DISTRIBUTABLE (82)

Judgment No S.C. 99\2002

Civil Appeal No 381\95

W MATAMBANADZO v ZVIDZAI JAMESON ZVAVAMWE

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & MALABA JA

HARARE SEPTEMBER 16 & NOVEMBER 11, 2002

H. Zhou, for the appellant

M.C. Mukome, for the respondent

MALABA JA: This appeal is from a judgment of the Magistrates Court dated 6 June 1995 by which an application by the appellant for the rescission of a default judgment given on 8 March 1995 was dismissed with costs.

The facts of the case are as follows. The default judgment was given in an action commenced by the respondent, to whom I shall refer as “the plaintiff”, on 10 June 1992 claiming an order of eviction of the appellant from Stand No 2786-7 Zengeza Township (“the property”) situate in the District of Chitungwiza.

The appellant, to whom I shall refer as “the defendant”, had taken occupation of the property in terms of an agreement of sale entered into by the parties on 15 May 1987. The plaintiff had, in terms of the contract, sold the property to the defendant for $8 000 payable by means of a deposit of $5 500 upon the signing of the agreement and the balance of $2 500 in two instalments of $1 250 on 1 June 1997 and 1 July 1987.

Clause 4 of the agreement of sale provided that:-

“Should the purchaser fail to make payment of any instalment on due date thereof, or should he commit a breach of any of the terms and conditions of this sale, then and in such case the seller shall be entitled to give to the purchaser notice in writing requiring him to make such payment or remedy such breach within 14 (fourteen) days of posting the notice and if the purchaser fails to do so, the seller shall have the right forthwith:-

1. to cancel the sale and to retake possession of the property hereby sold …”

A letter was written by the plaintiff to the defendant On 5 November 1991 drawing his attention to the fact that he had failed to pay the full purchase price by 1 July 1987. He was given notice to rectify the breach within fourteen days. Another letter written on 12 December 1991 cancelled the sale on the ground that the defendant had failed to comply with the notice of 5 November.

The fact that the two letters were written by the plaintiff in terms of clause 4 of the agreement of sale was common cause. The letters explain the conduct of the plaintiff in issuing summons out of the magistrate's court on 10 June 1992, claiming an order of eviction of the defendant from the property.

The defendant entered appearance to defend. His plea amounted to a denial that he was in breach of contract. He alleged that he had paid the sum of $2 500 to A.R. Chizikani and Partners who were the plaintiff’s legal practitioners at the time the parties entered into the agreement of sale. He did not produce receipts as proof of payment. No date was given when the payment was made. There was no evidence at all that the money was paid on or before 1 July 1987.

The defendant alleged that the plaintiff had refused to accept the money he had tendered as payment of the purchase price. He again did not say when he made the tender. The plaintiff, however, said he refused to accept the money because payment was tendered long after the sale had been cancelled.

Pleadings in the case closed. On 21 October 1994 the defendant’s legal practitioners were served with a notice of set down of the case for trial on 8 March 1995. The legal practitioners renounced agency on 8 February but gave as defendant’s last known address, No 17 Pringle Road Greendale, Harare. On 28 February 1995 the defendant was served at the address in question with a notice, by the plaintiff, to amend the summons and plea to the counter-claim at the trial. The notice which was served on the defendant by the messenger of court, gave the trial date as 8 March 1995.

On the trial date the defendant was in default. An order for his eviction from the property was granted with costs. On 10 March the plaintiff’s legal practitioners wrote to the defendant at No 17 Pringle Road Greendale advising him of the default judgment granted against him. The defendant said he received the letter on 6 April.

On 4 May 1995 the defendant made the application for the rescission of the default judgment. He averred that he was not in wilful default. The reason he gave was that his erstwhile legal practitioners had not told him of the set down date. The learned magistrate held that the defendant was in wilful default and dismissed the application.

It was argued on appeal by Mr Zhou that the defendant was not in wilful default because his erstwhile legal practitioners did not make him aware of the date when the case was set down for trial. He said the failure by the legal practitioners to bring the set down date to the attention of the defendant could not be visited on him in deciding whether he was in wilful default of appearance at the trial of the case. According to Mr Zhou, the erstwhile legal practitioners were no longer representing the defendant at the time of his default. Mr Zhou also argued that the learned magistrate should have found that the defendant had a bona fide defence to the plaintiff’s claim.

