Constance Dlamini & Flora Todlana Nyoni v Simela Dube & Nobuhle Dube & Job Sibanda

### Preamble
Judgment No. SC 122/22
1
Civil Appeal No. SCB 84/20
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DISTRIBUTABLE	(108)

CONSTANCE     DLAMINI     (2)     FLORA     TODLANA     NYONI

v

SIMELA      DUBE     (2)     NOBUHLE     DUBE     (3)     JOB     SIBANDA

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & CHITAKUNYE JA

BULAWAYO: MARCH 22, 2021

L. Nkomo with J. Tshuma, for the appellants

T. Masiye-Moyo, for the first and second respondents

No appearance for the third respondent

GUVAVA JA:

[1]	This is an appeal against the decision of the High Court (the ‘court a quo’) dated 20 August 2020. The court a quo dismissed the first appellant’s application for rescission of a judgment which had been granted in default. After hearing submissions from counsel the appeal was allowed with costs. The reasons for this decision are outlined hereunder.

FACTS

[2]	The first appellant is the owner of a piece of land known as Ntabazinduna Cottage Reserve in the District of Bubi Lot 6A Riverside Estates Agricultural Lots and held under Deed of Transfer No. 2779/92 measuring 9 704 square meters in extent (the property).  She is an 85 year old retired nurse based in London. She granted a special Power of Attorney jointly to the second appellant (Nyoni) and a legal practitioner one Mr Jacobus Petrus Oberholzer (Oberholzer) to be her “agents” and to “manage and transact her affairs in relation to the subdivision, sale as well as the transfer of lots in her property. Nyoni is the first appellant’s niece and also resides in the United Kingdom. Although cited as second appellant, she should not have been cited at all as an amendment was sought in the court a quo for her removal as a party as there was a misjoinder. The court a quo however did not determine the matter and thus Nyoni remains so cited.

[3]	The first appellant gave Oberholzer Special Power of Attorney to subdivide and sell portions of the property except for Lot 9. This was a piece of land measuring 3 965 square meters which she intended to keep for her personal use. She had already acquired development plans for it and had commenced construction of her home thereon.  She further alleged that all sales of the property in question were to be conducted in consultation with her and Nyoni.

[4]	Following the granting of the Special Power of Attorney, Oberholzer entered into a written agreement for the sale of Lots 3 and 4 with the first and second respondents. The purchase price for the two lots was US$30 000.  After the purchase price of Lots 3 and 4 was paid, it was discovered that the Lots were inaccessible. Due to the layout of the property it was not possible for the first appellant to construct a road which could connect directly to the said Lots as required by the City Council. At the time of the sale, Council had not yet issued a Compliance Certificate in respect to the proposed subdivision.  The agreement of sale for Lots 3 and 4 was therefore cancelled.

[5]	After the cancellation, Oberholzer offered the first and second respondents Lot 9 which was situated directly opposite Lot 3 and 4. A new verbal agreement was concluded between the first and second respondents and Oberholzer for the sale of Lot 9. The first and second respondents thereafter took occupation and continued construction on the foundation of the house structure which had already been started by the first appellant. The first and second respondents continued to construct the property up to window level.

[6]	Unfortunately, soon thereafter Oberholzer suffered a severe stroke which rendered him so incapacitated that he was unable to speak or write. As a result, his practice was placed under the temporary management of Mr Longhurst of Messrs Longhurst Boyce & Co pending the appointment of a curator bonis by the Law Society of Zimbabwe. While the temporary change in management was in effect, Nyoni visited Zimbabwe from the United Kingdom and visited the property in question. She found that the first and second respondents were building on Lot 9 which the first appellant had reserved for herself.  In an effort to resolve the dispute, Mr Longhurst suggested that the first appellant and the first and second respondents enter into a written agreement of the swop of the Lots. However, the first appellant declined the suggestion and maintained that Lot 9 was not for sale. Oberholzer’s law firm was subsequently placed under the curatorship of Job Sibanda of Messrs Job Sibanda and Associates.

