Mabhena v Kandale N.O.. (HC 1811 of 2002; XREF HC 1811 of 2002) [2004] ZWBHC 103 (1 September 2004)

Judgment No. HB 103/2004 Case No. HC 369/03 X-Ref HC 1811/02 PILAZE PRINCE MABHENA Versus OLIVE KANDALE N. O. IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 4 JULY 2003 & 2 SEPTEMBER 2004 R Nyathi for applicant Ms N Ncube for respondent NDOU J: Sometime in 1999 the applicant and the respondent’s late husband entered into an agreement of sale in terms of which the former sought to sell the latter a Nissan pick-up truck, engine number Z24442180 and chassis number 6607165775087. The purchase price was agreed at $180 000,00. The purchaser paid $100 000,00 as deposit. Another lump sum of $22 500 was paid. The agreement was only reduced to writing by the respondent as the executor dative and both she and the applicant signed. According to this written agreement, the balance of $57 000,00 was meant to be paid in instalments of $3 000,00 per month. This latter agreement was signed in December 2000. Soon after the signing i.e. on 11 December 2000 the respondent deposited $20 000 into the applicant’s account. This catered for instalments until June 2001 i.e. it was a prepayment of the instalments. In June 2001 the respondent paid another $12 000,00 which catered for four months. In January 2001 the respondent has also paid $2 500,00 to the Bulawayo City Council at the applicant’s instance. This amount would also be deducted from the purchase price of the vehicle. Until June 2001 the parties did not seem to have a problem as far as the agreement is concerned. The applicant asked for the registration book of the vehicle ostensibly to renew the permit as the vehicle was still registered in South Africa. She HB 103/04 HC 369/03 also gave the applicant $2 500,00 to pay for the renewal of the permit. On 28 October 2001 offered the applicant the outstanding balance of $43 000,00. The applicant suggested that they go to his place of abode in Trenance to collect the registration book. They drove to Trenance in two vehicles. The applicant requested to drive the disputed vehicle just to get a feel of it and the respondent’s son drove the applicant’s vehicle. That was ultimately how the respondent lost possession of the vehicle. She eventually reported the matter to the police and the applicant was summoned. He came to the police accompanied by his legal practitioner. The police did not press any criminal charge and it was agreed that the parties meet at the offices of the applicant’s legal practitioner. When the respondent arrived there with the balance of $43 000,00 the applicant was not present but his legal practitioner advised the respondent that he had instructed him that the Zimbabwe dollar had devalued and that applicant wanted her to pay $600 000,00 over and above the initial agreed $180 000,00. She refused to do so. On 18 July 2002, the respondent issued summons wherein she sought the return of the vehicle or, alternatively, its replacement value. The summons were served on the applicant through his employee, Sihlobo Mkwananzi at his (i.e applicant’s shop) i.e. Mawala Store, Nerine Road, Trenance, Bulawayo. The applicant did not enter appearance to defend resulting in this court granting an order in favour of the respondent against the applicant. In casu, the applicant seeks rescission of the said order granted after his default. It is trite that in every civil action a defendant who wishes to defend the proceedings must within the time allowed after the service of summons on him or her, HB 103/04 HC 369/03 the dies induciae, deliver a notice of intention to defend either personally or through his legal practitioner – Express Container Movers C C v Mountjoy 1993 (2) SA 302 (W); Khumalo v Mafurirano HB-11-04 and order 7 rule 48 and 50 of the High Court of Zimbabwe Rules, 1971. The court has power to rescind a judgment obtained on default of appearance provided that sufficient cause for rescission has been shown. In principle two essential elements are (a) that the party seeking the rescission must present a reasonably and acceptable explanation for his default, and, (b) that on the merits that party has a bona fide defence which, prima facie, carries some prospects of success – Chetty v Law Society, Transvaal 1985(2) SA 756 (A); Songare v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210 (S); Bishi v Secretary for Education 1989 (2) ZLR 240 (HC); HPP Studios (Pvt) Ltd v ANZ (Pvt) Ltd 2000(1) ZLR 318 (HC); Saitis and C v Fenlake [2000] 4 ALL SA 50 and order 9 rule 63 of the Rules. Reasons for failure to file appearance to defend: Reasonableness of the applicant’s explanation for the default It is common cause that the summons were served at the applicant’s shop through his employee. Service was effected on 25 July 2002 and the default judgment