Tendai Masike v Peterhouse School

### Preamble
1
HH 645-18
HC 2815/18
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TENDAYI MASIKE

versus

PETERHOUSE SCHOOL

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 4 October 2018

Opposed Application

B. J Matenga, for the applicant

T Chagudumba, for the respondent

HUNGWE J: Applicant seeks condonation for the late filing of an application for rescission of judgment entered against him in default by this court on 22 September 2017.

He seeks that order on the following averments. He had left Zimbabwe for the United States of America (“USA”) in 1999 and had acquired American citizenship. He has not resided in Zimbabwe since then. When summons were issued on 30 June 2017 he was in Afghanistan. He went back to the USA on 17 October 2017. The summons was served at Carrington Avenue, Paradise Park, Marondera where his estranged wife resides. His wife, Georgina Masike, erroneously instructed Gunje & Partners to file an appearance to defend on his behalf. He had not authorized her to give such a mandate to this firm of lawyers. When he challenged their authority to have done so, the lawyers withdrew the notice of appearance to defend. In the absence of appearance, the respondent took out judgment in default of appearance.

On 29 January 2018 he learnt from Georgina Masike that judgment had been entered against him and that the Sheriff had gone to 51 Carrington Avenue, Paradise Park, Marondera to attach property in satisfaction of the writ of execution issued in pursuance of that judgment.

As he was out of the country throughout the period during which summons were issued and default judgment entered against him, applicant believed that there must have been an error leading to the judgment. In the first place process was not served on him personally nor, he contended, was  service effected on a responsible person at his residential address as contemplated in Order5 Rule 2 (a) and 2 (b). He explained the delay in making an application for condonation thus; he learnt of the default judgment when he in Afghanistan, a war zone.  He needed to file notarized documents. This could only be done at the American Embassy in Kabul. It took time for him to be able to gain access to the legal section of the embassy. He also to rely on Georgina Masike to put together the relevant papers for his legal practitioners’ use. As a result he was some two months out of time.

On the merits, he contended that as he had not at any time entered into any contract with the respondent over the school fees issues relating to their son, Takunda Masike, there was absolutely no basis for the claim by the respondent school’s against him. The school had dealt with Georgina Masike. The school therefore was obliged to look to her for the due performance of the obligations flowing out of that contract. In any event, he had not been served with the summons as he was never in Zimbabwe since 1999.

The respondent disputes these claims as misleading. It says that there is no divorce between applicant and Georgina; as such, at all material times 51 Carrington Avenue, Marondera, was his principal address and matrimonial home. Service at this address constituted proper service in terms of the rules of this court. Respondent points to the fact that applicant entered an appearance to defend through his own lawyers. Further, he had instructed them to withdraw the notice of appearance. In any event, applicant had not attached an affidavit from either the estranged wife or the legal practitioners who he blames for his predicament confirming his averments. The respondent also point to the fact that applicant was not being truthful as he learnt of the judgment in August 2017 when his lawyers wrote to the respondent’s lawyers indicating that they had advised applicant to ignore legal process.

As such, this is a classic case of willful default as the default was understandingly and deliberately decided upon on legal advice.

In terms of r 63(1), a defendant against whom a default judgment has been granted has a period of one month, from the time he becomes aware of the judgment, within which to file an application for the rescission of that judgment. If he does not make the application within that period but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application. This should be done as soon as he realised that he has not complied with the rule. If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for the rescission of the default judgment, but also for the delay in seeking condonation.

As STEYN CJ said in Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H:

“What calls for some acceptable explanation, is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.''

See also Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR (2) 249 (SC).

As already pointed out, an application for rescission of a default judgment must be made not later than a month after the affected person became aware of the judgment. (Rule 63 of the High Court Rules).  If there is any delay beyond that time, an application for condonation must be made and an explanation for the delay must be given. The factors which a court will take into account in the determination were set out in Bishi v Secretary for Education 1989 (2) ZLR 240 where this court stated that:

“The factors to be taken into account in considering whether good cause has been shown to justify the court granting condonation include:

(a)	the degree of non-compliance with the rules;

(b)	the explanation therefor;

(c)	the prospects of success on the merits;

(d)	the importance of the case;

(e)	the  convenience of the court;

(f)	the avoidance of unnecessary delay in the administration of justice.”

In the consideration of each of these factors, none of each of them is decisive, as the court weighs each against the other, depending on the particular facts of each case. Thus despite the wide berth by which a party has failed to comply with the rules, such failure may be compensated by convincing explanation for the non-compliance; or the preponderance of the prospects of success in the application for rescission and so on.

An explanation which attributes the blame for the delay to the party's legal practitioner will usually be unavailing; non-compliance with or a wilful disdain of the Rules by a party's legal practitioner will be treated as non-compliance or a wilful disdain by the party himself. This will be the case even where the affected party has an arguable case on the merits.

Applicant sought to explain his failure to file the application for rescission within the time stipulated in the Rules of Court by indicating that at the time he was in a war zone in Afghanistan. He experienced severe difficulty in getting the affidavits required by his attorneys in order to mount the rescission application since he needed to have these executed before a notary public. Even so, he had to rely on his estranged wife upon who service had been effected to get the details of what process was available. All these factors conspired against him thereby delay the filing of process. The respondent disputes the fact that he is divorced from his wife, Georgina because, whilst the parties initiated divorce proceedings by issuing out summons, the matter has not been prosecuted to finality and, presently the record has since been archived. As such service on the Marondera residence, (which applicant avers he hasn’t set foot on) is proper. In any event, so the respondent’s argument went, applicant instructed legal practitioners who filed process on his behalf but has not secured an affidavit from them to confirm his averments in the present proceedings. He decided to ignore due process; as such applicant made his bed and must lie on it.

Whilst this may be so, I am of the view that respondent, has not satisfactorily dealt with specific averments made in applicant’s affidavit which highlight the brightness of the prospects of success in the application for rescission by the applicant. Firstly, applicant poignantly states that he has no contract with the respondent the basis upon which respondent could have founded its claim. Secondly, applicant also avers that since 1999, he has not been to Zimbabwe, let alone the address where service was effected. It seems to me that if these averments are true, applicant has bright prospect of success in the intended application for rescission. The fact that applicant has not attached an affidavit from Gunje and Partners should be understood in light of the fact that these legal practitioners may have feared the consequences of admitting acting without a mandate in light of the fact that they were clearly conflicted unless the divorce matter in which they acted for the wife had been resolved. They would have needed a written instruction to handle applicant’s affairs, which clearly they did not have, hence the invidious position they placed themselves. I therefore attach little importance to the failure by applicant to attach any document in support of his case from the lawyers who filed the appearance to defend.

These are factors which, in my view if established by the applicant at trial, will entitle him to succeed in his defence against claims by the respondent.

I am therefore satisfied that on a balance, the applicant has discharged the onus on him to satisfy the court that he has good cause for the relief that he seeks. He is therefore entitled to the grant of the indulgence of condonation for his failure to file an application for rescission within a month.

Application is granted with costs.

Wintertons, applicant’s legal practitioners

Messrs Atherstone & Cook, respondent’s legal practitioners