Adenium Transport Services (Pvt) Limited v Isadora Trading (Pvt) Limited and Gladercom Enterprises (Pvt) Limited

### Preamble
1
HH 594-25
HC 6786/23
---------


ADENIUM TRANSPORT SERVICES (PVT) LIMITED

versus

ISADORA TRADING (PVT) LIMITED

and

GLADERCOM ENTERPRISES (PVT) LIMITED

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 2 October 2025

Opposed Application

H T Mawema, for the applicant

T Pfigu, for the respondent

CHITAPI J:  The applicant, first and second respondents as described in the heading are registered limited liability companies in accordance with the laws of Zimbabwe.  The applicant is the second defendant in case number HC 3336/21 in which the first respondent is the plaintiff and the second respondent is the first defendant.  In case number HC 3336/21 this court per Chinamora J granted a default judgment on dated 5 July, 2023 in favour of the first respondent against the applicant herein for payment of the sums of US$24 26.00 and US$36520.00 and US$6000.00 or its equivalence in  local currency calculated at the prevailing inter bank rate.  The court also ordered payment of interest calculate at the prescribed.

The second respondent seeks a rescission of the default judgment aforesaid.  It filed case No HC 6786/23 seeking rescission of the default judgment.  The second respondent also filed an urgent application for stay of execution of the judgment whose rescission was sought.  The urgent application was filed under case No HC 6797/23.  At the hearing of the matter the parties consented to consolidate the urgent application with the rescission of judgment so that the matters are heard at the same time.  A temporary of execution was granted pending the determination of the consolidated applications.  In essence the effect of the consolidation was to accelerate the hearing of the rescission of judgment application thus rendering the hearing of the merits of the urgent application on the merits academic.  This is so because a failed rescission application means that the urgent application dies a natural death since the sought was to protect the rescission application.  On the other hand, id rescission is granted, then there ceases to be a court order on which execution may be levied.

I therefore, deal with the rescission of judgment but will pronounce on the fate of the urgent application as well.  The parties legal practitioners stood by their papers and heads of argument and did not make further submissions.

Main Case HC 3336/21

The background to the application and the dispute in the main matter case No HC 3336/21 was that the first respondent as plaintiff sued the applicant as second defendant and the second respondent herein as the first defendant for payment of the sums of money as granted in the judgment whose rescission is sought in case No HC 6986/23.  The summons alleged that the second respondent as freight agent was engaged by the first respondent to transport by freight and clear a consignment from China to Zimbabwe.  It was alleged that upon the arrival of the consignment in South Africa, the second respondent contracted the applicant to transport the consignment from South Africa to Zimbabwe.  The consignment did not however reach the Zimbabwe it having reportedly been subject of a hijack in South Africa.  The first respondent in the summons claimed the reimbursement and damages arising from the non delivery of the consignment.  In its claim, the first respondent apportioned joint and several liability for the claim upon the applicant and the second respondent as co defendants, one paying the other to be absolved.

The applicant and filed a plea in which it denied liability.  It denied that there was any privity of contract between it and the first respondent since the freight contract was concluded between the applicant and a South African company called Reg Freight International Freight.  The applicant also averred that in any event the consignment was hijacked which resulted in the applicant’s insurer CBZ Insurance paying to the applicant $ZWG 535500.00 for the loss.  The applicant in deposited the amount into the account of the second respondent.  The first respondent however, refused the tender of the amount.

The applicant further pleaded that the first respondent sued it in case No. HC 686/21 demanding payment of US$57160.40 but withdrew the summons. The applicant pleaded that the amount of ZWG 535 500.00 remained held in trust by the second respondents’ legal practitioners at and is at the disposal of the first respondent upon its providing banking details.  The applicant denied liability for the rest of the first respondents’ claims for loss of business on the basis that the first respondent refused to accept the insurance settlement, hence the acclaimed loss of business was not attributable to the applicant.

The second respondent also denied liability on various grounds set out in its plea.  Since the second respondent is not an applicant for rescission and still remains in court there is no need to interrogate its plea.  The court will determine the matter on the application filed by the applicant.

It is common cause that the main matter proceeded through all stages of filing pleadings up to the pre-trial conference stage.  On the date scheduled for the pre-trial conference on 5 July 2023.  Isadora also replicated to the plea of Adenium.  It pleaded that it did not join CBZ Insurance because it had no contractual relationship with that entity.  It further persisted that Adenium was hired by Gladercom and that quotations by Adenium were forwarded for payment by Isadora by Gladercom thus connecting Gladercom and Adenium.  It persisted that both Gladerson and Adenium were liable to Isadora for the lost consignment.

