Stanley Tsopotsa and Margret Tsopotsa v Ray Bwoni Mpariwa and Fezile Mpariwa

### Preamble
1
HH 746-18
HC 7304/17
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STANLEY TSOPOTSA

and

MARGRET TSOPOTSA

versus

RAY BWONI MPARIWA

and

FEZILE MPARIWA

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE 9 March and 14 November 2018

Opposed Matter

R G Zhuwarara for the applicants

C C Mumba for the respondents

CHITAKUNYE J. The applicants are husband and wife and the respondents are also husband and wife. On the 27th February 2012, the parties entered into an agreement of sale in terms of which the Applicants sold to Respondents an immovable property ,namely, 2200 square meters of Lot 48, Marlborough Township of Marlborough held under Deed of Transfer number 1187/2003. Due to some challenges with the sale transaction on the 17th June 2016 the respondents sued the applicants in HC 6185/16 seeking an order confirming the cancellation of the agreement of sale and ordering the Applicants to reimburse the purchase price of US$ 35 000.00 which the respondents had paid.

The summons was duly served on the applicants on the 23rd June 2016.

The applicants entered appearance to defendant through their legal practitioners on the 28th June 2016. However such notice of appearance to defend was not served on the respondents.

In the meanwhile the respondents had filed an urgent chamber application under case number HC 6510/16 seeking to interdict the applicants from disposing the property in dispute. At the hearing of HC 6510/16 on 30th June 2016 parties agreed that the respondents temporarily stay the action under HC 6185/16 and the application under HC 6510/16 on condition the applicants herein pay amounts claimed therein on or before 31st July 2016. In that regard a Deed of Settlement was executed on 1st July 2016. The applicants did not pay the sums due by the due date.

On the 27th September 2016, the respondents, unaware of the entry of appearance to defend in HC 6185/16, filed a chamber application for default judgement. On the 10th October 2017 the respondents, through their legal practitioners, withdrew the application for default judgment as they had, apparently, become aware that applicants had entered appearance to defend. On that same date the respondents proceeded to file a court application for summary judgment.

At the time of filing the court application for summary judgment, the respondents were not aware that on that same date, 10th October 2017, a default judgement had in fact been granted in pursuant to their chamber application for default judgement filed on the 27th September 2017. It would appear that later, and upon learning that a default judgement had been entered on the 10th October 2017, which is the same day they had withdrawn the chamber application for default judgement and had simultaneously filed the application for summary judgment, the respondents withdrew the court application for summary judgment on the 17th October 2017. The respondents purported to then withdraw the notice of withdrawal of their chamber application for default judgement. This was in an apparent effort to regularise the scenario then obtaining that a default judgement had been granted yet they had filed a notice of withdrawal of the application that had resulted in that judgment.

It is that default judgment granted in the above circumstances that the applicants seek to have rescinded in terms of Order 49 Rule 449(1) (a) of the High Court Rules 1971.

The applicants alleged that the default judgment was granted in error in that they had entered appearance to defend. The applicants averred that had the fact that the appearance to defend had been filed been brought to the attention of the judge seized with the matter, he would not have granted the default judgement.

The respondents opposed the application. In their opposition they did not dispute the sequence of events leading to the issuance of the default judgement as outlined above. If anything respondents confirmed the same. They confirmed that appearance to defend was entered on 28th June 2016 but was not served on their legal practitioners hence their legal practitioners filed a chamber application for default judgment on the 27th September 2016. Upon learning that an appearance to defend had been entered their legal practitioners filed a notice of withdrawal of the chamber application for default judgment and simultaneously filed a court application for summary judgment on the 10th October 2016. At the time of filing the application for summary judgment the respondents’ legal practitioners were unaware that on that same date a default judgment had been granted.

The respondents raised two preliminary points to the effect that:

The applicants are estopped from seeking the prayer sought in this application because it is contrary to their undertakings in the deed of settlement which they voluntarily executed under reference case number HC 6150/16; and

That the applicants have filed the present application out of time. Although the present application does not have a specific dies induciae, same was not filed within a reasonable time as contemplated by the Rules and to the extent that no condonation has been sought, the applicants are barred from appearing before this court.

