own debt where an asset sought to be attached clearly belongs to one spouse.
However, in most marital households, even where parties are married out of
community of property, household goods and effects are generally acquired jointly and
constitute part of the jointly owned property giving rise to joint community of property in
relations to those specific assets.
Even though Mrs Mutasa says she owns some assets to which she has no receipts, by
and large there are unequivocal averments by both applicants that the assets are jointly
owned. Mrs Mutasa’s claim that the judgment was erroneously given and that she needs to be
part of matter because it affects her misses the point. The rationale for making jointly owned
or acquired property executable is fairly straight forward. Absent the application of any
specific provisions of the law to the facts exempting such property, the jointly owned
property is attachable and executable because it lacks a separate identity as his or hers. As a
result of the obligation to support implicit in marriage, a concept which in reality goes
beyond financial spousal support during marriage or on divorce as is generally understood,
such jointly owned assets become attachable as belonging to an inseparable duo. After all
when married people take their vows they are for “good times and the bad times” and for
“richer or poorer.” They undertake to be there for each other. The real meaning of these vows
are put to the test and certainly become clearer in times such as these when a spouse incurs a
debt.
“Often couples become aware of the legal obligation of marriage only in the event of a crisis
such as a long term illness of one of the spouses, the onset of financial problems, or the
breakdown of marriage itself.”1
Legal fees constitute the necessaries of life for which a spouse may need to support
the other. Jointly owned assets may indeed need to be drawn upon to satisfy the debt of the
other when they are not protected by law. These are the bad times. Such times are part of the
risks of marriage when assets are jointly owned and one spouse falls into debt.
Also, this does not mean that the spouse to whom the debt does not belong needs to be
part of that matter. As regards Mrs Mutasa’s claim that she is an interested party affected by
1
See Twila L Perry The “Essentials of Marriage”: Reconsidering the Duty of Support and Services 15 Yale J.L
& Feminism 1 (2003). See also Sohrab Tahvildaran “Support” in the Duty of Spousal Support During
Marriage 20 J. Contemp. Legal Issues 35 (2011-2012)
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the judgment and hence entitled to its rescission, there are core observations to be made from
the factual matrix. In a marital setting, it is apt to observe that a debt is incurred either by the
wife on her own, or by a husband on his own or by both the husband and wife jointly. Whilst
the debt was incurred during a marriage, it was clearly that of her husband in a matter which
had nothing to do with her. The matter in which she says is an interested party was of a
contractual nature between her husband and two others with the legal firm in question in
relation to legal services rendered.
The spouse who incurred the debt is the one responsible for it save that under the duty
of support, and, relying on the doctrine of providing necessaries to other spouse, a creditor
can stretch their tentacles to recover the debt from jointly owned property. Whilst it is
acknowledged as was highlighted when she was granted the provisional order that she would
have inevitably have some interest in the property attached after 47 years of marriage, the
interest she has is certainly not a legal interest in the sense of it being necessary to make her a
party to that matter. For these reasons that I have expounded, I find that Mrs Mutasa’s quest
as first applicant to have the judgment set aside under r 449 lacks merit. She is not an
interested to the debt which was separately acquired by her husband.
Whether the default judgment against the 2nd Applicant was granted in error
I turn now to the issue of whether the default judgment against Mr Mutasa was
granted in error when he had validly entered an appearance to defend in accordance with the
rules albeit with errors to his process. Mr Mutasa too was able to obtain a provisional order
against execution of the property together with his wife on the basis of his allegations at the
urgent hearing that he had filed an application for rescission against a default judgment which
by nature is a precarious order. See Nyamhuka v Mapingure 2014 (2) ZLR 229 (H). This
application for rescission has since expanded much more fully on the chain of events that led
to the default judgement. As is the case with his wife’s application this court is now better
placed to make an informed decision on the application as a whole.
