Judgment No. HB 113/2004

                                                                                    Case No. HC 24/02 & 266/02

                                                                                    X-Ref HC 2021/01

BEIRA INTERNATIONAL TRADE &

COMMERCIAL CENTRE

And

JAMES ZUWA DZUMBIRA

Versus

THE  ZIMBABW BATA SHOE CO. LTD

And

DEPUTY SHERIFF, HARARE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 2 SEPTEMBER 2004

G Mabuyefor applicants

N Mathonsifor first respondent

Opposed Application

            NDOU J:        The first applicant is a  company with limited liability registered according to the laws of Zimbabwe and having its registered office at 4^th Floor, Hurudza House, N. Mandela Way, Harare but which address it has since left and is presently carrying on business at Case Dos Bisos, Pina Pedral Alves, Cabral, Chamite, Mozambique.  The second applicant, a Zimbabwean national, is first applicant’s director and he resides in Harare.

            On 1 November 1999 the first applicant (hereinafter referred to as Beira International) and first respondent (hereinafter referred to as Bata) entered into a franchise agreement in terms of which inter alia.

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1. Bata sold and delivered goods to Beira International;
2. Bata supplied and installed fixtures and fittings at the franchise location at a cost of $471 675,00.

The franchise agreement was terminated in and around July 1999.  At the termination of the franchise agreement it was agreed between Bata and Beira International that the latter would pay to Bata the sum of US$26 405,60 being the value of the goods in stock

            On 1 July 1998 Bata and Beira International entered into a loan agreement whereby Bata lent to Beira International the sum of $350 000,00 subject, inter alia, to the following terms:-

1. that the amount would be repaid by the 30^th of September 1998 together with an administration fee of $18 375,00; and
2. that should Beira International fail to pay in terms of the agreement, a penalty fee of $8 750,00 per month would be levied by plaintiff.

The second plaintiff bound himself as surety in solidum and co-principal debtor in respect of the loan agreement and renounced the benefits of excussion and division.  Despite a demand dated 27 July 2000, the applicants failed to pay the amounts due resulting in Bata issuing summons under case HC 2021/01 on 10 July 2001.  The summons were served on the second applicant personally and on also on behalf of Beira International.  At the time of such service, the summons did not ex facie bear the case number.  From the papers it is clear that the summons was issued by the “district” registrar at Gweru Magistrates’ Court and then sent to this court for allocation of the case number.  The Assistant Registrar of this court allocated case number HC 2021/01 on 10 July 2001, i.e. well before the service of the summons. 

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This case number was received by Bata’s legal practitioners on 13 July 2001.  The Deputy Sheriff’s return had the case number inserted but it is not clear at what stage this was done.  The applicants did not enter appearance to defend timeously.  They were out of time by one day.  They did not bother to seek the indulgence of the court in this regard.  On 21 August 2001 Bata applied for a default judgment.  Th application was granted on 12 September 2001.  On 1 October 2001 Bata’s legal practitioners wrote to the applicants’ legal practitioners informing them of the default judgment against them.  The applicant’s only responded as late as 28 November 2001.

Meanwhile, on 9 October 2001 Bata took steps to satisfy its judgment by issuing a writ of execution against a movable property.  On 8 December 2001, pursuant to the aforesaid writ, the Deputy Sheriff, Harare removed the applicant’s property.  This prompted the applicants to launch an urgent chamber application in HC 24/02 wherein they obtained a provisional order to stay execution pending the outcome of the application for rescission.

At the hearing I dismissed the application for rescission in HC 266/02 and further discharged the provisional order granted by this court on 8 January 2002 under HC 24/02.  This judgment provides reasons for doing so.

Removal of the automatic bar

            As indicated above,  the appearance to defend was a day out of time.  On account of this applicant’s dilatoriness they were barred and judgment was entered in favour of Bata.  The applicants did not seek condonation for their failure to act timeously, albeit by a single day.  If the applicants had sought the court’s indulgence, I believe the court would have followed the course suggested in Gibson & Jones (Pty) Ltd v Smith 1952(4) SA 87(7)(T).  In the absence of an application for condonation,

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the court was not in a position to grant one.  The court may not grant an indulgence which the applicants themselves have not bothered to seek – Forestry Commission vMoyo 1997(1) ZLR 254 (S) at 260C; Matsambire v Gweru City Council 183-95; Mutare City Council v Mudzime and Ors 1999(2) ZLR 140 (SC) at 143; Nambuta and Ors v Dunlop Zimbabwe Ltd & Anor HB-14-04 andMpofu and Anor v Parks & Wild Life Management Authority & Ors HB-36-04.  In the circumstances, there was no appearance to defendant before the court.  The bar operated against the applicants.

Application for rescission

            It is trite that a final judgment, being res judicata, is not easily set aside, but the court will do so on various grounds such as fraud, discovery of new documents, error or procedural irregularity.  The court has power to rescind a judgment obtained on default that sufficient cause for rescission has been shown.  In principle two essential elements are:

1. that the party seeking relief must present a reasonable and acceptable explanation for his default, and
2. that on the merits that party has a bona fide defence  which, prima facie carries some prospects of success – G D Haulage (Pvt) Ltd v Munungwi Bus Services (Pvt) Ltd 1980 (1) SA 729 (ZRAD);Chetty v Law Society, Transvaal 1985(2) SA 756 (A); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S);Bishi v Secretary for Education 1989(2) ZLR 240 (HC); HPP Studies (Pvt) Ltd vAssociated Newspapers of Zimbabwe (Pvt) Ltd 2000(1) ZLR 318 (HC); Saitis and C v Fenlake [2002] 4 ALL SA 50 and The Civil Practice of the

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Supreme Court of South Africa, Herbstein and Van Winsen (4^th Ed) at pages 690-1.

In casu, the applicants did not even file their application on time.  The application fell foul of order 9 rule 63(1) of this court’s rules which states:-

“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.”

            The applicants did not apply for condonation.  The judgment was given on 12 September 2001.  On 1 October 2001, Bata’s legal practitioners wrote to applicants’ legal practitioners informing them, inter alia, about the judgment and the date on which it was given.  The application was only filed on 25 January 2002.  Even in their affidavit the applicants merely say they became aware of the judgment “in November 2001”.  They do not say when in November 2001 they became aware.  Whichever version one accepts the applicants still remain well outside the one month period in rule 63(1).  They should have made a substantive application for condonation because this is a grave non-compliance with rule 63(1).  It is the making of the application that triggers the discretion to extend time.  In the absence of such application for condonation, I cannot condone what is on the face of it a grave non-compliance – Forestry Commission v Moyo supra and Matsambire v Gweru City Council, supra.  How can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?  In every such application the respondent is entitled to be heard in opposition.  He must be permitted an opportunity to persuade the court that the indulgence sought is not warranted.  Without hearing

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him the court cannot be satisfied that he will suffer no possible prejudice by the condonation – Director Civil Aviation v Hall 1990 (2) ZLR 354 (S) at 357D-G.

            The applicants are not properly before this court.  All other issues raised by the applicants are only relevant when the applicants are properly before the court.  They are not.  Their application is characterised by grave non-compliance within the rules.  They did not even bother to regularise such non-compliance –Apostolic Faith Mission in Zimbabwe & Ors v Murefu SC-28-03.  In light of my above finding the provisional order granted under HC 24/02 on 8 January 2002 must also be discharged.

            It is for these reasons that I gave the above mentioned orders.

Mabuye and Co, c/o Sibusiso Ndlovu Legal Practitioners, applicants’ legal practitioners

Dazinger & Partners, c/o Webb, Low & Barry,first respondent’s legal practitioners