Mutsa Washe (Zavea) (Private) Limited and Xebio Chaitezvi v Ushehwekunze Housing Co-operative Society Limited

### Preamble
1
HH 75-22
HC 3998/21
---------




MUTSAWASHE (ZAVEA) (PRIVATE) LIMITED

and

XEBIO CHAITEZVI

versus

USHEHWEKUNZE HOUSING CO-OPERATIVE SOCIETY LIMITED

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 18 January, 2022 and and 03 February 2022

Opposed Application

Mr.  G.  Tapera, for the 1st and 2nd applicants

Mr. N. Chikono, for the respondent.

DEME J:  The first and second applicants approached this court seeking the relief for the rescission of default judgment. More particularly, the draft order filed by the first and second applicants is as follows:

“1. Default judgment granted by this Honourable Court on 23rd day of June 2021 be and is 	hereby rescinded.

2. The Applicant be and is hereby given leave to defend the main action HC 1255-21.

3. Costs be in the main cause.”

Circumstances leading to the present application are as follows. According to the applicants, the applicants filed an urgent chamber application before this court against Noah Chirara, Victor Mhlanga and Andrew Mugomezi. On 9 July 2020, the applicants obtained against Noah Chirara, Victor Mhlanga and Andrew Mugomezi an order for restoring piece of land to them, the applicants. The terms for the interim relief are as follows:

“Pending the return day, it is hereby ordered

The 1st, 2nd and 3rd Respondents and all those claiming occupation through one or all of them be and are  hereby ordered to restore possession to Applicant of certain piece of land being 50 hectares of land in Saturday retreat green belt Ushehwekunze, Harare.

The 1st, 2nd and 3rd Respondents and all those claiming occupation  one or all of them be and are hereby ordered to stop construction operations on certain piece of land being 50 hectares of land in Saturday  retreat green belt Ushehwekunze, Harare.”

On 18 and 19 November 2020, the Sheriff with the assistance of police evicted Noah Chirara, Victor Mhlanga and Andrew Mugomezi from the disputed premises using the court order, according to the applicants. Sometime in March 2021, the respondent filed application for interdict under case number HC 225-21 and subsequently served the applicants with the application. The applicants filed their opposing papers on 18 March 2021.  The respondent withdrew the application on 7 April 2021.

After withdrawing its case, on 7 April 2021, the respondent filed another court application for interdict under case number HC 1255-21 which was served upon the applicants’ legal practitioners on the same day. However, the applicants averred that at the material time, the legal practitioners for the applicants had no authority to accept service on behalf of the applicants.

The applicants further averred that their present legal practitioners, on 8 April 2021, advised them of the court application received and consequently they instructed their legal practitioners to prepare notice of opposition and opposing affidavit. The applicants further averred that the ten day period within which they were to file the notice of opposition began to run on 9 April 2021 after they have given mandate to their legal practitioners to represent them. On the other hand, the respondent is disputing this averment. According to the respondent, the ten day period began to run on 8 April 2021.

The applicants averred that the second applicant was served with a copy of default judgment under case number HC 1255-21 by the Member-in-Charge for Southerly Park Police Station. The applicants further averred that their legal practitioners had filed notice of opposition and opposing affidavit on their behalf but the filed papers had a wrong case number. The default judgment is as follows:

“1. The respondents be and are hereby ordered not to evict people occupying the land allocated 	to the applicant called Saturday Retreat Farm thereof demolishing their structures without an 	order granted by a court of competent jurisdiction.

2. The respondent be and is hereby ordered not to vandalise the infrastructure namely the water 	and sewer reticulation pipes installed by applicant in the said area.

3. The respondent be and is hereby ordered not to allocate any other third parties pieces of land 	at the said land.

4. The respondent shall not interfere with applicant’s occupation and use of the land 	aforementioned at all directly and indirectly.

5. The respondent pays costs of suit on a party and party scale.”

At the hearing, the applicants’ counsel, Mr. Tapera raised the point in limine to the effect that the deponent of the opposing affidavit, Fungai Nyarota,   was not properly before the court. He further submitted that Fungai Nyarota is no longer the chairperson of the respondent and as such he has no lawful authority to depose to the opposing affidavit. Mr. Tapera further submitted that the chairperson of the respondent is Mr. Karimanzira according to Annexure B. annexed to the answering affidavit.   The applicants’ counsel  moved the court to expunge the opposing affidavit.

On the other hand, Mr. Chikono, on behalf of the respondent, submitted that at all material time, Fungai Nyarota was the chairperson of the respondent. He was authorised by the respondent to depose to the opposing affidavit through the minutes attached to the opposing affidavit as Annexure A. Thus, Fungai Nyarota was properly before the court, according to Mr. Chikono’s submissions. Mr. Chikono further submitted that the applicants sought to mislead the court as there was no similar objection in the previous matters filed with this court.  Mr. Chikono further submitted that Fungai Nyarota assumed the office of chairperson in 2016.

With respect to the representation of juristic persons before a competent court, Hebstein and Van Winsen, commented as follows:

“since an artificial person, unlike an individual, can function only through its agents, 	and can take decisions only by passing of resolutions in the manner prescribed by its 	constitution, it cannot be assumed, from the mere fact that proceedings have been 	brought in its name, that those proceedings have in fact been authorised by the artificial 	person concerned.”

