1

HH 291-15

HC 2119/15

REF: HC 6300/14

                                                                                                                                                                                             

                                                                        

BEAUTY CHIBAYA-NYAMASOKA

versus

EDWARD RUZIVE

and

VIOLET VIMBAI RUZIVE

And

SHERIFF FOR ZIMBABWE N.O.

 

 

 

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 13 March 2015, 18 March 2015, 25 March 2015

 

 

 

Urgent Chamber Application

 

 

 

 I. Mataka, for applicant

B. Machengete, for 1^st & 2^nd respondent

 

 

CHIGUMBA J. This matter came before me via the urgent chamber book on 13 March 2015. I struck the matter off the urgent chamber roll for the reason that the applicant, who was a self actor, had no complied with the provisions of Order 32, Rule 244 of the Rules of the High Court 1971. The certificate of urgency which was filed of record was defective. On the same day, applicant engaged the services of her current legal practitioners of record who attended to the defect and addressed a letter to the Registrar seeking that the matter be placed before me for consideration of the merits. The applicant filed a supplementary affidavit in support of the request for a hearing, as well as a proper certificate of service in terms of the rules of this court. My view was that the matter had been struck off for a procedural defect which, once it had been attended to, entitled the matter to be re-enrolled on the urgent chamber roll. I acceded to the applicant’s request.

The application before the court is one for stay of execution pending determination of an application for rescission of judgment. The interim relief sought is for the third respondent to be directed and ordered to stay the execution against the applicant’s property, removal of the property being scheduled for 10 March 2015, pursuant to a default judgment obtained by the respondents under case number HC6300/14, dated 10 November 2014. The default judgment was granted in chambers, and it was ordered that the applicant pay to the respondents the sum of USD$37 000-00 together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full, as well as costs of suit on a legal-practitioner client scale. The applicant seeks an order in the alternative, that if removal will have already have taken place, the third respondent be ordered to restore the property upon service of the interim order on him. In the founding affidavit, the applicant averred that she only became aware of the default judgment on 5 March 2015 when she was served with the notice of seizure and attachment by the third respondent.

The applicant filed an application for rescission of judgment simultaneously with the application for stay of execution in terms of Order 9 Rule 63 of the rules of this court. It is trite that, before acceding to an application for stay of execution pending an application for rescission of judgment, the court must determine whether the application for rescission of judgment has good prospects of success on its merits. Only where such an application is likely to succeed will execution of judgment be stayed. Before considering the merits of the application for rescission of judgment however, we will look at whether the requirements of urgency have been met in this matter. The test for urgency is settled.

It has been held that:

 

            “Applications are frequently made for urgent relief. What constitutes urgency is not only      the             imminent arrival of the day of reckoning; a matter is urgent if, at the time the need to act      arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from         action until the deadline draws near is not the type of urgency contemplated by the rules”. See [1] .

 

 

 

 

            It has also been held that:

               

            “For a court to deal with a matter on an urgent basis, it must be satisfied of a number of       important aspects. The court has laid down guidelines to be followed. If by its nature the          circumstances are such that the matter cannot wait in the sense that if not dealt with          immediately irreparable prejudice will result, the court can be inclined to deal with it on            an        urgent basis. Further, it must be clear that the applicant did on his own part treat the matter            as urgent. In other words if the applicant does not act immediately and waits for       doomsday to    arrive, and does not give a reasonable explanation for that  delay in taking action, he cannot             expect to convince the court that the matter is indeed one that warrants          to be dealt with            on an             urgent basis…” See [2] And[3], and[4]

 

            In my view, which I previously expressed in the case of Finwood Investments Private Limited & Anor v Tetrad Investment Bank Limited & Anor [5] , in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case-law, must be met:

A matter will be deemed urgent if:

1. The matter cannot wait at the time when the need to act arises.
2. Irreparable prejudice will result, if the matter is not dealt with straight away without delay.
3. There is prima facie evidence that the applicant treated the matter as urgent.
4. Applicant gives a sensible, rational and realistic explanation for any delay in taking action.
5. There is no satisfactory alternative remedy.

