Radar Investments (Pvt) Ltd t/a Macdonald Bricks v Cemzy Enterprises (Pvt) Ltd

### Preamble
1
HB 104/20
HC 1903/18
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RADAR INVESTMENTS (PVT) LTD

t/a MACDONALD BRICKS

versus

CEMZY ENTERPRISES (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 17 JULY 2019 & 25 JUNE 2020

Opposed application

N. Mazibuko for the applicant

B. Sengweni for the respondent

TAKUVA J:	The applicant filed what it termed:

“Urgent Chamber Application for stay of execution and ancillary relief”. The relief sought is couched in the following terms:

“Terms of final order sought

That you show cause why a final order should not be made in the following terms:

It be and is hereby declared that the proceedings under case number HC 1594/15 are a nullity on account of the citing of a non-existent plaintiff.

The attachment and  removal of the applicant’s property pursuant to the court order of the Honourable Mr Justice MATHONSI of the 19th of October 2017 be and is hereby declared to be unlawful and the judgment declared invalid.

Alternatively to paragraph 1 above it be and is hereby declared that the obtaining of the court order under case number HC 1574/15 on the 19th of October 2017 without giving notice to the defendant thereon be and is hereby declared to be invalid and the court order be and is hereby set aside and it is ordered that the applicant’s defence under case number HC 1594/15 be and is hereby reinstated and the matter be set down for a further pre-trial conference in terms of the rules of the High Court.

The respondent shall pay the costs of suit on legal practitioner and client scale.

Interim relief granted

Pending the finalisation of this matter the following interim relief is granted to the applicant.

The applicant’s goods attached and removed by the Additional Sheriff of Bulawayo under case number HC 1594/15 be released forthwith by the same to the applicant at extra costs to the applicant.”

The interim relief was granted by this court per MAKONESE J on 12 July 2012.  The application before me is for confirmation or discharge of the provisional order.  I must confess that this is the first time I have seen such an omnibus relief being sought in the final order.  Be that as it may let me outline the facts leading to this application.  These facts are largely common cause and they show that the case is purely due to the respondent’s flippancy in mis-spelling its name in the summons and declaration.  The error escaped the eyes of the parties, their respondents and two Honourable Judges of this court.  It was only picked up by applicant’s current lawyers who assumed agency at execution stage.

The detailed facts

The respondent is called CEMZY ENTERPRISES (PVT) LTD.  When it sued applicant for wrongful and improper termination of a contract it was cited as CREMZY ENTERPRISES (PVT) LTD.  The respective parties filed pleadings until the matter was set down for a pre-trial conference.  On the date and time appointed for the pre-trial conference the applicant was in default and its defence was accordingly struck off by the Honourable MOYO J.  The matter was referred to the unopposed roll leading to a default judgment being granted against applicant on 19 October 2017 by Honourable MATHONSI J.  In terms of the default judgment, applicant was ordered to pay respondent $94 806,00 for the remainder of the contract between the parties.

Applicant did not apply for rescission of the default judgment.  Instead it elected to engage the respondent with a view to settle the judgment debt.  Following negotiations an amount of $ 29 000,00 was paid by applicant to the respondent.  According to the applicant’s papers, the amount paid is $30 000,00.  Once in possession of a judgment in its favour, respondent through the Sheriff of this court caused judicial attachment of the applicant’s property to satisfy the judgment.  Aggrieved, applicant then filed this application seeking the relief referred to above.

I must point out that after applicant’s default at pre-trial conference, MOYO J issued the following order:

“1.	the defendant is in default.

2.	the defendant’s defence is hereby struck out.

3.	the plaintiff is hereby granted leave to set the matter down on the unopposed roll without any further  reference on notice to the defendant.” (my emphasis)

On these facts, applicant prayed for a declaratory order that the proceedings under case number HC 1594/15 are a nullity by reason of the citing of a non-existent plaintiff.  Alternatively, that the order granted by MATHONSI J was erroneously sought and erroneously granted.  Alternatively, that the respondent is stopped from executing the judgment of MATHONSI J on account of having novated the judgment.  In short, applicant relies on the following grounds;

The plaintiff is non-existent.

The default judgment was erroneously sought and erroneously granted.

Respondent novated the judgment.