[7]	On 22 February 2019, before Job Sibanda assumed curatorship, and under case number HC 374/19 the first and second respondents issued summons against the first appellant demanding transfer of Lot 9 into their names. Service was effected at the office of Oberholzer. The first appellant was in default.  On 28 of February 2019 the court granted default judgment under case number HC 374/19.

PROCEEDINGS BEFORE THE COURT A QUO

[8]	On 24 April 2019, the first appellant made an application for rescission of the default judgment in terms of Order 9 Rule 63 of the High Court Rules, 1971. In making the application the first appellant averred that she was not in wilful default as she was never served with the summons and declaration. She averred that the summons had been served on the physical address of Oberholzer’s law firm and because Oberholzer was incapacitated at the time, he failed to respond to the summons. The first appellant further averred that she had a good bona fide defence to the respondent’s claim as Oberholzer acted without her authorization in swopping Lots 3 and 4 for Lot 9. She further averred that Oberholzer was always aware of her intention to build her house on Lot 9 and as such the alleged swop agreement was invalid. She further stated that the application was bona fide.

[9]	The first and second respondents opposed the application.  They argued that the first appellant was attempting to mislead the court by availing a special power of attorney that related to a property in Ntabazinduna Cottage Reserve when in fact they had acquired their property located in Riverside Estate Agricultural Lots subdivision A of Wilsgrove and there was a specific power of attorney which related to Lot 9.  They further contended that the first appellant had been represented by Oberholzer who was armed with the authority to subdivide, sell and transfer the said properties.  As such, they prayed that the court accept the evidence that was before it and not the mere mention by the appellant that she had conveyed separate instructions to her legal practitioner.

[10]	The court a quo, in dealing with the application found that service of the summons and declaration on the first appellant had been hindered by Oberholzer’s incapacitation   and thus her reason for default was reasonable. With regards to the prospects of success, the court found that the appellant had granted not only ostensible authority but “express authority” to Oberholzer to subdivide, sell and transfer the property.  The court concluded that the first appellant had failed to proffer a defense to the first and second respondent’s claim. As a result the court dismissed the application.

[11]	Aggrieved by the decision of the court a quo, the appellants noted an appeal on the following grounds of appeal:

The court a quo erred and misdirected itself on the law, thereby vitiating its judgment, by considering the factors which constitute good and sufficient cause for rescission of judgment individually or in isolation, rather than cumulatively.

The court a quo erred in law by denying the appellants the right to be heard at all on the merits of the dispute under HC 374/19 despite having found that there had been no proper service of the summons and that a reasonable explanation for the default was proffered by the appellants.

The court a quo grossly misdirected itself on the facts thereby vitiating its judgment in finding that the appellants had proffered no defence at all to the 1st and 2nd respondents claim in the main action, when such finding is not borne out by the papers before the court a quo and no reasonable court properly applying its mind to the same pleadings could have arrived at the same conclusion.

ISSUE FOR DETERMINATION

[12]	One issue arises from the grounds of appeal and submissions made by counsel before this Court. The issue for determination is as follows: Whether or not the court a quo erred in dismissing the first appellant’s application for rescission of judgment.

SUBMISSIONS BEFORE THIS COURT

[13]	Counsel for the first appellant, Mr. Nkomo, submitted that the appeal could be resolved on the first ground.  He argued that the court a quo erred by determining the requirements for an application for rescission individually instead of cumulatively. He further submitted that the court failed to consider some of the elements that must be determined in an application of this nature. Counsel argued that the court had to determine firstly, whether the first appellant was in wilful default. Secondly, whether the application was bona fide and not made with the intention of merely delaying the first and second respondents’ claim and lastly whether on the merits, the first appellant had a bona fide defence which carried prospects of success. Counsel submitted that the court a quo erred as it proceeded on the basis of a two pronged approach of assessing the reasonableness of the default and the prospects of success instead of assessing all the requirements cumulatively. Counsel thus maintained that if the court had given regard to the bona fides of the case and assessed all the requirements cumulatively it would have arrived at a different conclusion.