Rule 49 is clear on what must peremptorily be done after an entry of appearance to
defend has been filed. It states as follows:
“49. Notice of entry of appearance
Within twenty-four hours of the entry of appearance to defend written notice thereof shall be
served on the Plaintiff or on his legal practitioner where he sues by a legal practitioner, at the
plaintiff’s address for service.
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Such notice shall be in Form No. 8.”
Put simply within 24 hours of the entry of appearance to defend, the plaintiff or his
legal practitioner must be advised of this fact using the prescribed form. In casu the plaintiff’s
address in the matter was known and should have been advised within 24 hours. The rule is
peremptory in nature. The fact that two figures had been mistakenly added to the case number
cannot be the reason for failure to advise the plaintiffs timeously of the appearance to defend.
Mr Mutasa’s appearance to defend defective as it was, was entered by a firm of practitioners
cognisant of the need to follow the rules. There was simple disregard of the rules on the part
of his legal practitioners and a failure to pay attention to detail. There was reference to the
summons having been served on the 5th instead of the 6th. The case number was incorrectly
cited. To add insult to injury there was absolute disregard of the peremptory rule to advise the
other side timeously of the appearance to defend. This was only done on 25 October 2016.
It is also evident that realising the myriad shortcomings with the appearance to
defend, his counsel then entered an appearance to defend for all three defendants to summons
that had been served on 22 October 2016 at an address given by Temba Mliswa as his address
for service. What is important is that it was not where Mr Mutasa resided. The service of the
summons on 22 October 2016 for Temba Mliswa at that address was lucidly explained by the
respondent firm in this matter.
What is beyond doubt is that an appearance to defend, defective in several respects as
outlined above, was entered and was not served on the plaintiffs timeously. By the time it
purported to be served on the plaintiff on 25 October 2016, this was well out of the stipulated
24 hours of its filing, given that appearance to defend had been entered on 17 October 2016.
By that time the respondent firm had already applied for default judgment. This it did on
21 October and brought this to the attention of the applicant’s counsel in a letter dated 4
November 2016.
The fact that there were subsequent indications to defend the matter by Mr Mutasa is
not the point. The case of HPP (Pvt) Ltd) v Associated Newspapers of Zimbabwe 2000 (1)
ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure
to enter appearance timeously or for removal of a bar. This was the remedy that was open to
Mr Mutasa’s counsel upon realising that his appearance to defend was not in order. It was
simply not done.
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Equally important was the argument by the respondent lawyers in person at the
hearing that the matter is in fact an attempt by Mr Mutasa to have a second bite at the cherry
having initially sought to make an application under r 63 before withdrawing that matter to
pursue this application under r 449. A primary observation highlighted to the court was his
supporting affidavit was far from being a supporting affidavit but was in fact a standalone
affidavit for rescission. The person deposing a supporting affidavit will materially have read
the founding affidavit with a view to making averments in support of those in the founding
affidavit. I am in agreement that in this application the real applicant is Mr Mutasa and not
Mrs Mutasa as it is the default judgment against Mr Mutasa which is sought to be set aside.
Mr Mutasa received the summons. His lawyer was negligent in handling the appearance to
defend. No application for condonation was made. His application does not in any way fall
under the circumstances envisaged in r rule 449.
Mr Mutasa clearly acknowledges that services were provided. The argument that there
are issues regarding which services were provided that need to be ventilated at trial is also not
supported by the papers that were filed in this application. The issues of which services were
provided could also have been easily ascertained by asking for the bill of costs to be taxed.
The respondent also has a valid point that the taxation of the costs should have been at the
applicant’s behest.
The conclusion of this court is that as regards Mr Mutasa as the second applicant, the
summons which were affixed to the outer gate were indeed seen by him and his lawyers
served the appearance to defend on the respondent firm out of time. His application on the
basis that the judgment was made in error as he had not received the summons therefore lacks
merit.
Accordingly;
The application for rescission under r 449 is dismissed with costs.
Mwonzora & Associate, applicants’ legal practitioners