The Minister of Local Government and National Housing and Minister of Justice and Legal Affairs v Langton Chigwida and J Kmwatsiya

HH 02/11
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THE MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING
and
MINISTER OF JUSTICE AND LEGAL AFFAIRS
versus
LANGTON CHIGWIDA
and
J KMWATSIYA


HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 25 February 2010 & 12 January 2011

Opposed Matter


N Mutsonziwa, for the applicant
P Chiutsi, for the 2nd respondent

       CHATUKUTA J: This is an application for rescission of two judgments entered
against the applicant in case No. HC 6759/2000 and case No HC 6442/00 both granted on
6 February 2002 in favour of the 1 st and 2nd respondents respectively. The matters had
been consolidated into one by an order of the court granted on 16 January 2001.
       The background to the matters is that 1st respondent was the Director of Prisons
and the 2nd respondent was an Assistant Commissioner of Prisons. Prior to their leaving
the prison services, they had been in occupation of properties belonging to the
government. When they left the service, the applicants instituted proceedings for their
eviction. The respondents defended the actions on the basis that government had offered
to sell then the houses and they had accepted the offer. There was therefore a binding
agreement of sale between the two.
       The trial commenced and was due for continuation on 6 February 2002 at 10am
before BLACKIE J. However, the applicants’ counsel did not appear for the hearing at
the set down time leading to the court dismissing the applicants’ claim at 11:30am. The
applicants now seek an order for the rescission of the judgments in terms of r 63 of the
High Court Rules, 1971.
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       A rescission of judgment under r 63 can only be granted where an applicant
shows “good and sufficient cause” for the rescission. The words 'good and sufficient
cause' have been construed to mean that the applicant must:
       (a)     give a reasonable and acceptable explanation for his/her default;
       (b)     prove that the application for rescission is bona fide and not made with the
               intention of merely delaying plaintiff's claim; and
       (c)     show that he/she has a bona fide defence to plaintiff's claim.
(see Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210,; Bishi v Secretary for
Education 1989(2) ZLR 240 (HC); Ndebele v Ncube 1992(1) ZLR 288(S) Dewera Farm
(Pvt) Ld & Ors v Zimbabwe Banking Co-operation 1997 (2) ZLR 47 (H) Zimbabwe
Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) and Apostolic Faith
Mission in Zimbabwe & others v Titus I Murufu SC 28/03)
       The applicants’ explanation for the default is that their erstwhile counsel from the
Attorney General’s office, Mrs Matanda-Moyo, was appearing in the Supreme Court
between 9am and 1300hrs. She instructed Mr Majuru from the same office to contact the
respondents’ counsel, Mr Chiutsi and request him that the matter be stood down to
1415hrs. Mr Majuru did so. She was surprised when she arrived at court at 1415 to be
advised that the claim had been dismissed in the morning. Mr Majuru deposed to a
supporting affidavit dated 26 March 2002 which was filed together with the answering
affidavit explaining the nature of his discussions with Mr Chiutsi.
       Mr Chiutsi deposed to the supporting affidavit to the opposing affidavit and
denied that he had agreed that the matter be stood down to 1415hrs. He explained that
when he spoke with Mr Majuru, his understanding was that an officer from the Attorney
General would come to court at 1000hrs and make the necessary application. The court
waited until 1130hrs and when no officer came from the Attorney General’s office
dismissed the claim.     The respondents challenged the admission of Mr Majuru’s
supporting affidavit on the basis that it should have been filed together with the founding
affidavit and not the answering affidavit as it raised issues that the applicants were aware
of at the time of the filing of the founding affidavit and was deposed to by the person
whom the applicants blamed for the confusion leading to the dismissal of the action.
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       The first question before me is whether or not the explanation advanced by the
applicants for their default is a reasonable and acceptable explanation. It appears to me
that the explanation is indeed reasonable. The respondents did not challenge that Mrs
Matanda-Moyo had indeed been in attendance in the Supreme Court between 0900hrs
and 1300hrs. They did not dispute that Mr Majuru contacted Mr Chiutsi explaining Mrs
Matanda-Moyo’s predicament. Its is also not disputed that Mrs Matanda-Moyo was more
familiar with the matter and that it was desirable that she continued representing the
applicants. It is a recognised practice that the proceedings before the Supreme Court
takes precedence over proceedings in lower courts. The explanation that Mrs Matanda-
Moyo had to appear before the Supreme Court first is reasonable.
       The Attorney General’s office might have been negligent in not sending an officer
to apply for the matter to be stood down for the afternoon, but, it cannot be said that it
took a conscious decision to refrain from appearing. Further, the negligence in my view
was not so gross as to amount to wilfulness. In Zimbabwe Banking Corp v Masendeke
1995 (2) ZLR 400 (S), McNally JA observed, at 403A that:


       "The wilfulness of a default is seldom, if ever, clear-cut. There is almost always an
       element of negligence, and the question arises whether it was gross negligence and
       whether it was so gross as to amount to wilfulness. And in coming to a conclusion there
       is a certain weighing of the balance between the extent of the negligence and the merits
       of the defence.” (See also V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 at
       381A)

       Given the actions taken by both Mrs Matanda-Moyo and Mr Majuru to ensure
that Mrs Matanda-Moyo’s predicament was brought to the attention of the respondents
and the court, the failure to send an officer to apply for the matter to be stood down does
not in my view amount to gross negligence. The applicants cannot therefore be denied
the relief that they seek. I believe it is therefore not necessary for me to determine
whether or not Mr Majuru’s supporting affidavit is properly before the court.               The
affidavit does not take the matter any further.
       Turning to the second issue for determination, it appears to me that conduct of the
applicants’ legal practitioners described above indicate that the application for rescission
is bona fide and has not been made with the intention of merely delaying bringing the
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matter to finality. The legal practitioners took all steps possible in my view to ensure that
the matter be prosecuted. They contacted the respondents’ legal practitioner to have the
matter stood down to the afternoon. Mrs Matanda-Moyo attended court in the afternoon
at the time she believed the matter was to continue. Further, the fact that the applicants
had prosecuted the matter to the extent that evidence had already been led showed a
willingness on their part to prosecute the action to its final conclusion. The application
for rescission cannot therefore be said to have been filed to delay the finalisation of the
matter.
          Regarding the bona fides of the application for rescission, the respondent had
alluded to evidence that had been led before the action was dismissed as indicating that
there was indeed an offer and an acceptance. It had been my view at the time when the
parties concluded their submissions on this application that it was necessary that I be
availed the record of proceedings to enable me to determine the bona fide of the
applicants’ action. The record has not been forthcoming. I am, however now of the view
that, given the fact that the matter had not been completed, the availability of the record
would not assist the court in determining the bona fides of the applicants’ claim. In V
Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd, supra at 387E-F, CHINHENGO J after
examining the cases on what constitutes good and sufficient cause observed as follows:


          “Each element of the test of good and sufficient cause may be decisive on its own in any
          particular case but this does not mean that it becomes the only element or that the court
          has lost regard of the other elements of establishing good and sufficient cause”

          I am satisfied with the explanation that the applicants have proffered for the delay
and that the application for rescission is bona fide. It is my view that the applicants’ have
established good and sufficient cause why the application for rescission should be granted
It is therefore not necessary, in my view, for me to determine the bona fide of the
applicant’s claim.


          In the result, it is ordered that:
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       1. The default judgment entered against the applicant on 6 February 2002 be and
           is hereby rescinded.
       2. The respondents shall pay costs of the application.




Civil Division, applicants’ legal practitioners
Puwayi Chiutsi, 2nd respondent’s legal practitioners