On the merits, the respondents’ contention was to the effect that there was no valid notice of appearance to defend in terms of Rule 49 and so the judgement was not entered in error.

PRELIMINARY POINTS

Whether the applicant are estopped from seeking the relief of rescission of the judgement because of the Deed of Settlement they entered into on 1st July 2016 under HC 6510/10.

A deed of settlement may be viewed as a compromise whereby in a bid to settle the dispute parties resolve to compromise on their respective positions. The principles of compromise are thus applicable in a deed of settlement.

In Georgias & Another v Standard Chartered Bank of Zimbabwe Ltd 1998(2) ZLR 488(S) at 496D-G GUBBAY CJ alluded to the principles of compromise as follows:

“Compromise, transactio, is the settlement by agreement of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something-- either diminishing his claim or increasing his liability. See Cachlia v Harberer & Co. 1905TS 457 at 462 in fine; Tauber v von Abo 1984 (4) SA 482 (E), at p 485G-I; Karson v Minister of Public Works 1996 (1) SA 887 at 893F-G.The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved. See Nagar v Nagar 1982 (2) SA 263 (ZH) at 268E – H.”

Evidently therefore, a compromise is not only an offer and an acceptance as in any contract.  It is an offer and an acceptance as in any contract, but also in respect of, inter alia, terms in dispute, or issues uncertain. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless there was reserved the right to go back thereto.   Other instances when the cause of action is not extinguished include where the compromise was induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission. In such instances, a compromise is voidable at the instance of the aggrieved party, even if made an order of court.

See Beauty Sebia v Murumbi Gardens Clinic Trust HH 184/16.

In casu, the applicants argued that there was an exception in the form of reservation.

In order to ascertain whether there was reservation or not it is pertinent to have regard to the terms of the Deed of Settlement.

In casu the deed of settlement provided as follows:

The legal proceedings under case numbers HC 6185/16 and HC 6510/16 be temporarily stayed, pending payment of the amounts claimed by the Plaintiffs (Applicants herein) from the defendants (1st and 2nd respondents herein) under case No. HC6185/16, or agreement between the parties with regard to satisfactory arrangements in that regard, on or before 31 July 2016.

In the event of failure to agree as set out in Clause 1 above, the Applicants (Plaintiffs under case no HC 6185/16) may proceed with the proceedings under case No. HC 6185/16 from August 2016.

1st and 2nd Respondents undertake, pending full and final payment to the plaintiffs (Applicants herein) in terms of Clause 1 above, or final determination of the matter under case No. HC6185/16, not to sell or dispose of the property, namely Lot 48 Marlborough Township of Marlborough, held under Deed of Transfer No. 1187/2003. The 1st and 2nd Respondents undertake, in that event, to lodge the original title deeds of the said property with the Applicants’ legal practitioners of record.”

It is apparent from the above that what is portrayed as a deed of settlement was not a final settlement of the original cause of action that existed between the parties. It was a temporally stay of the court action and respondents reserved the right to proceed with the action in HC 6185/16. On their part, the applicants were interdicted from disposing of the property pending the final determination of HC6185/16. In that regard it is safe to say the reservations were such that parties were to proceed with the original cause of action in the event of failure to pay or to make satisfactory arrangements in that regard. That cause of action was thus not extinguished by the compromise.

The respondents’ conduct upon failure of the agreement confirms this as much in that respondents reverted to the original cause of action and picked up from where they had left the process.

I am thus of the view that applicants are not estopped in the circumstances. They are entitled to defend the action if they believe that they have a defence.

The next preliminary point was to the effect that the applicants have not filed the application within a reasonable time.

The respondents contended that though rule 449 does not prescribe the period within which an application under this rule must be made, it is evident from case authorities that such applications must be brought within reasonable time. An inordinate delay in bringing such application would result in a party being barred. The question is thus whether there was an inordinate delay in filing this application such that the applicants may be deemed barred?

