Changa v Njovana & Ors (HC 1222 of 2012) [2015] ZWHHC 521 (9 June 2015)

1 HH 521-15 HC 1222/12 CLIFFORD CHANGA versus JOHANNES NJOVANA and PRIME REAL ESTATE (PRIVATE) LTD and GLICKNET INVESTMENTS and MARGARET MASUNUNGURE and ST SEBASTIAN REAL ESTATE HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 28 May 2015& 10 June 2015 Opposed Application R. Mugandani, for the applicant M. T Nyamutswa, for the 1st, 2nd& 3rd respondents No appearance for 4th& 5th respondents MUREMBA J: A default judgment dismissing the applicant’s claim against the respondent was granted against the applicant on 9 October 2012 after the applicant and his legal practitioner one Mr Rutanhira defaulted attending a Pre-trial Conference. Mr Rutanhira who deposed to the founding affidavit in the present application for rescission of the default judgment stated that initially the Pre-trial Conference was set down for 17 July 2012 but because the applicant had gone to the USA for medical treatment and was unable to attend they decided to seek a postponement to enable the applicant to attend the Pre Trial Conference. A legal practitioner from applicant’s lawyer’s law firm one Mr George Georgiou attended the Pre-trial Conference to seek the postponement. Mr Rutanhira stated that the Pre-trial Conference was postponed to 9 October 2012 but Mr Georgiou did not bring it to his attention that the matter had been postponed to a specific date. Mr Rutanhira said that as the legal practitioner who was seized with the matter he assumed that the matter had been postponed sine die and that they would be served with a fresh notice of set down. He said that upon getting his file back from Mr Georgiou, he filed it away. Mr Rutanhira said that he was HH 521-15 HC 1222/12 surprised to learn that a default judgment dismissing the applicant’s claim had been granted on 9 October 2012. It was submitted that applicant was not in wilful default. It was also argued that he has good prospects of success in the case on the merits since he is suing for damages for unlawful arrest, detention and malicious prosecution against the respondents. It was submitted that the respondents who were acting in cahoots caused him to be prosecuted for attempted fraud which charges he was later acquitted of after having been prosecuted. He is claiming damages in the sum of US$ 213 000-00. Although the fourth and the fifth respondents were served with the application they did not file any response. The first to the third respondents opposed the application. In their affidavits they raised a point in limine to the effect that Mr Rutanhira who deposed to the founding affidavit on behalf of the applicant had no authority to do so. However, at the hearing they abandoned that point in limine. First to third respondents argued that the applicant was in wilful default. They submitted that he cannot be allowed to escape simply becausehis legal practitioner Mr Rutanhira was not diligent enough to note that the Pre Trial Conference had been postponed to a specific date yet he is the one who had tasked his colleague Mr Georgiou to attend the Pre Trial Conference on his behalf and seek a postponement. The three respondents stated that at the Pre Trial Conference of 17 July 2012 Mr Georgiou asked for a postponement stating that Mr Rutanhira had been involved in a car accident. They said that no explanation was given whatsoever about the applicant being ill and out of the country for medical treatment. To them this explanation that the applicant was out of the country receiving medical treatment was an afterthought. They challenged the applicant to produce proof that he had been out of the country seeking medical attention since the explanations were now inconsistent. In the answering affidavit Mr Rutanhira attached copies of the applicant’s passport and the USA VISA. The VISA shows that it was issued on 14 September 2012 and its expiry date was 12 September 2013. I also noticed that in addition to the applicant’s VISA Mr Rutanhira attached some extracts from the applicant’s passport. The extracts bear some Harare International Airport and OR Tambo International Airport date stamps. Without explaining the dates at all, he simply said that these extracts help show that the applicant was not in the country when the second Pre Trial Conference was held on 9 October 2012. I could not make head and tale of the dates in the absence of an explanation from the applicant. I HH 521-15 HC 1222/12 believe that when a document is attached as an annexure it ought to be explained fully for the court to understand it. It is not the duty of the court to labour itself with trying to understand the document. All I managed to decipher is that the applicant left Harare International Airport on 6 October 2012. On the same day he passed through O. R Tambo International Airport in transit. His destination is not shown. Then on 6 November 2012 he passed through O. R Tambo International Airport again. Again it is not shown where he ended, but I suppose what it means is that between 6 October 2012 and 6 November 