Applicant’s argument is that summons were issued against applicant in the name of a non-existent entity thereby rendering the summons invalid.  CREMZY ENTERPRISES (PVT) LTD is not a company duly registered in terms of the Companies Act.  In fact there is no such entity but CEMZY ENTERPRISES (PVT) LTD.  Further, so the argument went, once the court accepts that the summons is a nullity then judgment granted based on the summons is itself a nullity as nothing comes out of a nullity.  Applicant relied on the following cases:

Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd  1996 (2) ZLR 565 (S)

J D Magro Consult & Marketing (Pvt) Ltd vs Editor of the Herald & Anor 2007 (2) ZLR 71 (H)

Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H)

Ngani v Mbanje & Anor ; Mbanje & Anor v Ngani 1987 (2) ZLR 111 (S)

The axiomatic statement to be found in these authorities is that without a plaintiff there can be no claim since the plaintiff is the one who issues the challenge to litigation.

The applicant’s alternative argument is that respondent erroneously sought and was erroneously granted judgment in that it applied for default judgment without giving notice to the applicant which was contrary to the court order made by MOYO J on 29 September 2017.  It was contended that the giving of notice to the applicant was a sine quo non for the granting of the judgment and without such notice, it ought not to have been granted and is a nullity.  The applicant relied on r449 of this court’s rules.

The third and alternative ground for the relief sought is that the respondent novated the judgment in that it accepted a payment of US$30 000,00 in full and final settlement after discussing with respondent’s erstwhile legal practitioner Mr Ndou of Mugiya, Macharaga Law Chambers.  It was further argued that the fact that the respondent failed to file an affidavit by Mr R. Ndou disputing the applicant’s averments as supported by the affidavit of Mr Prince Butshe-Dube and its failure to dispute that it filed a complaint with the Law Society alleging that Mr Ndou had novated the judgment without its instructions proves that there was novation of the judgment.

Finally, it was submitted that the fact that the applicant filed opposing papers to the respondent’s claims notwithstanding the nullity of the summons does not imbue the proceedings with any legality.    Respondent opposed the application on the following grounds.  Firstly it was contended that the error which is regretted is only a spelling error which is not fatal to the plaintiff’s case.  Secondly, it was argued that respondent properly sought the default judgment in that nowhere in MOYO J’s order is it stated that the default judgment was to be set down on notice to the applicant.  Thirdly, respondent submitted that at no time did respondent novate the judgment by MATHONSI J by accepting $30 000,00 in full and final settlement in that the communication between the parties’ legal practitioners suggest without doubt that respondent did not novate the judgment.  Finally, it was argued that applicant is wrongly seeking rescission of judgment under the guise of declaratory relief instead of making the proper applications to effect rescission – See Matyasira v Gonyora N. O. & Ors HH-180-14 and Homas Kapfudza v Tirivangani N. O. and Chitungwiza Municipality HC 5289/05.

On whether or not there is a plaintiff before the court, respondent relied on Roselt Mitchel Enterprises (Pvt) Ltd t/a Metal Components v Haygold Enterprises (Pvt) Ltd HH-31-18.

In casu the issues that come out are:

Whether or not there is a plaintiff in this matter?

Whether or not the default judgment by MATHONSI J was improperly sought and improperly granted?

Whether or not the respondent novated the judgment by MATHONSI J.

I now deal with the issues seriatum.

The need for the proper citation of parties is stated in Cilliers A C et al in Herbesein & Van Winsen’s The Civil Practice of the High Courts of South Africa, 5th ed Vol 1 page 143 as follows;

“Before one cites a party on a summons or in application proceedings, it is  important to consider whether the party has locus standi to sue or be sued (legitimia persona standi in judicio) and to ascertain what the correct citation is.”(my emphasis)

Peter van Blerk in Legal Drafting: Civil Proceedings, Juta and Co. Ltd 2014, while discussing the same principle states:

“Generally speaking it is the practitioner representing the plaintiff who is required to take the initiative in identifying parties to the action.  This function must also receive the consideration of the defendant’s legal practitioner.  It happens from time to time that to use the colloquial expression; the plaintiff has sued the ‘wrong party’ or even although less frequently, that the wrong plaintiff has sued.”  A practitioner faced with one or the other of these situations must identify precisely what has occurred.  In the case of the so-called ‘wrong defendant,’ the first question to be asked is on whom the summons was served.  Is it the party cited in the summons?  If so, the second question is whether the cause of action relied upon by the plaintiff is one that lies against the defendant cited by the plaintiff.  If the party served with the summons is correctly described (ignoring spelling errors or minor immaterial mistakes), then one should admit the alterations concerning the identity of the defendant and deny the appropriate allegations regarding the cause of action.  If the description of the defendant clearly does not apply to the person in which the summons is served, the person served had technically speaking no duty to oppose the proceedings – see page 13. (my emphasis)

In Gariya Safaris (Pvt) Ltd v van Wyk 1996 (2) ZLR 246, MALABA J (as he then was) held inter alia that, “In the  present case the proceedings and judgment following the issuing of summons were null and void because the proceedings had been brought against a non-existent defendant.  Therefore there could be no question of the substitution of a new judgment debtor as there was no old judgment debtor.