[14] Counsel for the first appellant, relying on s 63 of the Constitution, submitted that the court a quo erred in denying the appellant the right to be heard. It was counsel’s argument that the appellant had a valid defence to the claim as Oberholzer abused the power which he had been given through the special power of attorney, by selling Lot 9 to the first and second respondents which she had already started to develop for her own use. Counsel thus prayed that the appeal be allowed and that the matter be remitted to the court a quo for a hearing de novo so that the requirements of the application are heard cumulatively.

[15]	Per contra, counsel for the first and second respondents’ Mr. Masiye-Moyo ,submitted that the court a quo enjoys a wide discretion in granting or refusing an application for rescission. Counsel argued that the court dealt with all the requirements for the application for rescission and correctly found that the application lacked merit. Counsel also argued that the first appellant did not have a bona fide defence to the first and second respondents’ claim as the Power of Attorney filed of record gave Oberholzer authority to subdivide, sell and transfer all the properties including Lot 9. Counsel thus argued that the court a quo did not err in arriving at the conclusion that the first appellant did not have prospects of success. Counsel however agreed with counsel for the first appellant that if the court a quo acted on the wrong legal principle in arriving at its decision then the proper remedy would be for the matter to be remitted to the court a quo for a hearing de novo.

APPLICATION OF THE LAW TO THE FACTS

[16]	The appellant made the application for rescission of the default judgment in terms of r 63 of the High Court Rules, 1971 (the rules applicable at the relevant time).  Rule 63 provides that:

“63. Court may set aside judgment given in default

(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 sub rule (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 his action, on such terms as to costs and otherwise as the court considers just.” (Emphasis added)

[17] The requirements for an application for rescission in terms of the above rule are now settled. In Zinondo v CAFCA Limited SC 64/17 on page 4, the Court stated that the requirements that must be met for an application for rescission to succeed are as follows:

“In an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order. In Makoni v CBZ Bank Limited HH-357-16, CHITAKUNYE J quoted the case of Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173D-F wherein GUBBAY CJ aptly noted 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) ZLR 210(S) at 211C-F. They are: (i) the reasonableness of the applicant’s explanation for the default ;(ii) the bona fides of the application to rescind the judgement; and (iii) 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.” (see also Makoni v CBZ SC 47/20)

MILLER JA in Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764I-765C explained the concept of “good and sufficient cause” as follows:

“The term ‘sufficient cause’ (or ‘good cause’) defies precise or comprehensive definition, for many and various factors require to be considered. See Cairn’s Executors v Gaarn 1912 AD 181 at 186 per INNES JA. But it is clear that in principle and in the long-standing practice of our courts two essential elements of ‘sufficient cause’ for rescission of a judgment by default are:

(i) 	that the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii) 	that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success. See de Wet’s case supra at 1042; P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith NO v Brummer NO & Anor; Smith NO v Brummer 1954 (3) SA 352 (O) at 357-8.” (see also V. Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (HC))”

[18]	Rule 63 of the High Court Rules, provides a door through which litigants, who have been denied access to be heard, in instances where another party would have obtained a judgment in their absence, may seek the court’s indulgence to be heard. There are many scenarios and circumstances in which a party can obtain default judgment and in each case a court which grants default judgment exercises discretion in doing so. An aggrieved party who has a default judgment operating against him is thus given a remedy through r 63 to have that judgment set aside. The legislature has, however, put in place a safeguard measures which enable only the most deserving cases get a reprieve.  The grant of rescission of judgment is not for the mere asking but must be on the basis of “good and sufficient cause”. The assessment of ‘good and sufficient cause’ is not a magical process but rather, as stated in the authorities above, it is a cumulative assessment of requirements to be met by an applicant in an application for rescission. The above referred authorities clearly show the requirements to be satisfied in an application for rescission. These are;

A reasonable explanation for the default.

That the application for rescission is bona fide and not made with the intention of delaying the plaintiff’s claim, and

That there is a bona fide defence on the merits of the plaintiff’s claim which carries prospects of success at trial.