Whilst accepting that the two letters dated 5 November and 12 December 1991 were written by the plaintiff to the defendant in terms of clause 4 of the agreement of sale, Mr Zhou contended that receipt of the letters by the defendant had not been proved. He said it had not been shown that the defendant had not paid the full purchase price for the property in terms of the contract of sale.

The question on appeal is whether or not the learned magistrate misdirected himself in holding that the defendant was in wilful default of appearance at the trial. Both counsel agreed that under Order 30 Rule 2(1) of the Magistrate Court (Civil) Rules 1980, a finding of wilful default against an applicant for rescission of judgment precludes the court from exercising its discretion in favour of ordering rescission.

In Mdokwani v Shoniwa 1992 (1) ZLR 269 (S) at 271 A-G EBRAHIM JA said:-

“Clearly it was incumbent upon the appellant at the hearing before the magistrate to satisfy the court that he was not in wilful default. He had to show that there was an acceptable reason for the late filing of the appearance to defend and that he has a bona fide defence to the respondent’s action.

The meaning of ‘wilful default’ was aptly put by MURRAY CJ in the case of Newman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR) at 173A-D where he stated the principle as follows:

‘The true test, to my mind, is whether the default is a deliberate one – i.e. when a defendant with full knowledge of the set down and of the risks attendant on his default freely takes a decision to refrain from appearing. I can do no better than quote the following passage from the judgment of BOWEN LJ, in the case of In re Young and Harston’s Contract LR 31 Ch Division at pp 174, 195, a passage approved by GARDINER JP in Hendricks v Allen 1928 CPD 519:

‘The other word which it is sought to define is ‘wilful’. That is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning it generally, as used in courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent. Now, if that is all, you can get out of the analysis of these words, it becomes plain that to endeavour to classify every conceivable contingency with a view of defining what will be and what will not be wilful default, would be idle. You cannot define the words ‘wilful default’ more than I have defined them. And I only use the definition for the purpose of showing that the term is a simple one and not technical at all.’”

Mr Zhou’s submission that the defendant was not in wilful default because the information on which he ought to have acted as a free agent in attending the trial was known only to his erstwhile legal practitioners is not supported by the evidence. The facts show that the defendant had knowledge of the set down date from another source other than his erstwhile legal practitioners. He did not deny receipt of the notice to amend the summons and plea to the counter-claim served upon him by the plaintiff on 28 February 1995.

The notice to amend the summons and plea to the counter-claim gave 8 March as the date the case was set down for trial. The defendant was no longer acting through the legal practitioners. He was a free agent. He knew that he was not attending trial when he did not do so. His default was wilful in the sense that he deliberately refrained from attending the hearing of the action. The reason he gave for his default was not acceptable because it was not the direct cause of his default.

The defendant gave as a defence to the plaintiff’s claim for an order of his eviction from the property the allegation that he had paid the full purchase price in terms of the agreement of sale. In other words he was saying he had discharged his obligations. The defendant failed to disclose facts from which the court could satisfy itself that there was a bona fide defence. The onus would have been on the defendant at the trial to prove timeous payment of the full purchase price. No receipts were produced on which proof of payment at the trial could be inferred. The date the payment was alleged to have been made was not given. There was, therefore, no basis on which the court could hold that the defendant would establish timeous payment of the full purchase price at the trial.

On the other hand it was clear from the writing of the two letters by the plaintiff on 5 November and 12 December 1991 respectively that he regarded the defendant to be in breach of the contract of sale. The defendant was aware of the fact that the plaintiff was accusing him of failure to perform his contractual obligations to pay the instalments of $1 250 on 1 June and 1 July 1987. He was expected to annex to the founding affidavit in the application for rescission of the judgment, documents such as receipts of payment to counter the alleged breach of contract. No supporting affidavit was obtained from the person to whom the defendant said he paid the money. What was even more telling against the bona fides of the defence the defendant intended to raise against the plaintiff’s claim was his failure to deny the averment that he tendered the payment of the outstanding balance of the purchase price after cancellation of the agreement of sale. If the defendant had paid the money to the plaintiff’s agent in terms of the contract on 1 July 1987 he would have discharged his contractual obligations. There would have been no need to tender the payment of the same amount to the plaintiff at the time he filed his plea on 7 January 1993. The conclusion reached is that the defendant did not show to the court a quo that there was a bona fide defence to the plaintiff’s action.

The appeal is, accordingly, dismissed with costs.

SANDURA JA: I agree

ZIYAMBI JA: I agree

Musunga & Associates, appellant's legal practitioners

Muvingi & Machaya, respondent's legal practitioners