Judgment No. HB 60/15

                                                                                                                        Case No. HC 805/15

                                                                                                    X REF HC 1895/11; HC 3703/12

JABULANI NCUBE

Versus

INNOCENT NYATHI

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 23 FEBRUARY & 19 MARCH 2015

Miss N. Ndlovu for the applicant

S.S. Mlaudzi for the respondent

Opposed Court Application

            MOYO J:       This is an application for condonation of the late filing of an application for rescission of judgment.  The parties have been engaged in protracted litigation dating far back as 2006.

            The parties in 2006 entered into a loan agreement.  Part of the terms of the loan agreement were that:-

“That the loanee offers his house being stand 32699 Bulawayo Township of Bulawayo Township Lands as security”.

            Clause 10 of the loan agreement also provides as follows:

“In the event the loanee breaches any content of this agreement the house that he has given as security to the loaner shall hold him to this agreement (sic) and claim transfer of the pledged stand number 32699 Entumbane area (above-named)”.

            In this matter the applicant was the loanee and the respondent was the loaner.  Applicant did make some payments towards the loan, although it looks like they were not made timeously.  It is also not clear as to whether the loan was paid up or not.

            In such applications what is central are the following principles:-

“It is well established that, in considering application 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 enquiry relevant considerations may include the degree of success … (agreements), the importance of the case, the respondent’s interest in the finality of his judgment and the avoidance of an unnecessary delay in the administration of justice.  The list is not exhaustive.  These factors are not individually decisive but are interrelated and must be weighed one against the other, thus a slight delay and a good explanation, may help compensate for prospects of success which are not strong.”

            Per the case of United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A) at 720F – G.

            Our Supreme Court also listed the considerations relevant to the determination of such an application in the case of K M Auctions (Pvt) Ltd vs Adanesh Samuel & Anor SC 15-12.  In this case they were listed as:-

1. the degree of non-compliance
2. the explanation for it
3. the importance of the case
4. the prospects of success
5. the respondent’s interest in the finality of the case
6. the convenience of the court
7. the avoidance of unnecessary delay in the administration of justice

Apparently the delay in this matter has been quite lengthy, initially a default judgment against applicant was rescinded in 2008, applicant did nothing, prompting the respondent to seek directions on how to proceed.  Eventually default judgment awarding respondent stand 32699 Entumbane Township was granted on 10 November 2011.  Applicant states in his founding affidavit that he learnt of the default judgment in February 2012, when respondent intended to evict him from the said property.  He states that his legal practitioner relocated and went to Botswana and that he never was aware that the legal practitioner had relocated and that there were court proceedings against him.  He then approached another firm of lawyers who filed an urgent application for stay of execution that was eventually dismissed.  He says he then had financial problems and could not approach lawyers for assistance.  He then approached his current legal practitioners who advised him that condonation had to be sought in order to file an application for rescission of judgment.  Applicant has not gone into much detail as to the specific times he approached these different firms of lawyers.  His explanation lacks information and is very slippery.  He does not volunteer much information on the delay of more than 2 years counting from February 2012 to October 2014 when this application was filed.  He tries to blame the departure of his legal practitioner from Zimbabwe to Botswana.  However, he had a duty to check on his matter and not wait until when he hears from the deputy sheriff upon execution of the order.  A diligent litigant does not wait for his lawyer to communicate with him especially when the lawyer becomes silent, the litigant is duty bound to enquire from his legal practitioner the status of his case.  In any event the legal practitioner in question was no longer in the picture from February 2012 when applicant became aware of the judgment against him. 

In this regard STEYN CJ in the case of Salajee & Anor NNO vs Minister of Community Development 1065 (2) SA 135 at page 141.

“A litigant … is not entitled to hand over a matter to his attorneys and then wash his hands of it.  If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney …”

I accordingly make a finding that:

Applicant was negligent in the prosecution of his own case.  He has difficulty explaining the delay.   What he has attempted to throw in as an explanation for the delay does not hold any water.

Having found that the delay has not been explained to the satisfaction of the court, I therefore move on to find if there are any other factors that could find favour in the applicant’s situation, for the enquiry does not end with the reasonableness or otherwise of the explanation for the delay.  It goes beyond that.  In the case of Mahachi vs Barclays Bank of Zimbabwe SC-6-06, it was held that in a case where no acceptable explanation for non-compliance with the Rules has been given, the applicant must show very good prospects of success.