These requirements must be assessed cumulatively. The granting of or refusal to grant  an application for rescission must therefore be done after a court exercises its mind on these elements. The need to ensure that applications for rescission are comprehensibly assessed stems from the need to ensure that litigants are given a right to be heard before an order, which has the effect of finally determining their rights, is rendered against them. In determining these factors together one or two factors may have the effect of tilting the case in favour of the applicant seeking rescission.

[19]	Section 63 of the Constitution of Zimbabwe, 2013 crystalizes the right to be heard and places a duty upon courts to ensure that a party is heard in the interest of justice. In Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at p 213A-E MCNALLY JA had this to say with regards to the above point:

“One is naturally reluctant to reach a decision which would result in the giving of judgment against a person without him being heard, when he protests that he has a valid defence…. Before I go further, I think it is necessary to say something about the kind of allegations one may expect from an applicant for rescission of judgment. The effect of the cases is summed up at p 371 of the third edition of Herbstein and van Winsen, The Civil Practice of the Superior Courts in SA as follows:

‘The applicant must show that he has a bona fide defence to the plaintiff’s claim, it being sufficient if he sets out averments which, if established at the trial, would entitle him to the relief asked for; he need not deal with the merits of the case or produce evidence that the probabilities are actually in his favour.’

It is dangerous to generalise, and each case differs from others, but nonetheless I think it must be said that bald general allegations of fact may not be enough in every case to show bona fides.”

[20]	In casu, the court a quo in dealing with the application for rescission made by the appellant adopted a “two rung approach”. The court found that the service of the summons on Oberholzer’s premises when he had been declared incapable of handling his affairs in terms of a provisional order under HC 2891/17 amounted to improper service. The court found that the summons had not been handed to Oberholzer or anyone but rather had been affixed to a green letter box after a diligent search. The court concluded that Oberholzer had not received the summons and declaration and as such the appellant had not been in wilful default as she did not know about the issuance and service of the summons and declaration.

[21]	Having made the above finding, which the court a quo dubbed the first rung, it went on to analyse the second rung which it labelled “Bona Fide Defence, Prospects of Success on the Merits And “Good and Sufficient” Cause For the Relief Sought”. Under this second rung the court properly outlined the requirements for establishing good and sufficient cause at page 3 of its judgment but then did not deal with all the requirements. The court proceeded to deal with prospects of success and made a finding that first appellant had given Oberholzer authority to dispose of all the lots in the property. It also found that the appellant was not being candid with the court when she denied having given Oberholzer authority to dispose of Lot 9. The court believed that the first appellant failed to satisfy the second hurdle and therefore did not show good cause for the relief she sought as she did not proffer a defence to the first and second respondents’ claim.

[22]	The court a quo erred in the approach it took in making the above findings and conclusion. The court failed to deal with the requirements for such applications cumulatively as is required by the above authorities. It also failed to consider the bona fides of the first appellant in making the application.  Had the court a quo correctly applied the principles it had set out in its judgment it may have come to a different conclusion.

DISPOSITION

[23]	The court a quo ought to have been guided by the case authorities that set out how the requirements must be assessed. It ought to have considered the reasonableness of the default, coupled with the bona fides in making the application and lastly whether a bona fide defence to the claim existed. The court thus erred and misdirected itself as it did not assess the application in this manner. The decision of the court a quo was thus flawed in this regard and warrants interference. Having determined the matter on the first ground of appeal, it is in the court’s view unnecessary to deal with the other grounds.

[24]	It was for these reasons that the following order was issued:

The appeal hereby succeeds with costs.

The judgment of the court a quo is hereby set aside.

The matter is hereby remitted to the court a quo for a hearing de novo, on the same papers, before a different judge.

UCHENA JA:			I agree

CHITAKUNYE JA:		I agree

Webb, Low & Barry, appellants’ legal practitioners

Messrs Masiye-Moyo & Associates, 1st and 2nd respondents’ legal practitioners