Likhwani Ndlovu (N.O) (In his capacity as Executor Dative In E/L Edias Ndlovu DRB 38/21) v Thulani Ndlovu and Nomandla Mkhwananzi and City of Bulawayo and Master of the High Court (N.O)

### Preamble
1
HB 268/22
HC 1074/22
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LIKHWA NDLOVU (N.O)

(In his capacity as Executor Dative

In E/L Edias Ndlovu DRB 38/21)

Versus

THULANI NDLOVU

And

NOMANDLA MKHWANANZI

And

CITY OF BULAWAYO

And

MASTER OF THE HIGH COURT (N.O)

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 12 OCTOBER AND 3 NOVEMBER 2022

Opposed Application

H. Shenje, for the applicant

Ms M.N Sibanda, for the 1st and 2nd respondents

MAKONESE J: 	This is an application for rescission of judgment and upliftment of bar.  The application is opposed by 1st and 2nd respondents.  After hearing argument in this matter I reserved judgment.  These are the reasons for my ruling in this matter.

Factual Background

Sometime in October 2021, applicant as the Executor of the Estate of the Late Edias Ndlovu sold to the 1st and 2nd respondents an immovable property being stand 5398 Magwegwe West, Bulawayo.  Applicant was legally represented by his erstwhile legal practitioners, Sansole and Senda.  Respondents fulfilled their obligations by paying the agreed purchase price in the sum of USD$14 000.00.  It is not in dispute that at all material times the applicant accepted payment in respect of the purchase price at his legal practitioners’ offices, and personally acknowledged receipt of the full amount.  Applicant failed to fulfil the terms of the agreement.  Respondents were supposed to take vacant possession of the property on the 15th of January 2022.  However, the applicant disappeared and respondents were unable to access the immovable property.  Respondents instituted legal action against the applicant for an order directing him to sign all relevant documents to transfer ownership of the immovable property into the respondents’ names.  On 12th April 2022 default judgment was entered against the applicant.  On 21 June 2022 applicant filed this application for rescission of judgment and upliftment of the automatic bar.

SUBMISSIONS BY THE APPLICANT

The applicant avers that he was not in willful default and that respondents are clinging to a judgment obtained in circumstances where no blame should be laid on the applicant, personally.  Applicant submits that when proceedings were instituted under case number HC 185/22 process was served on the applicant on the 2nd day of February 2022.  Applicant filed an appearance to defend on 16 February 2022.  Applicant does not dispute that the Notice of Appearance to Defend was never served on the respondents.  No reasonable explanation is given as to why the Appearance to Defend was never served.  A supporting affidavit deposed by one Lameck Mahohwa, a legal clerk employed by Shenje and Company Legal Practitioners seeks to explain that the reason the Notice of Appearance to defend was never served was that he forgot to serve the process on the respondents’ legal practitioners.  Applicant avers that the Notice of Appearance to Defend was filed on the 11th of February 2022.  Applicant does not explain why he makes an averrement in the the Founding Affidavit which is contradictory to the pleadings.

As regards the merits the applicant contends that the claim by the respondents is fraught with illegalities.  Applicant submits that the transaction between him and the respondents was conducted with a “heavy involvement” of a senior lawyer who ill-advised him as to the exact nature of the transaction.  Applicant claims that the lawyer received almost 70% of the purchase price paid by the respondents.  Applicant admits that he received the rest of the purchase price.  Applicant states that the non-joinder of the legal practitioner who handled the transaction on his behalf is fatal to the respondents’ claims against him.  Applicant submits that he has already sold the property to one Benjamin Zhou before these proceedings are concluded.  Applicant submits that respondents must sue for a refund of the purchase price.

SUBMISSIONS BY THE RESPONDENTS

The respondents submit that the summons and declaration were served on the 3rd of February 2022.  The dies inducae expired on the 17th of February 2022.  The applicant failed to file an Appearance to Defend as required by the Rules of this court.  On the 9th of March 2022 the respondents filed a Chamber Application for default judgment.  Judgment was entered in default on the 12th of April 2022, a month after the date of filing of the application for default judgment.  Respondents contend no reasonable explanation for failing to enter an appearance to defend has been placed before the court.  Respondents aver that the applicant is approaching the court with dirty hands.  Applicant’s defence to the claims is based on an assertion that at the time of issuing the summons he had already sold the property to a third party.