was obtained over three months later, i.e. on 30 October 2002. His explanation is basically that he is ordinarily resident in South Africa. It is doubtful that in that period he did not have access to his shop and his employee. The respondent averred that the applicant ordinarily resides at a farm along Victoria Falls Road “where all his belongings are.” The applicant did not bother to file an answering affidavit so this averment is not controverted. The applicant did not bother to envince his absence HB 103/04 HC 369/03 from Zimbabwe through his travel documents, unless he did so through what is commonly referred to as border-jumping. He did bother to file a supporting affidavit from his employee Sihlobo Mkwananzi that she did hand over the summons to him. In the circumstances I find the applicant’s explanation for the default as not being candid and comprehensible. The explanation is not satisfactory to warrant my indulgence. It is important for the applicant for rescission to be candid because an applicant who admits that he or she was negligent in his or her tardiness may nonetheless be found to merit rescission if he or she shows bona fides – Songare v Olivine Industries (Pvt) Ltd, supra at 211E-F. But one who puts forward a less than candid reason may have more difficulty in satisfying the court of his good faith. Is the application properly before the court? In addition this application does not comply with the provisions of rule 63(1) because by 20 January 2003 the applicant was aware of the default judgment. He was supposed to have filed this application by not later than 20 February 2003. He did so a day later. A delay is a delay whether it is merely by one day. The applicant did not make a substantive application for condonation. Where an applicant seeks such an indulgence from the court he or she should at least show some measure of seriousness by making a proper application otherwise the court will not exercise its discretion bestowed by virtue of rule 4C (a) of the High Court Rules and depart therefrom in the interest of justice – Forestry Commission v Moyo 1997(1) ZLR 254 (S); Matsambire v Gweru City Council S-183-95; Sumbereru v Chirunda 1992(1) ZLR 240 (H); Wilmott v Zimbabwe Owner Driver Organisation (Pvt) Ltd S-211-96 and Mpofu and Anor v Parks & Wildlife Management Authority & Ors HB 36-04. HB 103/04 HC 369/03 The bona fides of the applicant and defence on the merits As already alluded to above, the applicant did not file an answering affidavit. In the circumstances, those averments in the respondent’s opposing affidavit have to be treated as admitted. If there are disputes of fact, then the respondent’s version is usually accepted. From the facts outlined above it is clear that the balance outstanding from the original purchase price of $180 000,00 is $43 000,00. The respondent tendered the said amount which the applicant refused to accept and instead demanding $600 000 to cater for the demands of the inflation. In terms of the written agreement of sale, the respondent was up to date with the instalments. The written agreement was contracted after the death of the respondent’s husband. The terms and condition of the latter differ materially from the “original” oral agreement between the applicant and the respondent’s husband. It is clear therefore, that the original agreement was extinguished and replaced by the new one. This is compromise (transactio) and as such any breach which the applicant might have relied upon in terms of the original agreement falls away. This matter stands to be decided upon in terms of the new agreement entered into in December 2000 (Annexure A) – Denis Peters Investments (Pty) Ltd v Ollerenshow & Ors 1977(1) SA 197(W); Viola v G J Harvey (Pty) Ltd 1964(2) SA 535 (T) and Leader Tread Zimbabwe (Pvt) Ltd v Smith HH-104-03. In the circumstances it is irrelevant whether or not there was a breach in terms of the original agreement. In the circumstances I am of the view that the applicant does not have a bona fide defence to the respondent’s and has failed to show good and sufficient cause for the rescission of the default judgment – Ndebele v Ncube 1992 (1) HB 103/04 HC 369/03 ZLR 288 (S); Stevenson v Broadly N O 1972 (2) RLR 467; Stockil v Griffiths 1992(1) ZLR 172 (S); Deweras Farm (Pvt) Ltd & Ors v Zimbank 1998(1) ZLR 368 (S) and Zimbank v Masendeke 1995 (2) ZLR 400 (S). Bearing in mind the convenience of the court, the need to bring finality to litigation, the unreasonableness of the applicant’s explanation for the default and the lack of bona fides of his defence on the merits, I find that I am unable to exercise my discretion in his favour. I accordingly, dismiss the application with costs. Sibusiso Ndlovu, applicant’s legal practitioners Lazarus & Sarif, respondent’s legal practitioners