In Milton Gardens Association & Another v Mvembe & 3 others HH 94-16 at pp6-8 of the cyclostyled judgment DUBE J aptly opined that:

“Rescission under r 449 is distinct from that brought in terms of r 63. Rule 63 makes provision for the time within which an application for rescission of a judgment or order is to be brought. An application under r 449 is not time barred. Although r 449 does not set time frames within which rescission of a judgment should be sought, it is required that a r 449 application be made expeditiously. The nature of the application envisaged under r 449 is one where an applicant is expected to take expeditious steps to vacate an obviously erroneous order. It was not envisaged that a party who is aware of an erroneous order would delay in bringing the application and hence the lack of a provision setting out the time frames within which the application for rescission under r449 is required to be brought.”

Further on, the leaned judge noted that:

“There is no provision requiring an applicant who has delayed in bringing an application under r 449, to explain the reasons for the delay in bringing the application in terms of our rules. Case authority makes it clear that a party who delays in taking remedial measures to correct an order erroneously sought or granted may be taken to have acquiesced to the order.  The court will only  exercise its discretion favourably towards a  litigant  who has had  a judgment awarded against  him, who through no fault of his, was not afforded an opportunity to oppose an order and  who upon being aware of the order takes expeditious steps to correct the order. A person bringing the application is expected to take expeditious steps to have the position rectified within a reasonable time. If the application is not so made, an applicant is non- suited.

The purpose of this requirement is to ensure relative certainty and finality of matters. Whilst the rules do not require that a party who has delayed in bringing the application make an application for condonation of the late filing of the application, a statement explaining the circumstances surrounding the delay is pertinent and should form part of his application. The purpose of this is to equip the court in assessing the reasonableness of the delay. Failure to do so results in his application being thrown out.”

See also: Herbstein and van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed. at p 930 and Grantully and Another v UDC 2000(1) ZLR 361(SC).

In the Milton Gardens case (supra), the applicant had delayed for about three and half years in bringing the application and the judge ruled that to be inordinate delay.

In casu, it is common cause that soon after learning of the default judgement the applicants filed an application in terms of Order49 r 449(1) (a) on the 7th November 2016 which was within a month from when the judgement had been entered. That application was however fatally defective as the founding affidavit whilst in the name of the 1st applicant, had been signed by an agent. Applicants indicated that their erstwhile legal practitioners had advised them that this was proper. However, that application was withdrawn at a court hearing when the presiding judge pointed out the fatality of the defect. As soon as that application was withdrawn the present application was filed on the 7th August 2017. In the circumstances the applicants argued that there was no inordinate delay. The delay in filing this application was a period of about 10 months from the date of the judgement and certainly less than that from when the applicants became aware of the default judgement.

The applicants’ explanation shows clearly that they had been intent on applying for rescission of the default judgement in terms of rule 449 from the time they learnt of the judgement. They did not just sit on their laurels but filed an application expeditiously. But for the ill advice by their erstwhile legal practitioner leading to the deposing of a fatally defective founding affidavit, the issue of whether to rescind the default judgement in terms of rule 449 would have been determined the first time the matter was placed before a judge.

It is true that  litigants may not always escape the tardiness or lack of diligence on the party of their chosen legal practitioners The circumstances of each case must however be considered in determining whether a litigant should escape or not escape the consequences of the  tardiness or lack of diligence on the part of his/her legal practitioner.

See S v McNab 1986(2) ZLR 280(S) and Mubvimbi v Maringa & Another 1993 (2) ZLR 24.

In casu, the applicants expeditiously instructed their legal practitioner and were made to believe their duly appointed agent can depose to the founding affidavit in their names. This was legal advice they had to rely on. It would be unfair and an act of grave injustice considering that the advice given to applicants was something they would not have been expected to know as lay persons. They had their trust and faith in the chosen legal practitioners. It may also be noted that the delay occasioned by the filing of defective founding affidavit was not inordinate in the circumstances of this case. It is my view that considering that the applicants are based abroad and had to act through an agent, it cannot be said with any seriousness that they did not act expeditiously upon learning of the default judgement.

I thus hold that the delay was not inordinate and there was no need for applicants to firstly seek condonation for the delay in filing the present application for rescission of the default judgement.

ON THE MERITS

The applicants averred that the default judgement was granted in error as they had filed their notice of appearance to defend timeously. The failure to serve the notice of appearance to defend on the respondents did not invalidate the appearance to defend filed of record but only rendered the notice irregular.

The respondents on the other hand contended that the failure to serve the notice of appearance to defend invalidated the notice of appearance thus the position was just as if no appearance had been entered. The notice was thus a nullity.