In that case action had been instituted against a non-existent company in terms of a deed of suretyship.  The defendant a non-existent company called “Con and Son (Pvt) Ltd” was sued.  In the summons, it was described as “a company duly registered according to the law of Zimbabwe and carrying on business as ranchers and safari operators at Silver Springs Ranch, Bulawayo”.  One van Wyk subsequently acknowledged that he was bound by the deed since he had signed it in his personal capacity.  He confirmed that there was no company by the name “Con and Son (Pvt) Ltd.”

At page 253C-D the learned judge stated the following;

“In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non-existent at the time summons was issued.  The proceedings and judgment that followed the summons were null and void.  To try an action in which there is only one party is an exercise in futility.  There were no two parties to give rise to the existence of a cause of action between them.  There was nothing to be substituted by the respondent as a new judgment debtor.  There was no old judgment debtor.”

In van Vuuren v Braun & Saunders 1910 TPD 950 WESSELS J at p 955 said,

“… Next the summons must specify the defendant.  It is not that it will not be a flaw in the summons if the defendant is not described as accurately as he should be.  If a man is baptized ‘George Smith’ it is no defect in the summons to call him ‘John Smith’ because the individual is pointed out with sufficient accuracy.  But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inserting the defendant’s name in court.”  (emphasis added)

In van Herden v du Plessis 1969 (3) SA 298 (O) a summons was issued against a person who had already died.  An application was made for an order of substitution of the executor testamentary for the deceased.  The application which was opposed was refused on the ground that the summons was wholly invalid since it was issued against a non-existent person.

Stewart Scott Kennedy v  Mazongororo Syringes  (Pvt) Ltd 1996 (2) ZLR 565 (S) is another case where a summons was declared null and void for citing a wrong and non-existent plaintiff.  Plaintiff had been cited as Stewart Scott Kennedy.  At the inception of the trial an application was made by counsel to delete the name of the plaintiff as Stewart Scott Kennedy and to substitute for it the names of parties “practicing in the name and style of Stewart Scott Zimbabwe”.  The action had been instituted in the name of a dissolved partnership.  The application for substitution was dismissed by the High Court per SANDURA J and the applicant appealed to the Supreme Court where it was held per GUBBAY CJ (as he then was) that as a partnership does not have a separate legal personality from that of the partners, the correct method of citing a partnership was to cite the names of the individual members, trading or carrying on business in partnership under the style or form of …”

It was held further, that where a partnership is dissolved the partners may, but are not obliged to transfer their rights and liabilities to the incoming partners.  Consequently, it could not be assumed that the claim against the respondent had been ceded to Stewart Scott Zimbabwe.

Finally, it was held that the institution of an action in the name of Stewart Scott Kennedy was void ab initio because “without a plaintiff there can be no claim.  The partnership of Stewart Scott Kennedy had been dissolved and did not exist at the time the summons was issued.  The summons being invalid could not be rectified by amendment.”  (emphasis added)

At page 572E-F, the court  remarked that, “The situation sought from the court a quo related, then, not only to a plaintiff but the persona described in the summons neither exists now, nor  did it exist at the date of issue of the summons.  The partnership firm had been dissolved eighteen months before.”

While dealing with the need for the proper citation of parties and the legal consequences thereof HLATSHWAYO JA in Marange Resources (Pvt) Ltd v

Core Mining & Minerals (Pvt) Ltd (in liquidation)

Moses Chinhengo (Retired Judge) N.O.

President of the Law Society of Zimbabwe N.O.

Attorney General of Zimbabwe N.O SC-36-16 said;

“Thus, the fate of an application where a wrong party is cited is clear.  The proceedings cannot be sustained.  In casu, the wrong citation was compounded by the appellant’s stubborn refusal to rectify the error even when assured by the other side that such an application would not be opposed.  This application should therefore suffer not only the general fate consequent upon such errors, but also an exemplary order of costs wrought by the applicant’s unhelpful attitude”.

The appeal was struck off the roll since it was not properly before the court.

