James Sanders v Christopher William Barnsely and Toneth Mudede and Richard Hondo and Blackbury Television (Private) Limited and The Deputy Sheriff No (Harare)

### Preamble
1
HH 373-2012
HC 8154/11
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JAMES SANDERS

versus

CHRISTOPHER WILLIAM BARNSELY

and

TONETH MUDEDE

and

RICHARD HONDO

and

BLACKBURY TELEVISION (PRIVATE) LIMITED

and

THE DEPUTY SHERIFF NO (HARARE)

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 4 and 6 September, 2012

L Uriri, for the applicant

H Chitima, for the first respondent

No appearance for the second, third, fourth

and fifth respondents

ZHOU J:  This is an application for the setting aside of a judgment given in default of the applicant in case number HC 864/11.  The judgment was given on 26 May 2011. The applicant states that he became aware of the default judgment on 25 July 2011 when he was served with the notice of attachment and removal of goods by the Deputy Sheriff. The instant application was instituted on 23 August 2011.

The application is opposed by the first respondent on the grounds that the application for rescission of the default judgment was made out of time and that the applicant was aware of the proceedings against him and wilfully defaulted.

Order 9 r 63 (1) provides that a party against whom judgment has been given in default 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 period of one month is reckoned from the date that the applicant becomes aware of the default judgment. The respondent’s contention is that the applicant did not become aware of the judgment on 25 July 2011 “since the court application resulting in the default judgment was served on the applicant’s manager…”  Being aware of the proceedings is not the same thing as becoming aware that a judgment has been given. There is no evidence tendered by the first respondent to show that the applicant became aware of the default judgment before the notice of attachment and removal was served on 25 July, 2011. I am prepared to accept that the application was made within the period provided for in the rules.

Subrule (2) of r 63 provides that the court may set aside a default judgment if it is satisfied that there is good and sufficient cause to do so. The onus is on the applicant to establish such good and sufficient cause. See Arab v Arab 1976 (2) RLR 166(A). In the case of Stockil v Griffiths 1992 (1) ZLR 172(S) at 173 D-F, the court stated the following:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving ‘good and sufficient cause’, as required to be shown by r 63 of the High Court of Zimbabwe Rules, 1971, are well established. They have been discussed and applied in many cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported);  Roland & Anor v McDonnell 1986 (2) ZLR 216(S) at 226E-H;  Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:  (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgment;  and (iii) the bona fides of the defence on the merits of the case which carries some prospect 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 Mdokwani v Shoniwa 1992 (1) ZLR 269(s) at 270C-D.

The explanation tendered must negative an inference that the applicant seeking the indulgence of the court wilfully defaulted. It has been held that in the context of default judgment “wilful” connotes deliberateness in the sense of knowledge of the action and of 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 may be. See Maujean t/a Audio Video Agencies v Standard Bank of SA 1994 (3) SA 801(C) at 803H-I; Dewera’s Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368(S) at 369F-G;  Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400(S) at 402D.

In the instant case the applicant has shown that he was out of the country when the court application in case number HC 864/11 was instituted on 27 January, 2011. Having left the country on 27 December 2010, the applicant only returned on 21 February 2011.  Judgment was given on 26 May, 2011, some three months after the applicant had returned.  E-mail correspondence dated 24 February, 2011 shows that the applicant was aware of the proceedings instituted by the first respondent. It seems from the e-mail that the applicant’s colleagues had assumed that they could act on his behalf. However, the applicant has proved that he was not properly served with the court application. Pat Williams, the person mentioned in the first respondent’s certificate of service as having received the application on behalf of the applicant denies that he received the papers. He states that he advised the first respondent that the applicant was out of the country and that he had no authority to receive the papers. In any event, being a caretaker of a block of flats, Pat William would not be a responsible person for the purposes of service of court papers on the applicant. See Herbstein and Van Winsen The Civil Practice of the Supreme Court of South Africa 5th ed., p 350.  The first respondent was not absolved of his obligation to serve the papers on the applicant by the mere fact that the applicant became aware of the proceedings from fellow respondents. See First National Bank of South Africa Limited v Ganyesa Bottle Store (Pty) Ltd & Ors;  First National Bank v Schweizer Drankwinkel (Pty) Ltd & Anor 1998 (4) SA 565(NC).

Regarding the defence on the merits, the applicant need not prove his defence on a balance of probabilities. It is sufficient if he proves the existence of an issue which is fit for trial. The grounds of the defence must be set forth with sufficient detail to enable the court to conclude that there is a bona fide defence and that the application is not made merely for the purpose of harassing the respondent. Sanderson Technitool (Pty) Ltd v Intermema (Pty) Ltd 1980 (4) SA 573(W).  The court must be satisfied that the applicant has tendered a defence “which on the face of it cannot be rejected out of hand and warrants investigation”.  Mdokwani v Shoniwa (supra) at 274C.

The applicant contends that the agreement from which the debt in issue arose was signed by him and the second and third respondents as directors and principals of the fourth respondent. Minutes of a meeting of 14 September, 2007 and a copy of an agreement for the procurement of a company truck show that the parties were involved in the business of the fourth respondent in their dealings with one another. Without necessarily making a finding of fact on the papers, it seems to me that the applicant has shown that he has a defence which, if proved at the trial, would entitle him to get judgment in his favour. Accordingly, the applicant has a bona fide defence to the applicant’s claim.

In the circumstances, the applicant has established good and sufficient cause for the court to set aside the default judgment given in case number HC 864/11 to the extent that it relates to him.

I do not believe that this is an appropriate case for costs to be ordered against the first respondent for opposing the application. The first respondent did not act unreasonably in seeking to protect the finality of a judgment given in its favour. The appropriate order should be that costs be in the cause.

In the result, it is ordered as follows:

The judgment given in case number HC 864/11 on 26 May 2011 be and is hereby set aside to the extent that it relates to the applicant.

Costs will be in the cause.

Dube, Manikai & Hwacha, applicant legal practitioners

Kawonde & Company, first respondent legal practitioners