DISTRIBUTABLE
(82)
Judgment
No S.C. 99\2002
Civil
Appeal No 381\95
W
MATAMBANADZO v ZVIDZAI JAMESON ZVAVAMWE
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE
SEPTEMBER 16 & NOVEMBER 11, 2002
H.
Zhou,
for the appellant
M.C.
Mukome,
for the respondent
MALABA
JA: This appeal is from a judgment of the Magistrates Court
dated 6 June 1995 by which an application by the appellant
for the
rescission of a default judgment given on 8 March 1995 was dismissed
with costs.
The
facts of the case are as follows. The default judgment was given in
an action commenced by the respondent, to whom I shall
refer as the
plaintiff, on 10 June 1992 claiming an order of eviction of the
appellant from Stand No 2786-7 Zengeza Township
(the property)
situate in the District of Chitungwiza.
The
appellant, to whom I shall refer as the defendant, had taken
occupation of the property in terms of an agreement of sale
entered
into by the parties on 15 May 1987. The plaintiff had, in terms of
the contract, sold the property to the defendant for
$8 000 payable
by means of a deposit of $5 500 upon the signing of the agreement and
the balance of $2 500 in two instalments of
$1 250 on 1 June 1997 and
1 July 1987.
Clause
4 of the agreement of sale provided that:-
Should
the purchaser fail to make payment of any instalment on due date
thereof, or should he commit a breach of any of the terms
and
conditions of this sale, then and in such case the seller shall be
entitled to give to the purchaser notice in writing requiring
him to
make such payment or remedy such breach within 14 (fourteen) days of
posting the notice and if the purchaser fails to do so,
the seller
shall have the right forthwith:-
to cancel
the sale and to retake possession of the property hereby sold
A
letter was written by the plaintiff to the defendant On 5 November
1991 drawing his attention to the fact that he had failed to
pay the
full purchase price by 1 July 1987. He was given notice to rectify
the breach within fourteen days. Another letter written
on 12
December 1991 cancelled the sale on the ground that the defendant had
failed to comply with the notice of 5 November.
The
fact that the two letters were written by the plaintiff in terms of
clause 4 of the agreement of sale was common cause. The
letters
explain the conduct of the plaintiff in issuing summons out of the
magistrate's court on 10 June 1992, claiming an order
of eviction of
the defendant from the property.
The
defendant entered appearance to defend. His plea amounted to a
denial that he was in breach of contract. He alleged that he
had
paid the sum of $2 500 to A.R. Chizikani and Partners who were the
plaintiffs legal practitioners at the time the parties
entered
into the agreement of sale. He did not produce receipts as proof of
payment. No date was given when the payment was made.
There was
no evidence at all that the money was paid on or before 1 July 1987.
The
defendant alleged that the plaintiff had refused to accept the money
he had tendered as payment of the purchase price. He again
did not
say when he made the tender. The plaintiff, however, said he
refused to accept the money because payment was tendered long
after
the sale had been cancelled.
Pleadings
in the case closed. On 21 October 1994 the defendants legal
practitioners were served with a notice of set down of
the case for
trial on 8 March 1995. The legal practitioners renounced agency on
8 February but gave as defendants last known
address, No 17
Pringle Road Greendale, Harare. On 28 February 1995 the defendant
was served at the address in question with a notice,
by the
plaintiff, to amend the summons and plea to the counter-claim at the
trial. The notice which was served on the defendant
by the
messenger of court, gave the trial date as 8 March 1995.
On
the trial date the defendant was in default. An order for his
eviction from the property was granted with costs. On 10 March
the
plaintiffs legal practitioners wrote to the defendant at No 17
Pringle Road Greendale advising him of the default judgment
granted
against him. The defendant said he received the letter on 6 April.
On
4 May 1995 the defendant made the application for the rescission of
the default judgment. He averred that he was not in wilful
default.
The reason he gave was that his erstwhile legal practitioners had
not told him of the set down date. The learned magistrate
held that
the defendant was in wilful default and dismissed the application.
It was argued
on appeal by Mr Zhou
that the defendant was not in wilful default because his erstwhile
legal practitioners did not make him aware of the date when the
case
was set down for trial. He said the failure by the legal
practitioners to bring the set down date to the attention of the
defendant could not be visited on him in deciding whether he was in
wilful default of appearance at the trial of the case. According
to
Mr Zhou,
the erstwhile legal practitioners were no longer representing the
defendant at the time of his default. Mr Zhou
also argued that the learned magistrate should have found that the
defendant had a bona
fide
defence to the plaintiffs claim.
Whilst
accepting that the two letters dated 5 November and 12 December 1991
were written by the plaintiff to the defendant in terms
of clause 4
of the agreement of sale, Mr Zhou
contended that receipt of the letters by the defendant had not been
proved. He said it had not been shown that the defendant had
not
paid the full purchase price for the property in terms of the
contract of sale.
