Tatenda Nyengera v Newton Mutaka and The Sheriff of Zimbabwe

### Preamble
1
HB 160/19
HC 2146/19
---------


TATENDA NYENGERA

Versus

NEWTON MUTYAKA

And

THE SHERIFF OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 30 SEPTEMBER & 24 OCTOBER 2019

Urgent Chamber Application

G. Sengweni for the applicant

T. Mabika for 1st respondent

MOYO J:	In this matter the applicant filed an urgent application seeking the following interim relief:

The 1st and 2nd respondents be and are hereby ordered to suspend the execution in any way, of the writ of execution issued under cover of case number HC 3275/17.

In the event that 2nd respondent has attached and removed applicant’s property, the 2nd respondent is hereby ordered to release and restore the property to the applicant.

The background of the matter is that the applicant was sued by the 1st respondent in this court and a default judgment was granted against him.  It is the execution of the judgment that was granted against him that applicant now seeks to stay.  The applicant avers that he was not aware that a default judgment had been entered against him as he had lawyers representing him and he was not advised of the trial date.  He further avers that his erstwhile legal practitioners did not attend court on his behalf hence the default judgment.  Applicant further avers that he is resident in the Republic of South Africa,

The 1st respondent has challenged the applicant’s failure to attend court contending the applicant was in willful default since his erstwhile legal practitioners were duly served for the trial date but they did not attend.  1st respondent contends that applicant has failed to proffer a reasonable explanation for his default and that since he is blaming his former legal practitioners he should have at least attached the lawyer’s affidavit per the norm.  1st Respondent contends that failure to attach an affidavit from his former legal practitioners is fatal to the application.

The applicant has incorporated in this application by reference the averments he made in the application for rescission of judgment.  In that application at paragraph 13 of the founding affidavit, he explains that he tried in vain to solicit an explanation as both lawyers, the one who represented him and the one who acted as a correspondent had left their respective law firms.  1st respondent contends that such an explanation is not enough, there should have been written correspondence to this effect or an affidavit by some other lawyer in the respective firms. The problem is, can this court say where a party cannot locate the relevant legal practitioner who may not be available for one reason or another and where a matter has to be attended to as a matter of urgency, the applicant’s approach is fatally defective regardless of his explanation on the non availability of the legal practitioner?  I believe such a conclusion will not be in the interests of justice.  I believe where averments are made, explaining why the lawyer’s affidavit could be not be secured, until those averments are proven to be false, an application should be entertained on an urgent platform and appropriate relief granted where a case has been made for such relief, pending the rescission application wherein the court hearing that application will exhaustively probe and assess the applicant’s failure to file the lawyer’s affidavit.  At this juncture, and on this urgent platform I hold the view that it suffices that some explanation has been given as to why the lawyer’s affidavit cannot be secured.  In any event, the courts will not dismiss lightly any explanation given by a party who has defaulted for the simple reason that at the end of the day, the court inclines itself towards hearing the real dispute between the parties where no flagrant breach of the rules of court is shown.  It is for these reasons that I will not find that applicant’s averments with regard to his default and his explanation for failing to attach the lawyer’s affidavit in the main application can be dismissed at this point so as to deny him audience on this platform.  The court, in my view, should lean towards hearing litigants on the merits, it is only where there is a glaring disregard for the rules of this court and where there is absolute failure to proffer acceptable reasons for one’s inaction that a litigant’s case should be summarily dismissed.  I hold the view that where an explanation has been given and such an explanation is about an occurrence that could, possibly have happened in the normal course of everyday life, such an explanation cannot in my view, in the absence of evidence to the contrary be lightly dismissed.

On the merits, the facts of this matter are that the dispute between the parties concerns a verbal agreement as espoused in the plaintiff’s summons and declaration where it is alleged that the parties sold a truck to each and subsequently the one who purchased the truck lent it to the seller.  Whilst one party alleges that such an agreement existed, the other alleges that it is not true.  One party alleges a lease agreement and the other refutes that.  One party alleges repairs for damages to the alleged truck and the other party disputes being responsible for such repairs.   I hold the view that there are reasonable prospects of success on the merits of the application for rescission of judgment.  Viva voce evidence will have to be called by either party, for the court hearing the dispute to discern what really transpired between these 2 parties.  This could be a matter that could not therefore be justly closed without the other party being heard to ascertain what exactly these parties did.  Did they enter into a contract?  If so, what where the terms and conditions of such a contract?  Was the contract breached?  By who and how?  All these issues call for both parties to be heard for the interests of justice to be served.  The interests of justice are served when the real dispute between the parties is probed and resolved, not when one party is unfairly shut out from proceedings wherein if he had an input, a totally different conclusion would have been made.  I hold that the balance of convenience favours the granting of the interdict as sought in this matter.

It is for these reasons that I grant the provisional order in terms of the draft.

Sengweni Legal Practitioners, applicant’s legal practitioners

Mugiya & Macharaga Law Chambers 1st respondent’s legal practitioners