Judgment No. HB 12/2002
Case No. HC 3230/2001
WILFRED MANEMO 1st Applicant
VIMBAI CHIREMBA MANEMO 2nd Applicant
ALPHONSUS ACHINULO 1st Respondent
STELLA ACHINULO 2nd Respondent
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 1 & 21 FEBRUARY 2002
N. Mathonsi for applicants
Hwalima for respondents
Rescission of Judgment
CHEDA J: This matter was brought to me as an opposed application for
rescission of judgment granted by this court on 15 February 2001 and condonation of
applicants' failure to make such application timeously as per Rule 63(1) of the High
Court (General Division) Rules (1971).
The brief facts of the matter are that applicants and respondents entered into a
lease agreement in or around July 2000 in relation to a certain immovable property in
Kumalo Suburbs, Bulawayo. Disputes arose between the parties which resulted in the
respondents instituting legal proceedings against applicants. A provisional order was
granted by this court on 10 August 2000.
Before the provisional order was either confirmed or discharged the following
events took place. Or about 4 September 2000 respondents vacated the property and
this was confirmed by their legal practitioner in their letter of 14 September 2000 to
applicants' legal practitioners. In response to his letter, applicants' legal practitioner
advised respondents' legal practitioner that:
(a) they had issued summons for the eviction of respondents.
(b) they had therefore not filed a notice of opposition to the provisional order.
This was, because, these legal processes had been overtaken by events namely
that the respondents had vacated the property.
Thereafter, a series of correspondence took place between the two legal
practitioners regarding the issue of costs. In their letter of 4 September 2000
respondents' legal practitioners proposed that applicants pay their clients costs to
which applicants' legal practitioners responded on 2 October 2000 stating that their
clients were denying the claim and that any action taken by them would be contested.
On 15 February 2001 respondents through their legal practitioners had the
provisional order confirmed, a bill of costs was taxed and allowed on 6 July and a writ
issued on 6 August 2001.
Mr Tshuma was acting for applicants at the time when Mr T. Moyo was acting
for respondents swore to an affidavit and stated among other things that he only
became aware of the confirmation of the provisional order on 22 August 2001 when
his clients advised him of the visit by the Deputy Sheriff for attachment of their
property in pursuance of the order obtained on 15 April 2001.
The issues which call for determination are the application for condonation
and the rescission of judgment.
The question is whether applicant's failure to comply with Rule 63(1) of the
High Court (General Division) Rules (1971) should be condoned by this court Rule
"If the court is satisfied on an application in terms of subrule (1) that
there is good and sufficient cause to do so, the court may set aside the judgment concerned and giving leave to defendant to defend or to the plaintiff to prosecute this action, on such terms as to costs and otherwise as the court considers just."
The court has a discretion as to whether or not it should condone
non-compliance with the rules. The principles which have been a guide for our courts
in the satisfactory determination of the above question was clearly laid down and has
been followed in many cases, one is United Plant Hire P/L v Hills and Others 1976(1)
SA 717(a) were HOLMES JA stated at 720 F-G,
"It is well settled that, considering applications for condonation, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both sides. In this inquiry, relevant considerations may include the degree of non-compliance with the rules, the explanation thereof, the prospects of success of appeals, the importance of the case, the respondents' interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. This is not exhaustive".
It is common cause that applicants did not comply with the rules. The
question therefore is that of the degree of non-compliance. There was a delay of one
month and one week. Such delay, is satisfactorily explained by Mr Tshuma who in
his affidavit states that immediately after he had been notified of the attachment, he
went to check with the Registrar's Office and thereafter communicated with
respondents' legal practitioners, Mr Hwalima who had taken over the matter.
I am satisfied that the delay in bringing this application was not inordinate.
There had been negotiations regarding the costs in this matter. The argument
centred on the quantum and applicants had pointed out the error of including fees
relating to a matter at the magistrates' court, which error respondents' legal
practitioners admitted, in not so many words as evidenced by their letter to
applicants' legal practitioners on 17 September 2001 which reads, "We have re-visited
our bill of costs and noted the following errors ..."
The admission therefore in my view enhances applicant's prospects of success
on merits. There was therefore a need for them to defend respondents' claim of costs.
Respondents had full knowledge that their costs were in dispute. The case was of
importance to them because their desire to oppose the provisional order and summons
for eviction which they had instituted, through their erstwhile legal practitioners. This
puts the importance of the case to applicants beyond doubt.
The delay in applying for condonation by one month and one week cannot be
said to have placed such inconvenience to the court to the extent that the court can
shut its door on the face of the applicant who looks upon it for dispensation of justice.
This, to me is the type of delay which is clearly overriden by the quest to balance the
scales of justice. It is a settled principle of our law that the courts should
expeditiously dispose of cases before them with minimum delay, but, at the same time
not to sacrifice justice for expedience purposes.
I am satisfied that the delay in bringing this application was not inordinate, the
explanation given for the said delay, the prospects of such on the merits are bright, the
respondents have an interest in the finality of their judgment, there is no
inconvenience caused to the court and the matter has to be concluded without
unnecessary delay. This application therefore succeeds.
Rescission of Judgment
On the merits, respondents had always been aware that applicants were
opposing their claim, though, their legal practitioners were not keen to address that
point. Without regard of possible errors in their calculation they went ahead to have
the provisional order confirmed. I agree with Mr Tshuma for the applicants that if the
court had been appraised of the full facts of this case it would not have confirmed the
provisional order. It is my view, that respondents' legal practitioners took advantage
of the fact that applicants had vacated the property and went ahead to confirm the
provisional order in relation to costs. They should not have done so without notifying
the applicant as they were aware that their costs were being queried, to do so, in my
view is indeed to snatch a judgment behind a colleague.
I should add that the legal profession is regarded as an honourable profession
and one of its requirements is fairness in the day to day dealings with colleagues.
Accordingly, etiquette of the practice requires that colleagues be treated with due
consideration without of course sacrificing one's client's interest. There is always the
temptation of a desire to benefit or impress one's client by inconveniencing the legal
practitioner on the other side. It is the duty of every legal practitioner to overcome
In this particular case, I find that, the temptation was too high to overcome by
respondents' legal practitioners. This conduct can certainly not be condoned by this
I accordingly make the following order:
1. that the application for condonation of late filing of application for rescission succeeds.
2. that the application for rescission succeeds.
3. that the question for costs be referred for taxation by the Assistant
4. Respondents pay costs for this application at a higher scale.
Web, Low & Barry, applicants' legal practitioners
Messrs Hwalima & Associates, respondents' legal practitioners