The matter was progressed to pre-trial conference stage.  It is common cause that Adenium filed all pre-trial conference documents and effected discovery.  A round table conference was held between the legal representatives of Isadora and Adenium on 14 July 2022 at the offices of Isadora’s legal practitioners Gladercom was not in attendance.  The round table minutes were filed on 22 September 2022.  A pre-trial conference before Manzunzu J was scheduled on 24 March 2023.  Adenium was not present.  Manzunzu J made an order that “No appearance for second defendant.  The parties to further engage with a view to strike a settlement.  The parties shall meet on 28 March 2023 at an agreed time and venue.  Matter postponed to 30 March 2023 at 10.00am.”

On 30 March 2023, the pre-trial conference was reconvened.  Manzunzu J refereed the matter to trial in relation to Isadora and Gladercom.  The details of the reference do not concern this judgment directly and comments thereon may impact on the court’s judgment at trial.  In respect of Adenium, the learned judge issued the following order;

“1.The second defendant was in default at the pre-trail conference on 24 March 2023 and 30 March 2023.

2. The plaintiff having applied for default judgment against the second defendant, the matter is referred to the unopposed roll.”

Subsequent to the above order, Isadora filed a court application for default judgment on 15 June 2023 against Adenium.  On 5 July 2023 Chinamora J granted the application aforesaid as per the order referred to herein above.

Isadora proceeded to enforce the default judgment by writ of execution issued on 29 August 2023.  The legal practitioners for Isadora filed a bond of indemnity which bear their signature with the date 31st July 2023.  On 18 July 2023 the Sheriff attached under notice of seizure and attachment and at 6A Justitia Road, Beitbridge, a scania horse track registration No ABQ5646 belonging to Adenium.  The notice aforesaid indicated that the attachment was pursuant to a warrant issued on 12 October 2023.  The removal date was endorsed as 17 October 2023.  From the record it is evident that the seizure and attachment could not have been done pursuant to a writ issued on 29 August 2023 since the attachment and seizure notice pre-dates the date of issue of the writ.  Equally, the seizure and attachment notice purports to have been made pursuant to a warrant issued on 12 October 2023.  Again, on the face of it, the seizure and attachment notice predated the date of the warrant of seizure.  No doubt the contradictory documents would need to be explained to put the paper trial and record straight.

Rescission of judgment case No. HC 6786/23

Adenium filed this application on 18 October 2021.  It alleged that it became aware of the default judgment granted in case No HC 3336/21 on 12 October 2023 when the order was served on it by the Sheriff together with a writ of execution and notice of seizure and removal.

It being common cause that default judgment was granted pursuant to the default by Adenium to attend a pre-trial conference.  Adenium explained that it was let down by its erstwhile legal practitioners Masawi and Partners.  Not only did the legal practitioners not inform Adenium of the pre-trial conference, they did not themselves appear before the judge or renounce agency according to the record.  Adenium averred that it did not attend the pre-trial conference because the legal practitioners did not inform it of the set down.

Isadora averred that Adenium was not telling the truth that it only became aware of the default judgment on 12 October 2023.  It averred as follows in para 23 of the opposing affidavit:

“AD PARA NATURE OF THE APPLICATION 4-6

I note the contents of these paragraphs.  I confirm that the applicant is not telling the truth that he became aware of the order on 12 October 2023.  The truth of the matter is that the applicant is now trying to run away from his responsibilities by using a different lawyer who was not present during the proceedings.  The applicants’ legal practitioners were aware of the order since they failed to show up on the pre-trail meeting before Honourable Justice Manzunzu.  This is why the applicant has not attached any single threat of evidence from his erstwhile legal practitioners.”

Isadora in the opposing affidavit averred that the Adenium representative engaged in the round table meeting on loud speaker.  It also averred that at the pre-trial conference before Manzunzu J both the legal practitioners for and Adenium were in default on the two occasions.  There is no indication given on whether and how after the postponement granted by the judge Adenium and its legal practitioners were made aware of the postponement date of 30 March 2023.

In relation to the bona fide defence of Adenium, it averred that Isadora did not join the insurance company to the suit.  It averred that damages for loss of business were unquantified and that a trial was required to deal with the issue.  It also averred that there were material disputes of fact in the matter which required ventilation at trial.  Adenium averred that any prejudice to be suffered by Isadora could be cured by a costs order.