In furtherance of their application for the setting aside of the judgement on the basis of having been granted in error the applicants pointed out that the error was twofold; firstly, that there was in fact an appearance to defend which had been filed of record and secondly, that in any case, the application for default judgement had been withdrawn therefore default judgement could not be granted in the circumstances.

Rule 449(1) (a) which applicants rely on provides that:

“(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 -

that was erroneously sought or erroneously granted in the absence of any party affected thereby; or…...”

The purpose of r 449 is to enable the court to revisit its orders and judgments to correct or set aside any orders or judgments given in error where to allow such to stand on the excuse that the court is functus officio would result in an injustice and would destroy the basis on which the justice system rests.

Rule 449 is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way. The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the error or judgment. See Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H) @472 D-E See Grantully Private Limited v UDC Ltd 2000 (1) ZLR 361 (S).

In the South African case of Mutebwa v Mutebwa 2001 (2) SA 193  the equivalent rule to our r 449 was discussed and it was held that there are three requisites that have to be satisfied for relief to be obtained in terms of this rule;

That the judgment was erroneously sought and granted

That the judgment was granted in the absence of the applicant

That the applicant’s rights or interests are affected by the judgment.

In casu, it is common cause that the default judgement was granted in the absence of the applicants and it affects them. The issue is whether the judgement was erroneously sought or erroneously granted. It is in this regard that applicants argued that in as far as they had filed their notice of appearance to defend, the judgement was granted in error as it was premised on the assertion that they had not entered appearance to defend.

The respondents on the other hand contended that there was no valid notice of appearance to defend in as far as the applicants had not served the notice of appearance to defend on the respondents. Respondents contended that in terms of rule 49 the notice of Entry of Appearance to Defend must be served on the plaintiff within 24 hours of entry for it to be valid. In casu, as the applicants did not serve their notice on the respondents either at the time the default judgment was entered or at all it follows that the purported notice of entry of appearance to defend is invalid.

Rule 49 which respondents sought to rely on provides that:

“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.”

As is evident, that rule pertains to a procedural requirement for service of the notice of appearance to defend on the plaintiff. It does not, however, state the consequences of failure to serve within the stipulated time. It does not even define entry of appearance to defend to mean or to include service of the notice of appearance to defend.

Rule 48 which provides for entry of appearance to defend equally does not state that such entry is invalid if it is not served on the plaintiff. That Rule provides that:-

“Entry of appearance to defend shall be effected by the defendant or his legal practitioner who shall record in the appearance book at the registry where he has been called upon to enter appearance—

(a) the title and number of the action;

(b) notification of his intention to defend;

(c) an address called an address for service which shall be within a radius of five kilometres of the registry;

(d) his postal address;

(e) the date of entry;

and shall sign the entry thus made.

Such notice shall be in Form No. 8.”

It is my view that failure to serve on the plaintiff does not per se invalidate a notice of appearance to defend.

Rule 50 which respondents sought to also rely on in contending that failure to comply with rule 49 renders the filed notice of appearance to defend invalid states that:-

“A defendant who has failed to enter appearance shall be deemed to be barred.”

It must be clear that it is the failure to ‘enter appearance to defend’ as required in terms of rule 48 that leads to a party being barred. In casu, applicants filed the notice of appearance to defend timeously but failed to serve on the other party.

The consequence of such failure was alluded to in Banda v Pitluck 1993(2) ZLR 60(H) at 64F-G, where, as in this case, the defendant had filed his notice of appearance to defend but had failed to serve same on the plaintiff’s legal practitioners in terms of rule 49. ROBINSON J opined that:

“in my view, when considering the question of rescission of a default judgement under rule 449(1)(a) on the ground that it was ‘erroneously granted in the absence of any party affected thereby’, once court finds, as it has found in this case, that the judgement was erroneously granted against the defendant, either because of an error on the part of the judge before whom the application for default was placed in failing to observe the notice of appearance to defend contained in the court file or, as is much more likely, because of the absence of the notice of appearance to defend in the court file through delay on the part of the Registry staff in placing the notice in the court file, then that is an end to the matter and the court should rescind the judgment,….” [emphasis is mine]