What the court found to amount to a material mis-description was that the 1st respondent was cited as a “Private Limited (PVT) company instead of a “Proprietary Limited (PTY)” company.  (Pvt) denotes a private company as envisaged under Zimbabwean law, whilst (Pty) denotes a proprietary company as described under South African law – see section 11 (2) (b) (i) of  the Companies Act (At No. 71 of 2008).

In our jurisdiction very few situations of ‘wrong defendants/respondents’ or wrong plaintiffs/applicants have had to be decided because such errors are routinely rectified in consultation between the parties.  Invariably, the court will order a stay in the proceedings so that the pleadings can be amended so as to bring the proper parties before the court.

The situation in casu is unfortunately different in that although it was the duty of both legal practitioners to ensure that the parties were properly cited, both did not realise that the plaintiff’s name was mis-spelt in the summons.  As I pointed out above this mistake was only discovered when the plaintiff was attempting to execute the judgment.  The issue is whether or not the plaintiff (respondent) in casu can be described as “non-existent?”

According to the “Oxford Advanced Learners Dictionary” the word ‘exist’ means” to be real, to be present in a place or situation”.  The noun ‘existence’ means, the state or fact of being real or of being present.”  Can it be said in casu the plaintiff is not real?  Was the plaintiff not present at the time the summons was issued?”

In my view, the principle that is distilled from all the precedents cited above is that where a litigant is non-existent, the summons is declared invalid and the same goes for the resultant proceedings.  However, it seems to me that the phrase “non-existent” is used to relate (without limiting its meaning) to litigants who were deceased at the time the summons was issued, artificial persons that have no existence at the time the summons is issued, those artificial or natural persons that lack locus standi for one reason or another or those mis-described as ‘Pvt Ltd’ instead of ‘Pty’.  I have not been able to find a case where a summons was declared null and void due to the name of a party being mis-spelt.  Counsel for the applicant in casu has not referred me to any such precedent.

Further, this view has support from Peter van Blerk who has also excluded from this list mis-description arising from spelling errors or minor immaterial mistakes in the description of litigants, be they artificial or natural persons.  This view is further reinforced by WESSELS J’s comments in the van Vuuren case where he said it would not amount to a fatal defect in the summons to describe a person by the name George Smith as John Smith because an individual is pointed out with sufficient accuracy.  In my view, a registered company can be identified with sufficient accuracy.

Other relevant factors that the courts have considered are prejudice to the other party or whether cause of action relied upon by the plaintiff is one that lies against the defendant cited by the plaintiff.

The example given by Peter van Blerk is the exact opposite of what happened in casu.  It is the flip side of the same coin that can be useful in analyzing what happened in casu.  The summons in casu was issued by CEMZY (Pvt) Ltd but somehow the letter R was inserted between the letters C and E thereby altering the name to CREMZY (Pvt) Ltd.  This is purely a spelling error.  Secondly, the summons correctly described the defendant who was served with it together with the declaration.  Thirdly, the summons and declaration clearly and concisely spelt out the cause of action between the parties who are that stage were no strangers.  Fourthly, the defendant understood the plaintiff to be CEMZY (Pvt) Ltd and not CREMZY (Pvt) Ltd.  This is why defendant filed a plea on the merits.  The identity of the plaintiff was not an issue to the defendant at that stage and in my view its legal practitioners proceeded correctly in denying the allegations regarding the cause of action.

On these facts, I cannot think it can be successfully argued that the applicant was prejudiced.  Perhaps this is the reason why Mr Mazibuko for the applicant emphasised that the fact that the applicant filed opposing papers to the respondent’s  claims notwithstanding the nullity of the summons does not imbue the proceedings with any legality.  This could be a valid argument where there is no real plaintiff in existence.

I take the view that it should not amount to a fatal defect in the summons to mis-spell the name of an existing registered company.  I must hasten to point out that I am not dealing with an application to amend the summons.  I am dealing with an application to declare the summons and judgment null and void.  Be that as it may I am of the view that it would not be fair and just to declare the summons and judgment invalid because the plaintiff’s name has been mis-spelt by the addition of one letter.  If the courts were to do that, then in such cases, it would be extremely difficult if not impossible to do justice between man and man.  I have in mind cases where such spelling mistakes are discovered late in the proceedings.