In the case of Melane v Santana Insurance Co. Ltd, 1962 (4) SA 531 (A) at 532 C – F, it was stated thus:

“In deciding whether sufficient cause has been shown the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and in essence it is a matter of fairness to both sides.  Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case.  Ordinarily these facts are interrelated, they are compatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.  An attempt to formulate a rule of thumb would only save to harden the arteries of what should be a flexible discretion.  What is needed is an objective conspectus of all the facts.  Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong or the importance of the issue may tend to compensate for a long delay.  And the respondent’s interest in finality must not be overlooked.”  (my emphasis)

I now turn to assess the merits.  In this case, the parties entered into a loan agreement, on the face of it which strikes as an agreement that has certain terms like clause 10 that may be found to be unlawful.  Clause 10 of the agreement in my view is a pactum commissorium. A pactum commissorium is defined in the case of Chimutanda Motor Spares (Pvt) Ltd vs Musare & Anor 1994 ZLR 310 (H) as

“a pact by which the parties agree that if the debtor does not within a certain time release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full property in the thing will irrevocably pass to the creditor in payment of the debt.”

Willes Principles of South African Law 8^th Edition at page 345 established that a valid pledge merely confers the right to retain possession of the thing pledged as security by the pledgor as long as the debt remains unpaid, it does not confer the right of ownership.  The pledger retains ownership of the pledged property.  It would appear that from the afore-stated authorities there is a well grounded contention, prima facie, that the agreement between the parties and the subsequent transfer of the property to the respondent was in fact premised on an illegality.  There is also a problem raised by a reading of the 2 letters written by both applicant’s former legal practitioner to respondent’s legal practitioner and the respondent’s legal practitioner’s response thereto.  These are annexure C on page 28 and the unmarked annexure on page 29 of the bound record.

Annexure C is a letter written by applicant’s former legal practitioner to respondent’s legal practitioner.  It is dated 21 March 2007 it reads as follows:

“Re: Jabulani Ncube vs Innocent Nyathi

The above matter refers

Please find attached the sum of $630 000,00 (Zim Dollars) being the full and final payment of ours’ indebtedness to yours.

We accordingly await receipt of your notice of withdrawal.”

On 26 March 2007, respondent’s legal practitioners responded in the following manner:-

“Re: Jabulani Ncube & Innocent Nyathi

Your letter of 21^st instant refers.

We have receipted your client’s payment and wish to quickly indicate that:-

there is the issue of costs which your client has to settle and these on a comprise are $370 000,00 + 15% VAT = $425 000,00.

There is the issue of inflation as discussed by clients which however, is not part of the summons.

Therefore if your client pays ours within 7 days of the date of this letter we shall withdraw the matter.  Your client’s payment is not full and final bill (sic).”

            It is important to note that these letters give an impression that the debt was paid up save for costs.  The interest referred to in the letter from respondent’s lawyers, is by their own admission not part of the summons.

            The immediate question that arises therefore is, what then was the cause of the transfer of the house from applicant to respondent when the debt was seemingly paid up save for costs?  Is there not a danger that respondent was paid the debt in cash and also took the immovable property?  Even if a balance could be found to have been owing on the loan, would it equate to the appropriation of the immovable property whose value was not even established for purposes of settlement of the loan?  I am of the considered view that applicant has a good case on the merits.

            I am of the considered view that despite the undue delay in seeking to protect his rights the applicant has nonetheless showed good and sufficient cause warranting this court to intervene in his favour.  Despite the applicant’s failure to proffer an acceptable explanation for the delay in noting an application for rescission of judgment, I would borrow from the words of SMALLBERGER JA in the case of National University of Lesotho vs Thabani LSCA 26-08;

“Rules are not cast in stone.  This court retains a discretion to condone a breach of its Rules in order to achieve a just result. The attainment of justice is this court’s ultimate aim.  Thus it has been said that rules exist for the court, not the court for the rules.  The discretionary power of this court must, however not be seen as an encouragement to laxity in the observance of the Rules in the hope that the court will ultimately be sympathetic.  There is a limit to this court’s tolerance.”

            The merits of the applicant’s case, in my view, the fact that the agreement upon which the default judgment was obtained seemingly has problems at law, the fact that there is prima facie evidence that the loan that resulted in the appropriation of applicant’s property, could have been paid up, tilts the scales in this matter heavily in favour of condonation being granted.  For at the end of the day justice must be done between man and man.  The duty of this court is to dispense justice and in a bid to achieve this goal, the court will endeavour to blend the technicalities of a case together with the meritorious aspects of the case in the interests of justice.  On the other hand respondent’s interests in the finality of the case will not suffer any prejudice if this case is re-opened and this court looks into the merits of the case so as to achieve justice.  On the issue of costs, I am of the view that, they should be in the cause.

            I accordingly make the following order:-

1. That applicant’s late noting of an application for rescission of judgment be and is hereby condoned.
2. That applicant be and is hereby ordered to file his application for rescission of judgment in HC 1895/11 within 7 days of the handing down of this judgment.
3. That the costs be in the cause.

Messrs Cheda & Partners, applicant’s legal practitioners

Samp Mlaudzi & Partners, respondent’s legal practitioners