Respondent argues that applicant is asking this court to facilitate criminal conduct.  Applicant admits receiving money from the respondents and then selling the same immovable property to a third party.  This court is urged not to condone such blatant criminal behavior on the part of the applicant.

Respondents contend that there are no prospects of success in this matter, and  applicant  has no bona fide defence to the claims.  Applicant acted fraudulently in receiving payment from the respondents and then going on to sell the same property to a third party.  Applicant has not placed any information before the court that amounts to a defence.  The reasons proffered by the applicant do not amount to a bona fide defence to the claims.

WHETHER THE APPLICANT WAS IN WILFUL DEFAULT

The courts in this jurisdiction have settled what amounts to a bona fide defence.  In Mdokwani v Shoniwa 1992 (1) ZLR 269 (S), the court interpreted willful default to mean a deliberate failure to attend with full knowledge of the set down and the risks attendant to such default.  See: Neuman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR)

In Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400, at p 403; the court held that:-

“willfulness of a default is seldom, if ever, clear cut.  There is almost always an element of negligence and the question arises whether it was gross negligence and whether it was so gross as to amount to willfulness.  And in coming to a conclusion there is a certain weighing of the balance between the extent of the negligence and the merits of the defence.”

See also: Songore v Griffiths 1992 (1) ZLR 172 (S)

In this matter, the applicant did not file and serve the appearance to defend in terms of the rules.  In fact the appearance to defend was never served on the respondents.  In the Founding Affidavit there is an assertion that the appearance to defend was filed on the 11th of February 2022.  That in fact is not true.  The Appearance to Defend was filed with the court on the 16th of February 2022.  The process was not served on respondents.  There was therefore no service of the Appearance to Defend as required by the Rules. It is trite that what constitutes service is the filing and service of such process on the other party.  The explanation tendered is not reasonable.  Applicant’s legal practitioners did not even file or attempt to file a plea until judgment in default was entered.  It took the applicant a further 2 months before the application for rescission of judgment was filed after default judgment was obtained. One can only but conclude, that there was gross negligence on the part of the applicant and his lawyers.  I make the finding that no reasonable explanation has been proffered by the applicant for the default.

WHETHER THERE ARE PROSPECTS OF SUCCESS

There are clearly no prospects of success in this matter.  The applicant has no bona fide defence to respondents’ claims.  Applicant has failed to substantiate the averrements in his Founding Affidavit.  There is no legal justification for the applicant to deny respondents transfer of the immovable property.  Applicant admits that he received the full purchase price in accordance with the agreement of sale.  The applicant then went on to sell the same property to a third party in flagrant disregard of the agreement with respondents.  This court cannot therefore, aid the applicant in the furtherance of this criminal conduct.

A party seeking rescission of judgment given in default must show that there is “good and sufficient cause” for the application to be granted.  In Zinondo v CAFCA Ltd SC 64-2017 the court held that for an application for rescission of a default judgment to be granted the court must be satisfied that there is good and sufficient cause to rescind the order granted in default.

In Stockhill v Griffiths 1992 (1) ZLR 172 (S) at p 173 D GUBBAY CJ aptly noted that:-

“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 Rule 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-18-86 (unreported); Roland and Anor v McDonald 1986 (2) ZLR 216 (S) at 226 E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F.  They are:

the reasonableness of the applicant’s explanation for the default (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defence on the merits of the case which carries some prospects of success.  These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

I am satisfied, that the applicant’s explanation for the default is unreasonable.  The defence is not bona fide.  Applicant seeks the assistance of this court to perpetuate an illegality.  Applicant engaged in fraudulent conduct by selling the property that had already been sold to the respondents, to another party.  This behavior and conduct does not amount to a bona fide defence on the merits.

In the result and accordingly, the application for rescission of judgment is hereby dismissed with costs.

Shenje and Company, applicant’s legal practitioners

Vundla-Phulu & Partners, 1st and 2nd respondents’ legal practitioners