1

HH 72-16

HC 5577/14

GODKNOWS JONAS

versus

RHONA SHAWLYN MABWE

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 17 November 2015 & 22 January 2016

Opposed Application

PC Paul, for the applicant

TM Kanengoni, for the respondent

CHIGUMBA J:  In what circumstances may a plea and defence which will have been struck off for non attendance at a Pre-trial Conference be reinstated? The issue that falls for determination in this matter is whether the correct procedure to use is to apply for rescission of default judgment or whether a court application for reinstatement of the plea is the proper course of action. The effect of rescinding the default judgment is naturally the reinstatement of the plea and the defence. The court must then determine whether the principles to be applied in the determination of these two procedures are substantially or materially different. Put differently, where the Judge presiding over a Pre-Trial Conference had struck out the defence for failure to comply with a notice issued in terms of Order 26 r 82 (4) of the rules of this court, what is the proper course of action to take in order to get  the defence reinstated? This is an application for an order that the striking out of the defendant’s case in case number HC 304/14 be set aside and that a fresh pre-trial conference hearing be reconvened. Applicant seeks an order that the costs of this application be borne by Mr PC Paul, his own legal practitioner of record.

            The founding affidavit is deposed to by the applicant who states that he has been informed that a Pre-Trial conference hearing in case HC 304/14 had been set down, and that his defence was struck out due to non appearance by his legal practitioner. He applies for the reinstatement of his plea and of his defence to the action, which he avers to be bona fide. The applicant’s legal practitioner of record at the time, Mr PC Paul deposed to a supporting affidavit, in which he refers to his letter dated 9 June 2014. That letter is addressed to the respondent’s legal practitioners of record and it contains an apology at the writer’s inadvertent failure to attend the Pre-Trial Conference slated for 5 June. The writer explained that he has misread his diary and believed that he had to attend at 930am when the set down time was 9am. The letter explains further, that the applicant was resident in the United Kingdom and had instructed his legal practitioners to seek the indulgence of the Judge that he be excused from personally attending the Pre-Trial conference.

           The respondent filed a notice of opposition on 21 July 2014, in her capacity as the Executrix dative of the estate of the late Rodney Tachivei Mabwe. She raised various points in limine, the first of which is that she has not been and ought to have been cited in her capacity as the Executrix dative of the Estate of the late Rodney Tachivei Mabwe. The second point raised is that the applicant does not indicate the procedural basis on which his application is founded, the contention being that the proper course of action would be to seek an order for rescission of default judgment, as opposed to reinstatement of plea and defence.  The last point is an objection to the incorporation of Mr Paul’s letter to the founding affidavit. With regards to the merits, respondent contended that in terms of r 182 (11) of the rules of this court, the default which the court takes into consideration is that of the litigating party, not that of his legal practitioner. Therefore Mr Paul’s dilatoriness in attending late at the Pre-Trial Conference was irrelevant to the question of default, as it was not his attendance at the Pre-Trial Conference which was mandatory in terms of the rules, but that of the applicant.

              Respondent contends further, that the applicant himself, in his founding affidavit does not give a reasonable application for his failure to attend the Pre-Trial Conference in person, except to incorporate the contents of the letter in which his legal practitioner explains his failure to attend at the stipulated time. Aspersions were cast by the respondent, on Mr Paul’s sworn statement that he was in attendance at 920am. Respondent contends that at that time they themselves had not even seen the Judge who later apologized for having been in conference with another Judge at 9am when the Pre-Trial Conference ought to have started.  Finally, respondent disputes that the applicant has a good defence on the merits of the main matter, bringing into issue whether applicant properly acquired rights in the immovable property in question, from an alleged heir who could only have legitimately disposed of a half, not a full share of that property.

          On 22 August 2014, Mr Paul deposed to an answering affidavit in respect of paras 4 to 8 of the opposing affidavit which he averred contained matters which were within his personal knowledge. The first matter was that of his intention to make an oral application for the Judge to excuse his client from attending the Pre-Trial Conference because of the challenge of his geographical proximity, or the lack thereof. He insisted that he arrived in the Judge’s ante room at 920am and spoke to a clerk whom he later realized was not the attending Judge’s clerk but who shared the ante room with him. The applicant admitted in the heads of argument filed of record on 26 September 2014 that the respondent ought to have been cited in her representative capacity. Based on that admission it be and is hereby ordered that the citation of the respondent be amended in all the pleadings in this matter to show that she is cited in her capacity as the Executrix dative of the estate of the late Rodney Tachivei Mabwe. It is incompetent to cite the respondent in her personal capacity when she is clearly representing the estate of a deceased person. See s 25 of the Administration of Estates act [Chapter 6:01], Nyandoro & Anor v Nyandoro & Ors[1], J.D Agro Consultants & Marketing Private Limited v Editor, The Herald & Anor.[2]

           A Pre-Trial Conference is provided for by Order 26 of the rules of this court. Rule 182(11) reads as follows;-

“(11)    A judge may dismiss a party’s claim or strike out his defence or make such other order as may be appropriate if—

(a)        the party fails to comply with directions given by a judge in terms of subrule (4), (6), (8) or (10) or with a notice given in terms of subrule (4); and

(b)        any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order.”

