Trustees FOR THE TIME Being OF Tongogara Community Share Ownership Trust V Matrix Realty (Private) Limited

### Preamble
1
HH 164-18
HC 6900/17
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TRUSTEES FOR THE TIME BEING OF TONGOGARA

COMMUNITY SHARE OWNERSHIP TRUST

versus

MATRIX REALTY (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 12 February 2018 & 21 March 2018

Opposed Application

E. T Moyo, for the applicant

T Mpofu, for the respondent

MUREMBA J: This is an application for rescission of a default judgment where the applicant prays for relief in the following terms:

“It is ordered that

1. The application be and is hereby granted.

2. The apparent delay in bringing an application for rescission of judgment in terms 	      of the rules shall be condoned.

3.  Default judgment granted by this court on 24 May 2017 in Case No. HC 1863/17 	       be and is hereby rescinded.

4.  The respondent and its legal practitioners de bonis propris shall jointly and 		     severally the one paying the other to be absolved pay the costs of this application 	     on a legal practitioner and client scale.”

The background to this matter can be aptly summarized as follows. The applicant and a company called Kelor Investments (Pvt) Ltd entered into an agreement of sale of immovable property. The contract was brokered by the respondent and the contract stated that the respondent would be entitled to agent’s commission at the rate of 5% of $950 000.00 plus 15% VAT, the said $950 000.00 being the purchase price at which the immovable property in question was sold. The parties to the contract agreed that the respondent was entitled to agent’s commission from the seller and further that in the event of breach of the contract, the party in breach would be liable for payment of the said commission to respondent. It happened that the applicant being the buyer, after signing the contract, did not pay the purchase price by the agreed timeline, only to write a letter to the seller’s lawyers saying it was cancelling the contract. The respondent sued for its commission from the applicant in the sum of US$54 625.00 on the basis that it was the applicant which had breached the agreement of sale. The respondent obtained a default judgment after the applicant failed to file opposing papers within the prescribed time. It is this default judgment granted by this Court on 24 May 2017 in Case No.  HC 1863/17 which is now subject of this application for rescission.

At the hearing, the respondent having abandoned the point raised in limine, that the application was improperly before the court having been filed out of time, the matter was then argued on merits. The basis for the application for rescission of judgment as averred in the applicant’s founding affidavit was that judgment was fraudulently sought by the respondent before the expiration of the dies inducia and was erroneously granted by this court. The applicant also averred has a bona fide defence to the respondent’s claim. In opposition, the respondent denied all that the applicant averred and proved that it had not obtained the default judgment fraudulently. It further averred that the applicant had no bona fide defence to its claim. In the answering affidavit the applicant departed from the allegations of fraud by the respondent and pleaded mistake on its part in failing to file its notice of opposition on time. Clearly, there was a conflict between the averments in the founding affidavit and the averments in the answering affidavit. Despite this apparent conflict the applicant went ahead with the matter as it was, filed heads of argument and had the matter set down for hearing.

During the hearing I asked Mr Moyo to explain and reconcile the apparent conflict in the applicant’s founding affidavit and the answering affidavit. Mr Moyo having realized the rough terrain of the applicant’s case moved for the withdrawal of the application and tendered costs to the respondent. Despite the intention to withdraw the application, Mr Mpofu for the respondent moved an application for dismissal of the applicant’s application with costs on a higher scale arguing that the matter had already been argued and as such there was need to bring finality to litigation in the matter. The application for dismissal of the application was opposed by the applicant. It is this oral application for dismissal which is now the subject matter of this judgment.

The question is under what circumstances should a court exercise its discretion in favour of a dismissal of a matter in the face of an intended withdrawal? It is unfortunate that the rules of this court do not deal with the issue of withdrawal of matters. In support of his application for dismissal, Mr Mpofu drew the attention of the court to a number of South African cases and one Zimbabwean constitutional case of Everjoy Meda v Maxiwell Matsvimbo Sibanda & 2 Others, CCZ 10/2016 which apparently makes reference to a number of South African authorities. In that case the applicant approached the Constitutional Court alleging infringement of her right to property. The matter was set down for hearing. At the hearing the first respondent’s counsel who happened to be the same Mr Mpofu who is representing the respondent in the current matter took several points in limine.  When it was the applicant’s counsel, Mr Uriri’s turn to respond he indicated that he had instructions to withdraw the matter. MALABA DCJ (as he then was) at p 4 of the cyclostyled judgment, had this to say,

“Mr Uriri for the applicant indicated that he had instructions to withdraw the matter and sought to apply that the matter be withdrawn.  Mr Mpofu opposed this application arguing that the matter should not be withdrawn, but that the Court exercises its discretion and dismiss the matter with costs on a higher scale.

While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing.  Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in Erasmus “Superior Court Practice” B1-304.  A person who has instituted proceedings is entitled to withdraw such proceedings without the other party’s concurrence and without leave of the court at any time before the matter is set down.  The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other.  An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court.  In the absence of such consent or leave, a purported notice of withdrawal will be invalid.  The court has a discretion whether or not to grant such leave upon application.  The question of injustice to the other parties is germane to the exercise of the court’s discretion.  It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.”

