Local Authorities Pension Fund v Trust Me Security (Pvt) Ltd (HC 5757 of 2014) [2015] ZWHHC 340 (31 March 2015)

LOCAL AUTHORITIES PENSION FUND versus TRUST ME SECURITY ORGANISATION (PVT) LTD HH 340-15 HC 5757/14 HIGH COURT OF ZIMBABWE UCHENA J HARARE, 20 February and 1 April 2015 Opposed application Mrs R Gasa, for the applicant N M Phiri, for the respondent UCHENA J: The respondent issued summons against the applicant claiming payment of US$114,515-75. The applicant entered appearance to defend and immediately engaged the respondent in discussions over the amount claimed which the applicant was disputing. The respondent was claiming fees for four guards while the applicant was acknowledging use of two guards. The respondent agreed to a meeting between its legal practitioner and the applicant’s legal practitioner. The meeting failed to take off because of bereavement in the respondent’s legal practitioner’s family. The meeting was to be rescheduled, but the respondent served the applicant with a notice to plead. The applicant responded by filing a request for further particulars. The parties exchanged correspondence on the propriety of their respective conduct. Neither party yielded to the other’s position. The respondent made a chamber application for default judgment which was granted. The applicant’s legal practitioners, continued to communicate with the respondent’s legal practitioners about the possible resolution of the disputes between the parties. In-spite of the continued communication the respondent’s legal practitioners did not disclose to the applicant’s legal practitioners that they had applied for and obtained a default judgment. The applicant applied for an order to compel the respondent to give it the further particulars it had asked for. While the applicant was still pursuing its application for an order to compel the respondent to give it further particulars the Sheriff visited its premises for purposes of HH 340-15 HC 5757/14 executing the default judgment. This led to the applicant’s application for rescission of the default judgment. The respondent opposed the applicant’s application. The fact that the parties were still communicating about resolving the dispute over the amount claimed, the number of guards deployed and the fees agreed to by the parties proves that the applicant was not in wilful default. The disputes about the amount claimed and the respondent’s willingness to hold a round table conference indicates the availability of a bona fide defence on the applicant’s part. The respondent had previously on 27 November 2013 indicated that the debt was US$17, 500-13, but between that date and 16 December 2013 the debt, inexplicably jumped to US$ 86, 340-86. The amount further jumped from US$86, 340- 86 to US$114,515-75 by February 2014. It seems to me that the applicant genuinely wanted to hold a round table conference to resolve the disputes about the amount claimed while the respondent was deliberately avoiding the round table conference while secretly intending to execute the default judgment it was not disclosing to the applicant. Mrs Gasa for the applicant submitted in the alternative that the default judgment was erroneously granted and should be rescinded in terms of Order 49 r 449. She submitted that the respondent applied for default judgment through a chamber application in-spite of the claim not being a debt or liquidated claim. She relied on Order 9 r 58 (1) and (2) which provides as follows; “(1) In cases where the plaintiff’s claim is not for a debt or liquidated demand only, and the defendant has failed to enter appearance after the period prescribed in the summons for entering appearance, the plaintiff shall file and serve his declaration if he desires to obtain judgment. (2) Where the defendant remains in default the plaintiff may after the expiry of ten days from the date of service of the declaration set down the case for judgment on an appropriate day specified in subrule (1) of rule 223 without notice to the defendant, and thereupon, subject to rule 60, the court may grant judgment or make such order as it considers the plaintiff is entitled to upon the summons or declaration.” Mr Phiri for the respondent apart from raising a preliminary issue on the applicability of r 449, to which Mrs Gasa responded by saying it was not a preliminary issue but an issue on the merits did not say anything further about the default judgment having been erroneously granted. It is true that an application for default judgment, for a claim which is not liquid has to be made in terms of r 223 (1). Rule 58 does not apply in this case as the applicant had entered appearance to defend and had been barred. HH 340-15 HC 5757/14 The rule which applies to the rescinding of the default judgment in this case is r 59. This is because, the applicant had entered appearance to defend, and had been barred. Order 9 r 59 (1) of The High Court Rules 1971 which provides for an application for a default judgment after the barring of the other party provides as follows; “(1) In cases where the plaintiff’s claim is not for a debt or liquidated demand only, or where it is for a debt or liquidated demand only but argument in relation to any aspect of the suit is considered necessary, and the defendant has failed to enter appearance to defend within the period prescribed in the summons for entering appearance, or, having entered appearance, has been duly barred in default of plea, the plaintiff may without notice to the defendant set down the case for judgment on an appropriate day specified in subrule (1) of rule 223, and thereupon, subject to rule 60, the court may grant judgment or make such order as it considers the plaintiff is entitled to upon the summons or declaration.” There is no doubt that there was need for argument in relation to the amount claimed, the number of guards who were deployed and the agreed fees. It is also clear that the applicant had been barred in default of a plea. The respondent should have set down its application for default judgment in terms of r 223 (1) instead of through a chamber application. It is therefore correct that the default judgment was erroneously granted and must be rescinded. I therefore make the following order; 1 The default judgment granted by this Honourable Court on 5 June 2014 under reference Case No 1637/14 be and is hereby rescinded. 2 The respondent be and is hereby ordered to furnish the applicant with the requested further particulars within 10 (ten) days of this order. 3 The respondent shall pay the applicant’s costs of suit on the legal practitioner and client scale. Messers Gasa Nyamadzawo & Associates, applicant’s legal practitioners Messers Muvingi & Mugadza, respondent’s legal practitioners