Judgment No. HB 12/2002

                                          Case No. HC 3230/2001

 

WILFRED MANEMO                      1st Applicant

 

and

 

VIMBAI CHIREMBA MANEMO              2nd Applicant

 

versus

 

ALPHONSUS ACHINULO                        1st Respondent

 

and

 

STELLA ACHINULO                     2nd Respondent

 

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

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

 

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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.

 

(my emphasis)

 

      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.

 

 

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Condonation

 

      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

 

63(2) reads,

 

      "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. 

 

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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

 

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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 

 

this temptation.

 

      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

 

court.

 

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      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  

            Registrar's office.

 

      4.    Respondents pay costs for this application at a higher scale.

 

 

 

 

 

Web, Low & Barry, applicants' legal practitioners

Messrs Hwalima & Associates, respondents' legal practitioners