The
question on appeal is whether or not the learned magistrate
misdirected himself in holding that the defendant was in wilful
default
of appearance at the trial. Both counsel agreed that under
Order 30 Rule 2(1) of the Magistrate Court (Civil) Rules 1980, a
finding
of wilful default against an applicant for rescission of
judgment precludes the court from exercising its discretion in favour
of
ordering rescission.
In Mdokwani
v Shoniwa
1992 (1) ZLR 269 (S) at 271 A-G EBRAHIM JA said:-
Clearly
it was incumbent upon the appellant at the hearing before the
magistrate to satisfy the court that he was not in wilful default.
He had to show that there was an acceptable reason for the late
filing of the appearance to defend and that he has a bona
fide
defence to the respondents action.
The meaning of
wilful default was aptly put by MURRAY CJ in the case of Newman
(Pvt) Ltd v Marks
1960 (2) SA 170 (SR) at 173A-D where he stated the principle as
follows:
The
true test, to my mind, is whether the default is a deliberate one
i.e. when a defendant with full knowledge of the set
down and of
the risks attendant on his default freely takes a decision to refrain
from appearing. I can do no better than quote
the following passage
from the judgment of BOWEN LJ, in the case of In
re Young
and Harstons
Contract LR
31 Ch Division at pp 174, 195, a passage approved by GARDINER JP in
Hendricks
v Allen
1928 CPD 519:
The
other word which it is sought to define is wilful. That is a
word of familiar use in every branch of law, and although
in some
branches of the law it may have a special meaning it generally, as
used in courts of law, implies nothing blameable, but
merely that the
person of whose action or default the expression is used, is a free
agent and that what has been done arises from
the spontaneous action
of his will. It amounts to nothing more than this, that he knows
what he is doing, and intends to do what
he is doing, and is a free
agent. Now, if that is all, you can get out of the analysis of
these words, it becomes plain that to
endeavour to classify every
conceivable contingency with a view of defining what will be and what
will not be wilful default, would
be idle. You cannot define the
words wilful default more than I have defined them. And I
only use the definition for the
purpose of showing that the term is a
simple one and not technical at all.
Mr Zhous
submission that the defendant was not in wilful default because the
information on which he ought to have acted as a free agent in
attending the trial was known only to his erstwhile legal
practitioners is not supported by the evidence. The facts show that
the
defendant had knowledge of the set down date from another source
other than his erstwhile legal practitioners. He did not deny
receipt of the notice to amend the summons and plea to the
counter-claim served upon him by the plaintiff on 28 February 1995.
The
notice to amend the summons and plea to the counter-claim gave 8
March as the date the case was set down for trial. The defendant
was no longer acting through the legal practitioners. He was a free
agent. He knew that he was not attending trial when he did
not do
so. His default was wilful in the sense that he deliberately
refrained from attending the hearing of the action. The reason
he
gave for his default was not acceptable because it was not the direct
cause of his default.
The
defendant gave as a defence to the plaintiffs claim for an order
of his eviction from the property the allegation that he
had paid the
full purchase price in terms of the agreement of sale. In other
words he was saying he had discharged his obligations.
The
defendant failed to disclose facts from which the court could satisfy
itself that there was a bona
fide
defence. The onus
would have been on the defendant at the trial to prove timeous
payment of the full purchase price. No receipts were produced on
which proof of payment at the trial could be inferred. The date the
payment was alleged to have been made was not given. There
was,
therefore, no basis on which the court could hold that the defendant
would establish timeous payment of the full purchase price
at the
trial.
On the other
hand it was clear from the writing of the two letters by the
plaintiff on 5 November and 12 December 1991 respectively
that he
regarded the defendant to be in breach of the contract of sale. The
defendant was aware of the fact that the plaintiff
was accusing him
of failure to perform his contractual obligations to pay the
instalments of $1 250 on 1 June and 1 July 1987.
He was expected to
annex to the founding affidavit in the application for rescission of
the judgment, documents such as receipts
of payment to counter the
alleged breach of contract. No supporting affidavit was obtained
from the person to whom the defendant
said he paid the money. What
was even more telling against the bona
fides
of the defence the defendant intended to raise against the
plaintiffs claim was his failure to deny the averment that he
tendered
the payment of the outstanding balance of the purchase price
after cancellation of the agreement of sale. If the defendant had
paid the money to the plaintiffs agent in terms of the contract on
1 July 1987 he would have discharged his contractual obligations.
There would have been no need to tender the payment of the same
amount to the plaintiff at the time he filed his plea on 7 January
1993. The conclusion reached is that the defendant did not show to
the court a
quo
that there was a bona
fide
defence to the plaintiffs action.
The
appeal is, accordingly, dismissed with costs.
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
Musunga &
Associates,
appellant's legal practitioners
Muvingi
& Machaya,
respondent's legal practitioners