Dr Millicent Mombeshora v Longpark Services (Pvt) Ltd t/a Seasons Supermarket and The Sheriff for Zimbabwe

### Preamble
1
HH 481-13
HC 10479/13
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DR MILLICENT MOMBESHORA

versus

LONGPARK SERVICES (PVT) LTD t/a SEASONS SUPERMARKET

and

THE SHERIFF FOR ZIMBABWE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 11 December 2013 and 18 December 2013

Urgent Chamber Application

J. Samukange, for the applicant

A. Mugambiwa, for the 1st respondent

MATHONSI J: In this matter the applicant is seeking a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

Pending the determination of the application for rescission of judgment under Case No HC 10469/13, applicant is granted the following relief:

That the first and second respondents be and are hereby interdicted from removing applicant’s goods as listed in Annexure A.

First respondent pays costs of suit on attorney and client scale.

INTERIM RELIEF SOUGHT (sic)

That the respondents are interdicted from removing the attached goods as listed on Annexure A or any other goods belonging to the applicant pending the final determination of this case.

That this provisional order be served by the applicant’s legal practitioners.”

The applicant was sued by the first respondent in HC 872/10 for payment of

US$28 451-53 in respect of goods sold and delivered by the first respondent.  The applicant contested the claim stating in her plea that she did enter into an agreement of sale of goods but not with the first respondent.  She aver red in para 2(c) and (d) that:-

“(c)	On delivery of the goods they were put on shelves for sale by the first defendant’s (herself) employees and some sold by her employees without her knowledge and before agreement was reached on price.

(d)	The parties failed to agree on the price and the first defendant caused the  removal of the goods from the shelves and offered to pay for goods sold.”

In her summary of evidence, the applicant also tendered payment for the goods that had been sold and to return those that had not been sold.  It would appear that she did neither.

The matter was set down for trial before me on 29 October 2013 and from the record in that matter the notice of set down was received by T.H. Chitapi & Associates, the applicant’s then legal practitioners on 9 October 2013.  When it was called at 9am on 29 October 2013, the applicant was represented by Mr V. Mkachari of T.H Chitapi & Associates who consented to the matter being stood down to 2.15pm at the request of the first respondent’s legal practitioner and said nothing about the applicant being unavailable.  At 2.15pm Mr Mkachare handed in a notice of renunciation of agency stating that he had not been able to get hold of the applicant.

At the instance of the first respondent, judgment was then entered in default.  It is that judgment which the applicant seeks to have rescinded in HC 10469/13, an application made in terms of r 449 of the High Court of Zimbabwe Rules, 1971.  She has then filed this urgent application seeking interim relief, aforesaid.  The applicant has stated in her founding affidavit that she does not owe the first respondent the amount claimed or any amount, a sharp contrast from what she pleaded in the main action.

The applicant goes on to say that she confronted her former legal practitioners T.H. Chitapi & Associates after receiving the notice of seizure from the sheriff and:

“They advised me that they did not go to court on 28 October 2013 (the correct date is 29 October 2013) because on that very day they had renounced agency.  I asked why they had not advised me that they had renounced agency.  I was handed my file and observed that indeed on 29 October 2013, T.H. Chitapi & Associates had renounced agency.”

She says that she was not aware that the matter had been set down for 29 October 2013 and was not aware that her legal practitioners had renounced agency.

In order to succeed in an application of this nature the applicant must show that her application for rescission of judgment has prospects of success not merely that she has made such an application.  It is surprising that the application has been made in terms of r 449 and not in terms of r 63 of the High Court Rules.  Rule 449 provides:

“(1)	The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –

(a)	that was erroneously sought or erroneously granted in the absence of any party affected thereby;

(b)	in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)	that was granted as the result of a mistake common to the parties.”

In her application for rescission of judgment in terms of r 449, the applicant states that the default judgment entered on 29 October 2013 was granted as a result of a mistake common to the parties.  She locates such mistake in the fact that counsel applied for default judgment because he was unaware that her legal practitioners had renounced agency and that the judge was unaware that she did not know the court date.

I am unable to comprehend where this is coming from.  I have already set out what transpired on 29 October 2013 when I granted default judgment.  The applicant was not in attendance when her legal practitioner was there.  He stated in the afternoon of that day that he had been forced to renounce agency because he had not been able to get hold of the applicant.  He did not say that the applicant was unaware of the court date.  It was proper to assume that, aware of the court date, the applicant had elected to stay away.  It was also proper to enter default judgment under those circumstances.  There was no mistake on the part of counsel who applied for judgment or on the part of the court.

Therefore in its present form, the application in HC 104691/13 has very dim prospects of success.  Even if the rescission of judgment application had been made in terms of r 63, the applicants would still have very dull prospects of success.  In such an application, a party must show good and sufficient cause for rescission of the judgment granted in default.

In the exercise of its wide discretion whether to grant an indulgence to an applicant for rescission of judgment, the court has regards to essentially 3 factors, namely the reasonableness of the explanation for default, the bona fides of the application, and the bona fides of the defence on the merits which carries some prospects of success:  Dewaras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998(1) ZLR 368; Stockhill v Griffiths 1992(1) ZLR 172(S); Croco Properties (Pvt) Ltd v Swift Debt Collectors (Pvt) Ltd t/a Ruby Auctions HH 220/13.

All these factors must be considered in conjunction with each other and with the application as a whole and an unsatisfactory explanation for one may be strengthened by a very strong defence on the merits; Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S) 493C

In this case, the explanation given for the applicant’s default is “a dog’s breakfast” and exhibits serious confusion premised as it is on a notice of renunciation of agency which is irrelevant.  The defence proffered, namely that she does not owe anything, is at variance with her plea where she admits receiving the goods and selling them and even offers to pay.  When all this is taken into account the applicant’s prospects, pale.

In the result, the application is dismissed with costs.

Venturas and Samukange, applicant’s legal practitioners

Wintertons, 1st respondent’s legal practitioners