The Applicants made bald assertions that are not substantiated by any documentation. Annexure B to the answering affidavit which the applicants sought to rely upon for discrediting Fungai Nyarota was written by Ministry of Local Government to the respondent in 2005 addressed to the former chairperson, Mr. Karimanzira. According to Mr. Chikono, Fungai Nyarota only assumed office in 2016. By 2005, he was not in office.  In the absence of the latest documentation, I find no favour with the point in limine raised by the Applicants’ counsel. Thus, I dismiss the point in limine.

With respect to merits, Mr. Tapera submitted that the Applicants’ case has satisfied all the requirements of the present application. He further submitted that the applicants have offered reasonable explanation for the default and the default was not wilful. He also submitted that the applicants acted swiftly to remedy the defect and thus had no intention of delaying justice but rather they wanted to seek justice in the main matter. Mr. Tapera further submitted that the applicants have prospects of success in the main matter.

Mr. Chikono, on behalf of the respondent, submitted that the applicants have failed to offer reasonable explanation. He also submitted that there is no explanation why the applicants’ affixed the wrong case number to the notice of opposition. He also submitted that the applicants will suffer no prejudice if the judgment is not rescinded a point which was vehemently opposed by the applicants’ counsel who submitted that the applicants are labouring under reasonable apprehension that the respondent may evict the applicants and resell the land occupied by them. Mr. Chikono also submitted that the applicants are relying on a verbal allocation of land by the former resident Minister. Hence their case lacks merits, he also submitted.

When this present application was filed, the High Court Rules, 1971 were still in force. The recently promulgated High Court Rules became operational on 23 July 2021. This matter was filed on 20 July 2021.  Thus, I will refer to r 63 of the 1971 High Court Rules. r 63 of the High Court Rules, 1971 provides as follows:

“63.(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 the action, on such terms as to costs and otherwise as the 	court considers just.

(3) Unless an applicant for the setting aside of a judgment in terms of these rule, proves to the 	contrary, he shall be presumed to have had knowledge of the judgment within two days after the 	date thereof.”

Default judgment was handed down on 23 June 2021. The present application was filed on 20 July 2021, twenty-seven days after the default judgment. Thus, the present application was filed within the prescribed time.

In defining the “good and sufficient cause”, the case of Stockil v Griffiths, is very pertinent where the Supreme Court held that:

“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 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 McDonnell 1986 (2) ZLR 216(S) at 226E-H; Songore v Olivine Industries (Pvt) 	Ltd 1988(2) ZLR210(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 judgement; and

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.”

The applicants’ explanation for the default is reasonable on a balance of probability. Their legal practitioners filed the notice of opposition bearing wrong case number. However, I do not subscribe to their calculation for the dies induciae. The ten day period began to run on 8 April 2021. The legal practitioners for the applicants were served with the court application on 7 April 2021. The explanation offered by the applicants that the legal practitioners did not have authority to accept service and hence the dies induciae should only begin to run after they have instructions is misplaced. The applicants’ counsel did not highlight any authority to substantiate his assertions. The High Court Rules do not provide for this. r 232 of the High Court Rules, 1971, which was in force at the time when the notice of opposition and opposing affidavit were supposed to be filed, provides as follows:

“The time within which a Respondent in a court application may be required to file a notice of 	opposition and opposing affidavits shall be not less than ten days, exclusive of the day of 	service, plus one day for every additional 200 kilometres or part thereof where the place at 	which the application is served is more than 200 kilometres from the court the application is to 	be heard:……”.

However, due to the mistaken belief held by applicants’ legal practitioners that they duly filed the notice of opposition and opposing affidavit within the dies induciae I may condone that error. I do not believe that the error was wilful or contemptuous. It is in the best interest of justice that the applicants be given benefit of doubt.

There is no fixed rule in the exercise of the court’s discretion. The discretion should be exercised in the interest of justice. The court is supposed to examine all surrounding circumstances.  In the case of Cairns Executors v Goarn, the court emphasised the following:

“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”.

With respect to the prospects of success and defence to the main matter, the applicants’ right to remain at the disputed property is rooted in the provisional order handed by my brother Tagu J. on 9 July 2020. The provisional order is still extant. The respondent has not challenged this to date. Rather, the respondent chose to file a separate application. According to the judgments held by both parties, there is no sufficient description of the land for the parties. Thus, if this present application is granted, the parties will resolve their boundary disputes which they are likely to have as a result of the lack of sufficient description of the disputed properties. In light of this the Applicants’ case is reasonably arguable. Thus, I am of the considered view that the Applicants have prospects of success and defence to the main matter.

I have no reason to believe that the Applicants’ default was wilful especially given the fact that the Applicants had religiously defended their rights in the similar matter which was withdrawn.

In the circumstances, the Applicants must be entitled to the relief sought. With respect to costs, it is just and equitable that costs be in the cause.

Resultantly, it is ordered as follows:

The default judgment granted by this Honourable Court on the 23rd day of June 2021 be and is hereby rescinded.

The Applicants be and are hereby granted leave to defend the main application in HC 1255-21.

Costs shall be in the cause.

Tapera Muzana and Partners, first and second Applicants’ Legal Practitioners

Moyo Chikono and Gumiro, Respondent’s Legal Practitioners.