For these reasons, I am of the view that the plaintiff was not a non-existent entity at the time the summons was issued.  The 1st issue is accordingly resolved in favour of the respondent (plaintiff in the main action)

The second issue can be resolved by examining the terms of the order.  It appears to me that once again the applicant’s basis for the setting aside or rescission of the default judgment is a typographical error in the order by MOYO J.  It is a simple typo in my view where the letter ‘r’ was replaced by the letter ‘n’ thereby making the meaning of the paragraph completely illogical and senseless.  Viewed contextually, the word ‘on’ should be ‘or’ so that the meaning of paragraph 3 becomes not only logical and sensible but  also accords with the import of o26 r182 of the High Court Rules 1971.  For clarity’s sake, the paragraph was meant to read, “3.	The plaintiff is hereby granted leave to set the matter down on the unopposed roll without any further reference or notice to the defendant.”  (emphasis added)

What should be noted is that the defendant was in willful default at the pre-trial conference hearing.  His defence was struck out and the court granted the plaintiff leave to set the matter down on the unopposed roll.  Under these circumstances why should applicant be notified of the setting down of the matter on the unopposed roll?  Notice to do what?  In terms of which rule would such a notice be given?  In terms of rules 57 and 59 as read with r223 (1) applications for default judgments are made without notice to the defendant.

In my view, the interpretation that applicant has ascribed to paragraph 3 of the order leads to an absurdity.  The proper meaning is that no notice was to be given to the applicant.  In any event, if this was applicant’s view it should have so proceeded and made an application under r449 of this court rules.  Applicant did not seek to do so for a period in excess of ten months.  It now hides under the guise of declaratory relief to effectively seek rescission of the default judgment.  This court cannot review its own orders under the guise of a declaratory relief – see Munyasira v Gonyora N.O. & Ors HH-180-14 and Thomas Kafudza v Tirivangani N.O. and Chitungwiza Municipality HC 5289/05.  In the circumstances, I find that the default judgment granted by MATHONSI J was neither erroneously sought nor erroneously granted.

The third and alternative ground for the relief sought is that the respondent novated the judgment in that it accepted a payment of US$30 000,00 in full and final settlement after discussion with the respondent’s erstwhile legal practitioner Mr Ndou of Mugiya and Macharaga Law Chambers.  It was further contended that the fact that respondent in its notice of opposition does not deny the novation, it should be taken to have accepted that fact as correct.  Applicant relied on Chihwayo (Pvt) Ltd vs Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S).

Applicant also relied on an affidavit by its erstwhile legal practitioner showing that, respondent novated the judgment.  The fact that respondent failed to dispute the fact that it filed a complaint with the Law Society alleging that Mr Ndou had novated the judgment without its instructions proves beyond any doubt that there was novation of the judgment so the argument went.

Respondent denied that it novated the judgment by accepting $30 000,00 in full and final settlement of the debt.  The respondent’s managing director Irene Chinyanda stated the following;

“3.7	Applicant was not candid with this honourable court in that they misled the court that there was novation of the judgment by respondent’s erstwhile lawyers.  A cursory perusal of the communication between me and respondent’s erstwhile lawyers Messrs Mugiya, Macharaga Law Chambers will confirm that applicant offered to settle the judgment debt through a payment plan which was never finalised albeit they made a partial payment in satisfaction of the judgment debt – see annexure B.

Applicant through their erstwhile lawyer Mr P. Butshe approached respondent’s legal practitioner, Mr Godwin Sengweni with an offer to settle the debt and Mr Godwin Sengweni will confirm that.” (emphasis added)

Indeed, the deponent to this affidavit attached e-mail communication between respondent and its erstwhile legal practitioners showing that a payment plan was to be negotiated and not an agreement to novate the judgment.  Also respondent relied on an affidavit by its current legal representative one Godwin Sengweni.  Mr Sengweni confirmed that he was approached by Mr P. Butshe on 29 June 2018 seeking to negotiate a payment plan on behalf of the applicant. After consulting client a proposal to demand payment of $10 000,00 immediately plus a written commitment to settle the balance at the rate of $10 000,00 per month was made.  He then penned a letter containing these terms to Mr Butshe.  The letter which was received by Mathonsi Ncube Law Chambers filed is Annexure C at page 57 of the record.  According to Mr Sengweni on 2 July 2018 Mr Butshe came to his office asking for a written confirmation of what was outstanding so he could prepare a Deed of Settlement.  He then wrote annexure D on page 56 showing that the balance outstanding was the sum of $67 806,00.

Mr Sengweni was surprised to receive a call from Mr Mazibuko of Messrs Calderwood Bryce Hendrie and Partners on 5 July 2018 asking him to stay execution in order to give Mr Mazibuko time to file an application for a declaratory relief.