My reading of Order 26 r 182 (11) is that the Pre-Trial Conference Judge has a discretion to dismiss a party’s claim or strike out his defence, or make some other appropriate order where the party fails to comply with any direction given by the Judge as prescribed in r 182, or where the party fails to comply with a notice issued in terms of r 182. In the circumstances of this case, there was no direction issued in terms of r 182. The failure by the applicant to attend the Pre- Trial Conference at the set down date and time constituted a failure to comply with a notice given in terms of Order 26 r 182 (4).  ‘Default’ in the legal context has been described as a failure to do something required by law, usually failure to comply with mandatory rules of procedure. See Oxford Dictionary of Law[3].  If we apply that definition to the circumstances of this case, the failure by the applicant to comply with a notice given in terms of Order 26 r182 (4), being a failure to comply with that mandatory rule, constitutes a default. The setting aside of a judgment given in default is very clearly provided for in terms of the rules of this court, by Order 9, r 63 which provides that a court may set aside a judgment given in default, on application being made within one month of knowledge of the judgment and where there is good and sufficient cause to do so.

            The rules of this court also provide for correction, variation or setting aside of judgments in terms of Order 49 r 449, and in terms of the common law. In  the case of Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd[4] HH 4/07 @ pp 5-6, this court stated that;-

“… Mr. Mushonga submitted that the applicant was seeking rescission in terms of r 449 as read together with Order 9 r 63. Firstly, applicant does not refer to r 63 in its pleadings. Rule 63 was first mentioned in the oral submissions and therefore was not pleaded. Secondly, I am not sure whether the two rules can be read together. It is my view that there are three separate ways in which a judgment in default of one party may be set aside. This can be done in terms of r 63, or r 449 (1) (a) or in terms of the common law”.

It is my view that, in order to qualify for relief under r 449 (1) (a) a litigant must show that:

1. the judgment was erroneously sought or erroneously granted.
2. the  judgment was  granted in the absence of the applicant or one of the parties;
3. the applicant's rights or interests were affected by the judgment. See Mutebwa v Mutebwa and Anor [5].
4. there has been no inordinate delay in applying for rescission of the judgment.

It is my view that, in order to qualify for relief under r 63, a litigant must show that:

1. Judgment was given in the absence of the applicant under these rules or any other law.
2. The application was filed of record and set down for hearing within one calendar month of the date when applicant acquired knowledge of the judgment.
3. Condonation of late filing has been sought and obtained where applicant fails to apply for rescission within one month of the date of knowledge of the judgment.
4.  There is “good and sufficient cause” for the granting of the order. See Viking Woodwork v Blue Bella Enterprises 1988(2) ZLR 249 (S) @ 251 B-D, Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S) @ 516 C-E, 518A-B,  Sibanda v Ntini 2002 (1) ZLR 264 (S), Pastor Jameson Moyo & 3 Ors v Reverend Richard John Sibanda & The Apostolic Faith Mission SC 6/10.
5. The phrase ‘good and sufficient cause’ has been construed to mean that the applicant must:

1. 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

1. show that he/she has a bona fide defense to plaintiff's claim. See Songore v Olivine    Industries (Pvt) Ltd 1988 (2) ZLR 210)

It is also my view that, in order to qualify for relief in terms of this court’s common law power to rescind its own judgments a litigant must show that:

1. The court’ discretion that it is being asked to exercise is broader than the requirements of both rr 449 and 63.

1.  Whether, having regard to all the circumstances of the case, including applicant’s explanation for the default, this is a proper case for the grant of the indulgence. See Gondo & Anor v Stfrets Merchant Bank Ltd 1997 (1) ZLR 201, and de Wet & Ors v Western Bank Ltd 1979 (2) SA 1031 @ 1043 ( I have expressed these views before in one of my previous judgments Jonas Mushosho v Lloyd Mudimu & Anor[6])

             I am persuaded by the respondent’s contention, which is supported by the three ways in which judgment given in default can be set aside, that the striking out of a defence for failure to attend a Pre- trial Conference constitutes a judgment, given in default. Consequently, the applicant ought to have elected to approach the court using any one of the three methods of rescission. From the contents of the founding affidavit, there is no explanation for the default from the applicant himself, let alone a reasonable application as the applicant, in a very cavalier fashion, refers the court to Mr Paul’s letter to the respondent’s legal practitioners. The founding affidavit’s brevity in the half hearted attempt to make the necessary averments regarding the bona fides of the application is woefully inadequate in my view. The one sentence reference to the applicant’s defence on the merits is surely insufficient to lay the requisite basis, in the founding papers, of that requirement for rescission of a judgment granted in default. See Mereki v Forrester Estate Private Limited[7], Sai Enterprises Private Limited v Attish Investments Private Limited[8], and Ramvali Trust Trustees v UDC Ltd & Ors [9].

            The applicant is not properly before the court. The rules of this court do not provide for an application for reinstatement of a defence which will have been struck out for failure to attend a scheduled Pre-Trial Conference. The rules provide three ways in which any judgment given in default can be rescinded. Unfortunately for the applicant, all three methods of rescission of judgment require that the necessary averments be set out in the founding affidavit, which in this case they were not. The relief sought is incompetent. The law is clear, and had the applicant and his legal practitioner applied their minds to the rules of this court, they would have brought an appropriate application, buttressed by the necessary averments. To show its displeasure at this waste of its time, the court will make a punitive order as to costs. For these reasons, the application before the court be and is dismissed with costs on a legal practitioner and client scale.

Wintertons, applicant’s legal practitioners

Nyika, Kanengoni & Partners, respondent’s legal practitioners

[1] 2008 (2) ZLR 219

[2] 2007 (2) ZLR 71 (H)

[3] 8th ed Jonathan Law p 179

[4] HH 4/07 @ pp 5-6,

[5] 2001 (2) SA 193

[6] HH 443-13

[7] 2010 (2) ZLR 351(H)

[8] 2007 (2) 89 (S)

[9] 1998 (1) ZLR 110 (S)