Isadora averred that the deponent to the founding affidavit had no authority by Adenium to represent the company.  Adenium filed its resolution appointing the deponent to the opposing affidavit to represent it.  That put paid to the issue of authority.

It seems to me that Adenium has established that it was not in wilful default.  It is common cause that this litigation proceeded all the way to round table conference at which the parties agreed that there were issues for trial and that the matter be escalated to a pre-trial conference before the judge.  Even in respect of Glodercom which attended the pre-trial conference, the learned judge noted that triable issues arose from the pleadings.

In dealing with whether or not there is a bona fide defence, to the claim, the court also considers the pleadings and in particular the particular of the claim as set out in the declaration.  As already noted Isadora did not plead any ground of liability or its connection with Adenium.  It is not clear at all whether Isadora sued Adenium in delict, in contract or other cognizable ground at law.  In the replication Isadora pleaded that Adenium did not respond to a letter of demand and that resulted in Isador issuing summons against Adenium.

It is in any event common cause that the goods were stolen in a hijack in South African which was reported to the police.  It is also common cause that a claim was made by Adenium to its insurer CBZ Insurance.  Counsel For Isadora aptly quoted the case of Cotton Marketing Board v National Railways of Zimbabwe 1988(1) ZLR 304 wherein the head note inter alia reads;

“in any action against a carrier for loss of or damage to goods, the owner of the goods need not prove how the goods were damaged, lost or destroyed.  The onus is in the carrier to prove that the loss was due to vis major or to damnum fatale, to inherent vice in the goods or to the negligence of the owner of the goods or the negligence of the owner of the goods.  All that he requires to shake off liability is to prove that the occurrence resulting in the event was unforeseen, unexpected and irrestible and that humans could not have guarded against it.”

When one considers the facts averred by Adenium that the consignment was hijacked and the matter reported to the police, it would in my view be illogical to hold that Adenium cannot mount a bona fide defence.  Bearing in mind that the specifics of the basis of the liability of Adenium are not pleaded by Isadora, it is in my view clear that Adenium has a bona fide defence with good prospects of success.

Therefore, to sum it up, the court was satisfied that the default by Adenium to attend the pre-trial conference was neither wilful nor deliberate.  The allegation that Adenium was not notified by its legal practitioners was more than probable given the fact that Adenium had all along been actively involved unvalued in defending itself.  There was nothing said or which can be implied from the facts to infer that Adenium suddenly lost its zeal to defend the case.

The submission by Isadora that the legal practitioners ought to have filed a supporting affidavit to support the point that they did not notify Adenium of the PTC date is not a rule of thumb.  The circumstances of each case are considered.  The legal practitioners in issue were no longer representing Adenium.  They were themselves in default.  It is illogical to think that they connived with Adenium to default.  The logical explanation is that Adenium was not notified of the hearing.  The requirements for rescission of judgment as set out in the case Stockil v Griffiths 1992(1) ZLR 172 SC were met.  These are:

The reasonableness of the applicants explanation for the default.

The bona fides of the application to rescind the judgment.

The bona fides of the application which carries some prospects of success.

The factors taken cumulatively have been established by the Adenium.

I therefore, grant the application.  As regards the issue of costs they will be in the main case No. HC 3336/21 since the litigation is ongoing.

Case No 6797/23.  This is the urgent application which was intended to arrest execution of the judgment now rescinded pending the determination of the rescission application.  The application must fall away since the writ of execution has no judgment to support it.  I also need to record that there was irregularity apparent or ex facie the writ of execution issued by the court and the execution itself because execution appears to have taken place before the writ on which it stands was issued.  The writ of execution is to be set aside.

Accordingly, the application are determined as follows:

IT IS ORDERED THAT

The default judgment granted by this court dated 5 July 2023 in case No HC 3336/21 is rescinded.

The second defendant therein is granted leave to continue its defence of the case.

The Registrar shall relist the matter case No HC 3336/21 for pre-trial conference in relation to the plaintiff and second defendants.

In relation to case No HC 6797/23, the writ of execution in case No HC 3336/21 on which execution the subject of case No HC 6797/23 was levied is set aside and no further execution shall be levied in case No HC 3336/21 until its finalisation or unless the court orders otherwise.

The costs for both case No HCH 6786/23 and HCH 6797/23 shall be cause in the cause in case No HC 336/21.

Chitapi J:………………………..

Chiturumam Law Chamber, applicant’s legal practitioners

T Pfigu Attorneys, first respondent’s legal practitioners