2012 the applicant was out of the country. To begin with these date stamps do not show that the applicant went to America and was in America as alleged. Secondly, nothing shows that the applicant had gone out of the country to receive medical treatment. There is no evidence that he was ill at all. However, the crux of the matter lies with the second Pre Trial Conference date. It is submitted on behalf of the applicant that his legal practitioner had not advised him of the new date since he himself had not got to know of the new date. There is nothing to show that the applicant himself was aware of the new date. In Stockhil v Grifitts 1992 (1) ZLR 172 (S) @ 173 Gubbay CJ said, “The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by r 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported); Roland E & Anor v McDonnell 1986 (2) ZLR 216 (S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are: (i) (ii) (iii) the reasonableness of the applicant’s explanation for the default; the bona fides of the application to rescind the judgment; and the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.” In Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (S) it was held that: “Wilful default occurs when a party, with the full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing: Neuman (Pvt) Ltd v Marks 1960 R & N 166 (SR) at 169; 1960 (2) SA 170 (SR) at 173; Simbi v Simbi S-164-90 at p 6; Mdokwani v Shoniwa 1992 (1) ZLR 269 (S) at 271.” Mr Rutanhira explained what caused him not to attend the Pre Trial Conference. In wilful default there is almost always an element of negligence. The question is was the negligence so gross as to mount to wilfulness? HH 521-15 HC 1222/12 The first to third respondents also argued that the applicant has no prospects of success on the merits because the first to third respondents were not being malicious when they reported the case of attempted fraud against him to the police. They wanted the police to investigate the matter since they were the estate agent which was managing the property in question. They wondered why the same property was up for sale without their knowledge. It is common cause that the applicant is the plaintiff in this matter. He wants damages for being unlawfully arrested, detained and maliciously prosecuted. It is common cause that the report that the respondents made to the police is what resulted in his arrest and prosecution. It is common cause that he was acquitted at the end of the trial. This in a way shows that he has chances of succeeding in his claim at trial. Having issued summons, I do not believe that he took a deliberate action not to attend the Pre Trial Conference when his legal practitioner had advised him of the date. I cannot think of a reason why he would choose to abandon his claim after having prosecuted his case up to the close of pleadings. I also find no fault on the part of the applicant himself. Turning to the legal Practitioner, Mr Rutanhira I would say that he was negligent in the way he conducted himself after having asked a fellow legal practitioner to seek a postponement on his behalf. It is illogical that he failed to make a follow up on the case and simply assumed that he would be served with a notice of the new set down date. However, I would not say the negligence although gross is so gross as to amount to wilfulness. This is also evidenced by the fact that upon learning of the default judgment on the same day it was granted, the legal practitioner filed an application for rescission of the judgment within 10 days. To me these are not the actions of a legal practitioner who deliberately chose not to attend the Pre Trial Conference when he was aware of the date. Again this is a case where I do not think that the sins of the legal Practitioner ought to be visited on the client. I am alive to the fact that there is need for finality in litigation. However, there is need to balance that with the need to do justice between man and man. Neither of the two should be compromised. Here is a case where a man was prosecuted in a criminal trial and was acquitted. He is claiming unlawful arrest and malicious prosecution. He instituted civil proceedings right up to Pre Trial Conference stage. He is not to blame for his non-attendance at the Pre Trial Conference, but his lawyer. On the other hand the respondents are saying that they are not to blame for the applicant’s arrest. All they did was to make a report of what they had been told and it was the police’s decision to arrest and have the applicant prosecuted. For justice to prevail the applicant should be allowed his day in court. HH 521-15 HC 1222/12 In the result, the application for rescission of the default judgment succeeds. It be and is hereby ordered that 1. The application for rescission of the default judgment granted in HC 1222/12 on 9 October 2012is rescinded. 2. The applicant’s claim is reinstated. 3. Costs shall be in the cause. Scanlen & Holderness, applicant’s legal practitioners Mugomeza & Mazhindu, 1st, 2nd & 3rd respondent’s legal practitioners