See -    Abramacos v Abramacos 1953(4) SA 474(SR);

Pearson & Hutton NNO v Hitseroth 1967(3) 591(E) at 593D, 594H

Protea Assurance Co Ltd v Gamlase 1971(1)SA 460(E) at 465G

Huggins v Ryan NO 1978(1) SA 216(R) at 218D

Franco Vignazia Enterprises (Pty) Ltd v Berry 1983(2) SA 290(C) at 295H

Levy v Levy 1991(3) SA 614(A) at 620B

Herbstein & Van Winsen “The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa” (5 ed) p 750

From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.”

This case summarises what the other authorities say on the same issue. The case is self –explanatory. In casu the matter was set down for hearing and it was during the hearing and in the course of making submissions that the applicant’s counsel sought to withdraw the matter. Clearly, under the circumstances the applicant needed the consent of the respondent to withdraw or the leave of the court in the absence of the consent of the respondent. In granting the leave the court exercises its discretion. The court can either grant or refuse the application. Where justice requires that finality in litigation be reached if possible and where the withdrawal amounts to an abuse of process, the court may decline leave to withdraw.

In casu I am not inclined to grant the leave to withdraw because it is clear that the applicant now wants to withdraw its application because of the glaring conflict that is between its founding affidavit and answering affidavit, which conflict it has always been aware of. The applicant became aware that the allegation of fraud it had made in its founding affidavit was false at the time the respondent filed its notice of opposition and when the same parties were involved in separate legal proceedings for stay of execution pending the hearing of the present application for rescission. The applicant could have withdrawn its application at that stage but it did not. Instead it went ahead and filed its answering affidavit now tendering a new and contrary explanation of mistake on its part. It went ahead and had heads of argument prepared. In the heads of argument its counsel even discussed the conflict, but despite that the applicant went ahead and had the matter set down for hearing. It did not see the need to withdraw. In opposing the withdrawal, Mr Mpofu submitted that the applicant was alerted to the falsity of the explanation in its founding affidavit in good time but it did not take heed. He further submitted that even in the morning of the hearing date before the hearing had commenced he asked for a withdrawal of the matter without consequences, but Mr Moyo was not forthcoming. It was only upon the realisation that the court was taking issue with the contradiction in its papers during the hearing that the applicant sought to withdraw.

Allowing a withdrawal under such circumstances will set a bad precedent as parties will move to withdraw cases in the middle of arguments each time they realise that a matter is not going their way. The disadvantage of withdrawals is that they do not bring finality to matters. After the matter has been withdrawn the applicant can rectify the perceived errors and re-lodge the same application thereby inundating the courts with too many cases. Clearly, this will be an abuse of court process. In light of the foregoing, I will not grant the applicant leave to withdraw the application for rescission of the default judgment.

In opposing the application to withdraw, Mr Mpofu for the respondent moved an application for dismissal of the applicant’s application arguing that the matter had already been argued. The case authorities including the case of Everjoy Meda v Maxiwell Matsvimbo Sibanda & 2 Others, supra, do not say that if the court declines the applicant the leave to withdraw its application then it (the court) should automatically dismiss the application. I believe that after the refusal to withdraw, the matter should be allowed to proceed to be heard fully to enable the court to give judgment in the usual manner. In the case of A v B and C 1976 (4) SA 31 at p 33, GOLDIN J, had this to say,

“An order dismissing applicant’s application can therefore only be granted by consent 	(which is not the case in the present case) or upon the court giving judgment in the 	usual manner. (The underlining is mine).Where the Court is to give judgment in the 	usual manner implies that the court has to consider the merits of the case. The 	belated withdrawal cannot deprive the court of its discretion to proceed with the 	hearing of the matter.”

In Everjoy Meda v Maxiwell Matsvimbo Sibanda & 2 Others supra it was held,

“It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one. (My underlining)

These authorities show that if a withdrawal is declined, the court will continue to hear the matter and then make a determination on the merits. An applicant who brings an application for rescission of a default judgment under Order 9 r 63 (2) has the onus to show “good and sufficient cause” for the court to exercise its powers in his favour. The factors which are normally considered by the court in deciding whether there is “good and sufficient cause” are;

The reasonableness of the applicant’s explanation for the default;

The bona fides of the application to rescind the judgment; and

The bona fides of the defence on the merits of the case and whether the defence carries some prospect of success.

In casu when Mr Moyo indicated that he was seeking to withdraw the matter he had not yet finished arguing the matter. He was still arguing on the reasonableness of the applicant’s explanation for the default. On the other hand Mr Mpofu had not yet had the opportunity to argue for the respondent in response. I will thus order that the parties fully argue the matter for a determination on the merits.

Consequently, it is ordered that:

The application for withdrawal of the application for rescission of the default judgment be and is hereby dismissed.

The hearing of the application for rescission of the default judgment shall proceed.

Costs shall be in the cause.

Messrs Scanlen & Holderness, applicant’s legal practitioners

Messrs Ushewokunze Law Chambers, respondent’s legal practitioners