While discussing the concept of novation R. H. Chritie, Business Law in Zimbabwe 2nd Ed Juta & Co. 1998 at page 107 states;

“Novation means the replacing of an existing obligation by a new one, the existing obligation being thereby discharged …  Because  novation involves a waiver of existing rights it follows that it will not be presumed  and as held in Ballenden v Salisbury City Council 1949 SR 269, 273, 1949 (1) SA 240, 246, it must be strictly proved.  (emphasis added)

In casu, applicant contends that novation was proved by Mr Butshe’s evidence as outlined in his two affidavits.  I do not agree.  Mr Butshe found himself between a rock and a hard place.  It was his error that led to the default judgment.  He accepted liability in a letter addressed to his former clients suggesting that the client should pay $67 808,00 to the respondent and he will reimburse client (applicant) in instalments – see annexure E on page 66.

However, in his supporting affidavit he said Mr R. Ndou agreed that respondent would be paid a sum of $30 000,00 in three instalments one of which was to be paid by him.  Mr Butshe does not say when exactly was this agreement reached, who the parties present were, why this agreement was never reduced into writing in view of the fact that respondent had a judgment in its favour in the sum of $67 808,00 and had attached applicant’s property..  On these facts, the applicant’s circumstances were dire and it is illogical and unfortunate for one Walter Zimunya to boldly declare that; “I reiterate the point that at all times we were not prepared to pay more than US20 000,00 to the respondent which is why Mr Prince Butshe Dube offered to pay the extra $10 000,00 to make it US$30 000,00.  As appears from Mr Butshe Dube’s affidavit any discussion regarding payment of more than US$30 000,00 were outside our mandate and on the  understanding that Mr Butshe Dube is the one that was going to pay up the difference as we believe we were not liable for no more than what we had agreed to pay, which is US$20 000,00 …  Mr Butshe Dube felt that because of his mistake in not attending the pre-trial conference he would take personal liability for the judgment but at no time were we prepared to pay more than US$20 000,00 …”  (emphasis added)

All this bravado is totally without any legal foundation.  It obviously emanated from Mr Bushe’s magnanimous decision to pay the entire debt as shown in the judgment.  Clearly, it has nothing to do with novation in that applicant could not negotiate a judgment that is extant.  In fact applicant was simply saying we shall pay you the balance – this is a far cry from novation.  Applicant’s position is heads or tails we win in that novation or no novation we shall pay what we want i.e. US$20 000,00.

Coming back to the so called agreement on novaion.  It is common cause that Mr Butshe Dube was approached by the client sometime in May 2018 after the attachment of applicant’s assets.  This is the time he said he approached Mr Ndou to discuss novation.  However according to the e-mails between respondent and its erstwhile legal practitioners, Mr Ndou was no longer handling this matter after Mr Mugiya had taken over throughout the month of May 2018.  Also, according to Mr G. Sengweni, Mr Butshe- Dube approached him on 29 June 2018 wanting to negotiate a payment plan.  If Mr Butshe-Dube knew at this stage of the existence of the agreement to novate the judgment why did he not point this out to Mr Sengweni.  Equally puzzling is why Mr Butshe Dube received but opted to ignore Mr Sengweni’s letter dated 29 Jun 2018?  Surely, if there was indeed an agreement to novate, this letter and its contents must have come as a total surprise to him.  His silence is indeed startling especially when this is pitted against Mr Sengweni’s evidence that Mr Butshe Dube enquired about the total outstanding amount and was told it was US$67 806,00 on 2 July 2018 well after the agreement to novate was allegedly reached.

In proving novation, the applicant had relied on presumptions which is inadequate.  There must be positive proof of the respondent’s waiver of its existing rights.  The applicant has not filed the so called letter of complaint to the Law Society.  Crucially, it has not filed an affidavit from Mr Ndou confirming the agreement to novate.  Surely, it does not make much sense to expect the respondent to file Mr Ndou’s affidavit confirming that they novated the judgment.  In that regard, I do think that it could have been proper for the applicant to obtain an affidavit from Mr Ndou since he was no longer representing the respondent.

Accordingly, I come to the conclusion that there is no reliable evidence to prove that respondent novated the judgment under case umber HC 1594/15.

In the circumstances, the following order is made:

The provisional order be and is hereby discharged.

Each party shall pay its own costs.

Messrs Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

Messrs Sengweni Legal Practice, respondent’s legal practitioners