 

       It is my view that the submissions made by the respondents on the question of urgency were not instructive in this matter. Counsel for the respondents conceded, at the hearing of the matter that there was no evidence that the applicant was aware that judgment had been granted against her in default, in November 2014. He conceded that although summons was served in terms of the rules, ‘by affixing it on the outer principal door after diligent search’, it was possible that the applicant had moved from those premises and that she was not aware that summons had been served against her. The court accepted the applicant’s submission that she only became aware of the judgment on 5 March 2015, and that a delay of four days while she prepared her urgent chamber application for stay of execution could by no stretch of the imagination be deemed to be ‘inordinate’. Applicant acted when the need to act arose on the 5 March 2015. The applicant stands to be irreparably financially prejudiced if this matter is heard as an ordinary court application. The evidence on record supports the assertion that the applicant treated the matter as urgent. Applicant has no suitable alternative remedy. The requirements of urgency are met by the circumstances of this case.

The facts giving rise to this matter are that summons commencing action was served at number 19 Welburn, Ballantyne Park, Borrowdale Harare. The applicant averred that she no longer resided at these premises and had moved to a different address, number 32 Boundary Road Highlands in Harare. The applicant averred further, that the respondents were aware of her change of address and had been to the new address. For this reason, the applicant averred that she was not in willful default as she did not have sight of the summons and was served at the wrong address. The applicant submitted that, at the time of the service of the summons, Messrs Gill, Godlonton & Gerrans were her legal practitioners of record who were duly authorized to receive process on her behalf. Consequently the manner of service of summons was unnecessary and unreasonable in the circumstances. The applicant submitted that her legal practitioners advised the respondents that she intended to defend herself against their claim.

On the question of the applicant’s bona fides, it was submitted that the applicant has a bona fide defence to this claim, and the court was referred to a letter dated 17 December 2013, which letter sets out the historical nature of the relationship between the parties. In 2011, the parties entered into a partnership agreement in terms of which they agreed to supply various goods to customers here in Zimbabwe for a profit, of USD$2 600-00 every month. The partnership lasted for a period of one and a half years after which it was mutually terminated in June 2013 because of financial constraints from customers. The applicant denied ever holding any funds on behalf of the respondents during the course of the partnership. A second partnership was subsequently entered into whereby the parties would supply consignments of work-suits and protective hats. The anticipated earnings were USD$ 37 000-00, and the parties agreed to split the profit equally between them. The applicant denied that she had fraudulently misrepresented to the respondents that she had won a tender to supply work suits, aprons and hats to the City of Harare. She submitted that is was a fact that she was awarded such a tender and that, she has the requisite documents to prove this. The applicant denied ever pledging her flat as security to the respondents. Finally, it was averred on behalf of the applicant that the consignment exists and could still be sold.

On the prospects of success of the application for rescission of judgment the applicant referred the court to the attached application for rescission and averred that her application had good prospects of success. The respondents filed a notice of opposition on 13 March 2015, in which they denied that the applicant had any prospects of success in the application for rescission of judgment, more particularly, that she did not have a good bona fide defence to their claim. Turning to the merits of the matter, Order 9 rule 61 provides that:

            “63. Court may set aside judgment given in default

            (1) 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.

            (2) 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 give leave to the      defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and                              otherwise as the court considers just.

            (3) Unless an applicant for the setting aside of a judgment in terms of this rule proves to the                                contrary, he shall be presumed to have had knowledge of the judgment within two days after                        the date thereof”.

 

            The phrase ‘good and sufficient cause has been interpreted to mean the following; in Cairns Executors v Gaarn[6], the court said the following:

            “It would be quite impossible to frame an exhaustive definition of what would constitute     sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper            the exercise of a discretion which the Rules have purposely made very extensive         and which it is highly desirable not to abridge.”

 

            See also Harare Sports Club & Anor v United Bottlers Ltd [7],  where it was held that:

 

            “… this power has traditionally been stated in extremely circumscribed terms, because of the             principle of functus officio, the desirability of finality in litigation and considerations of res judicata, but the perceived strictures of the common law have been abated by rules of court.        These allow the rescission, for "good and sufficient cause", of default  judgments and judgments            entered in terms of a written contract, and the rescission, variation or correction of judgments or      orders on the grounds of error. Where a judgment was given in default, there is no question of a             final judgment given on the merits, so there is no question of functus officio or res judicata…”

 

             In the case of Deweras Farm (Pvt) ltd & Ors v Zimbabwe Banking Corp Ltd [8], a farming company had an overdraft with a bank. The bank took judgment against the company in a sum which the parties at that time regarded as the amount outstanding on the overdraft. This action was not opposed and default judgment was obtained. Following a judgment of the High Court relating to the in duplum rule, the company and its two directors applied for rescission of judgment. The application for rescission was dismissed and the appellants appealed against this decision. It was held that the High Court Rules require only "good and sufficient cause'' as the basis of rescission of judgment. This gives the court a wide discretion and it is not possible to provide an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. Even where there has been willful default there may still sometimes be good and sufficient cause for granting rescission. The good and sufficient cause, for instance, might arise from the motive behind the default.