The views of the Honourable judge were buttressed by a number of authorities cited therein. In Herbstein and van Winsen The Civil Practice of the High Courts of  South Africa 5th ed, at p 512 the authors, in discussing circumstances when a notice of appearance to defend will be irregular, stated, inter alia, that:-

“(b) A notice of intention to defend will be irregular if the defendant, having filed the original notice with the registrar, fails to serve a copy on the plaintiff or attorney. By analogy with the former Cape practice [which I would add, is the practice which was followed by our courts and which, in terms of Cape rule 17(3), required the defendant to give notice in writing of entry of appearance to the plaintiff or his attorney], it is submitted that in the event of such failure, the plaintiff will be entitled to assume that notice of intention to defend has not been given. If, however, he does so and moves for judgment, the court will not grant judgment, but will order the defendant to pay the wasted costs occasioned by his omission.”

It is thus apparent that whilst the notice of appearance to defend is irregular for not having been served on the plaintiff, that does not entitle plaintiff to a default judgement especially where as in this case the notice had been filed within the stipulated period albeit not served on the plaintiff.

This court reiterated the position in Pinelong Investments (Pvt)Ltd v Vallance & Another 2009 (2)ZLR 334, when faced with a similar scenario whereby notice of appearance to defend had been timeously filed but not served on the plaintiff in terms of rule 49 when it held that:-

“… a notice of intention to defend, consequent upon the service of a summons will be 	irregular if the defendant, having filed the original notice with the registrar, fails to 	serve a copy on the plaintiff or his legal practitioner. In the event of failure to serve the notice 	in this manner, the plaintiff will be entitled to assume that notice of intention to defend has 	not been given. If, however, the plaintiff does so and moves for judgment, the court will not 	grant judgment, but will order the defendant to pay the wasted costs occasioned by his 	omission. Rule 50 provides the sanction (barring) for failure to enter appearance in terms of 	rule 48, but the Rules provide no sanction for failure to serve the notice in terms of r 49. …”

In casu, it is common cause that when the default judgement was granted on the premise that defendants had not entered appearance to defend, the notice of appearance to defend had been filed. The judgment was therefore granted in error.

In applications under r 449 there is no requirement that an applicant must show good and sufficient cause as required under rule 63. Thus once court has made a finding that the default judgment was erroneously sought and granted, the judgement should be rescinded without further ado.

The second rung of the applicants’ argument that the application for default judgement had been withdrawn and so the default judgement ought not to have been granted was not sustainable. The argument presupposes that the Notice of withdrawal of the application for default judgment was filed before the default judgement had been granted. That presupposition was without any support from the papers filed of record. What is clear is that the default judgement was granted on the same date that the respondents filed the notice of withdrawal of the application for default judgment. There is no indication regarding the times of the granting of the default judgement and the filing of the notice of withdrawal for me to determine which process preceded the other. Nothing will thus turn on this point.

On the issue of costs the applicants argued that respondents be ordered to pay costs as they clearly sought to cling onto a judgement when it was clear that the default judgement was granted in error as applicants had filed their notice of appearance to defend. The respondents on the other hand contended that applicants must bear the costs of this application. As noted in Pinelong Investments (Pvt)Ltd v Vallance &Another (supra) where the plaintiff has been made to apply for default judgement as a result of defendants’ failure to serve the notice of appearance to defend the plaintiff would be entitled to costs, and not to judgement in his favour. The costs are awarded because of the failure by defendant to serve the notice of appearance as such service would have obviated the need to apply for default judgement. In casu, the respondents’ attitude of opposing the application for rescission of the default judgement when it was common cause that appearance to defend had been filed timeously, is akin to snatching a judgement and choosing to cling onto it. Such conduct in my view must be frowned upon. As a result respondents will pay costs for this application even though they had been made to apply for default judgement due to the failure by applicants to serve the notice of appearance to defend upon them or their legal practitioners.

Accordingly it is hereby ordered that-

The Default judgement granted on the 10th October 2016 in HC 6185/16 in favour of 1st and 2nd respondents be and is hereby set aside.

The respondent shall pay costs of this application on the ordinary scale.

Scanlen and Holderness, applicants’ legal practitioners.

Chitewe Law Practice, r espondents’ legal practitioners.