            In the case of Beitbridge Rural District Council v Russel Construction (Pvt) Ltd [9],  after failure by the appellant council to pay the respondent for construction work carried out, summons was issued against the council in September 1993, claiming the sum due plus interest. No appearance to defend was entered within the 10 day period and the council was automatically barred. At that stage, both parties were represented by the same firm of practitioners, who advised both to seek other practitioners. The council's new practitioners were briefed in January 1994, and purported to enter appearance to defend. They did not apply for removal of the bar. The respondent briefed its practitioners in June, and applied for default judgment in respect of the interest claimed, the capital having in the meantime been paid. Default judgment was granted, of which the council became aware when its property was attached. In August, the council applied for rescission of the default judgment. The application was refused by the High Court. On appeal, it was held that in granting rescission the court normally considers:

1. the applicant's explanation for his default;

(b) the applicant's good faith; and

(c) the bona fides of his defence on the merits

(d) as well as the prospects of success.  See also du Preez v Hughes NO 1957 R&N 706 (SR); GD Haulage (Pvt) Ltd v Mumurgwi Bus Service (Pvt) Ltd 1980 (1) SA 729 (ZRA), Stockil v Griffiths1992 (1) ZLR 172 (SC).

 

            In the case of  Mdokwani v Shonihwa 1992 (1) ZLR 269 (SC)[10] the court said the following:

 

            “It is incumbent on the appellant to satisfy the court that he was not in willful default in       the       sense that knowing of the set down and of the risks attendant on his default, he      deliberately      refrained from appearing. He had to show that there was an acceptable          reason for the late filing           of his appearance to defend and that he had a bona fide defence    to the respondent's action”.   See         also;

 

            GD Haulage (Pvt) Ltd v Mumurgwi Bus Svcs (Pvt) Ltd 1979 RLR 447 (A), Neuman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR), Simba v Simba S-164-90 (unreported), Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S), Salooje & Anor v Min of Community Development 1965 (2) SA 135 (A), S v McNab 1986 (2) ZLR 280 (S).

            In considering whether the requirements of urgency had been met, the court already made a finding that the applicant was not in willful default. The court found the explanation given by the applicant to be reasonable, and probable, despite the respondent’s protestations, that she had moved addresses and that, not only were the respondents aware of this, her legal practitioners of record were authorized to receive process on her behalf and had already advised the respondent that they were instructed to defend the matter by the applicant. It is the respondent’s bona fides which the court is not satisfied with, in choosing to rely on the manner of service that they did when they knew full well that applicant was legally represented and that she intended to contest their claim. It is my view that, despite the prima facie evidence provided by the acknowledgement of debt allegedly signed by the applicant, the applicant has a good bona fide defence to the respondent’s claims. The applicant has goods prospects of success in her application for rescission of judgment. During the hearing of the matter it was submitted on behalf of the applicant that she was still in possession of the consignments of goods, which could still be sold and money recovered. Respondents were invited to inspect the consignment to satisfy themselves that it exists. That in my view, constitutes a good defence to the respondents’ claim.

                     It is my view, that based on the papers filed of record and the submissions made by counsel at the hearing of the matter, the applicant has adduced sufficient evidence to persuade the court to exercise its discretion in her favor and grant the relief that she is seeking. The balance of convenience favors the granting of the relief sought, when regard is had to the fact that the court was satisfied with the applicant's explanation for her default; the applicant's good faith; and the bona fides of her defence on the merits as well as the prospects of success of her application for rescission of judgment. For these reasons:

      IT IS HEREBY ORDERED THAT:

1. The third respondent be and is hereby directed and ordered to stay forthwith the execution of the applicant’s property scheduled on 10 March 2015 in pursuit of the default judgment granted under case number HC6300/14.
2. Should removal of the goods have already taken place, the third respondent shall upon service of this order restore the removed property to the applicant.
3. Costs shall remain in the cause.

 

 

 

 

 

Messrs Chambati Mataka & Makonese, applicant’s legal practitioners

Messrs Rubaya & Chatambudza, 1^st and 2^nd respondent’s legal practitioners