Hui Sheng v Stonler Systems (Private) Limited

### Preamble
1
HH 496-13
HC 13997/12
Ref No. HC 9578/12
HUI SHENG
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Opposed Application

S Simango, for applicant
A Demo, for respondent

TSANGA J: This is an application for rescission of a judgement in matter no. HC 13997/12 granted on 16 January 2013 by this court. The dispute grew out of a lease agreement under which certain disputed amounts for rates, water and electricity and arrear rentals remained owing by the applicant as lessee, to the respondent, Stonler Systems as lessor. The respondent issued summons for the recovery of monies owing and for the eviction of the applicant from the premises where he was running a restaurant. The lessee having failed to enter an appearance to defend, the respondent as lessor obtained a default judgment against the applicant. The order granted is in the following terms:

It is ordered that:

1. The defendant and all those claiming occupation through the defendant, be and are hereby ordered to vacate No. 21 Van Praagh Avenue, Milton Park, Harare.

2. The defendant is hereby ordered to pay to the plaintiff:

   a. The sum of $31 914-45 with interest at the prescribed rate of interest, calculated from the 17th day of September to date of payment, both dates inclusive; and b. Holding over damages at the rate of $2000-00 per month from the 1st day of January, 2013 to date of vacating the premises, with interest thereon, at the prescribed rate of interest, calculated from the 1st day of January 2013, to date of payment, both dates inclusive.


3. The defendant be and is hereby ordered to pay the plaintiff’s costs of suit on legal practitioner client scale.

The applicant seeks rescission of this judgment on the grounds that he only got to know of the judgment on 22 February, purely fortuitously through discussions with his lawyers concerning a related matter involving the same property and respondent (case No. HC 9575/12). According to the applicant, the rescission is thus also pertinent to this pending matter. The essence of this other pending dispute (case No. HC 9575/12) is that the applicant, who had a ten year lease, exercised a right of first refusal to purchase the leased property in question, otherwise known as No. 21 Van Praagh Avenue, when it was put up for sale. He alleges that after diligently carrying out a search at the Deeds office before payment, and discovered that the property belonged to the late Abraham Zaranyika a deceased estate. He unearthed that according to the deceased’s will the property in fact has a fidei commissum placed over it. It can only be transferred to the donees upon the fulfilment of certain conditions. In this case the property was left to the widow and is to be transferred to the children upon her remarriage or her death. Furthermore, the executor, Mr Chihambakwe is said to have dissociated himself from the lease which was entered into by the deceased’s son without the executor’s permission, one Harrison Zaranyika, who represented the respondent. He however deposed to an affidavit that the property can be sold with the consent of the widow. It is this other matter that the applicant was discussing with his lawyers when it came to light that a default judgment had been issued against him which among other things evicts him from the property in question.

While the pending case has an added urgency for the applicant, my mandate is in essence to assess the prospects of success for rescission in the case that is before me.

The applicant states that the reason why he did not enter an appearance to defend is because he never received the summons. The proof of service shows that the summons were served on one Nickson Jackson who was described as caretaker at the defendant’s place of business. The respondent denied knowing any Nickson Jackson or having been given the summons by him for that matter.

The application is opposed. Mr Harrison Zaranyika, in his capacity as managing Director of the respondent, states that a lease agreement was indeed entered into with the applicant sometime in 2009. He says that it was an express term of the lease that the applicant was to pay rentals at $2000 a month, pay electricity and pay municipal rates. He also says that on 17
 September 2012 the applicant was given an opportunity to rectify his breaches but neglected to do so. The summons in question were issued on 6 December 2012. As a result of the applicant not having entered an appearance to defend, default judgement was sought against him and was granted on 16 January. On 18 February a writ of ejectment and execution was issued against the applicant. On March 1 according to the respondent, the property was in fact sold to the Kabelo Family Trust, said to have since taken possession of the same.

The respondent also avers that four days after the default judgment was issued a meeting took place between himself, the representatives of Kabelo family Trust and the respondent’s representative. It is his assertion that at this meeting the applicant was informed of the default judgement against him, the sale of the property and of his eviction. It is said that the applicant was apologetic and promised to settle arrears by the 22 January but never did.

The essence of the respondent’s averments is that the applicant knew as way back as January 22 that a default judgement had been issued against him. There is also a dispute regarding the lease with allegations of forgery against the applicant. He is further purported to have unlawfully scanned the respondent’s signature to certain documents.

Order 9, Rule 63 of the High Court of Rules, 1971 provides as follows on the setting aside of a default judgment:

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he had knowledge of the judgement, for the judgment to be set aside.

(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.

(3) Unless the applicant for the setting aside of a judgment in terms of this rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.

Observing litigation procedures and time frames is key to eliminating delays in the administration of justice. It is in this light that the existence of the procedure for obtaining a default judgment against those who choose to ignore formalities must be understood. The time period stipulated in Rule 63 for seeking rescission of judgment is also there for a reason. An application to set aside a default judgment within the given time of one month may be a general indicator that the default was not wilful. Timeous action also limits the prejudice that may be suffered by the other party who will have obtained a judgment. Furthermore, acting with speed can also impact on the plausibility of the explanation given for the default and in showing that the defaulter acted in good faith.

The respondent states that the application does not meet the requisites for rescission of a default. The factors which a court will take into account in determining whether an application for rescission has discharged the onus of proving “good and sufficient cause “ as required to be shown by r 63 of the Rules are as follows:

(1) The reasonableness of applicants explanation for the default
(2) The bona fides of the application to rescind the judgment; and
(3) The bona fides of the defence on the merits of the case which carries some prospects of success

These principles have been dealt with in a number of cases that have come before our courts. See Songore v Olivine Industries (Pvt) (Ltd) 1988 (2) ZLR 210 (S); Bishi v Secretary for Education 1989 (2) ZLR 240 (H) Ndebele v Ncube 1992 (1) ZLR 288 (S); Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S). Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249; Sibanda v Ntini 2002 (1) ZLR 264 (S) James Kambadza v Anna Mtetwa HH 15/11; Roland and Another v Donnell 1986 (2) ZLR 216 (S) at 226 E-H; Hutchison & Another v Logan 2001 (2) ZLR 1 (h)

The applicant’s explanation for his default is that he did not receive the summons that were served. He also states in his papers that he does not know the said Nickson Jackson who purportedly received the summons on his behalf. He argues that he acted swiftly once he became aware of the judgment on 22 February and that he lodged his application within a week thereafter on 1 March.

Regarding timing of knowledge of the default judgment, I would agree with the applicant that the lawyers who were present in motion court on the day the judgment was handed down were strictly speaking under no obligation to inform him since there were not there on his business. Mr Simango referred the court to the case of William’s Estate v Molensehoot & Sehep (Pty) Ltd 1939 CPD 360 to bolster his argument that the lawyers were not acting a negotiorum gestor. His point was that unlike the negotiorum gestor who acts for no remuneration, legal practitioners act on instructions and are entitled to charge for their work.


Being that as it may, it nonetheless seems amiss that if there were representing him in another matter concerning the very same property, that this judgment would have remained peripheral to their interests.

The credibility of the applicant’s explanation for his default hinged largely on his claim that he did not know any Nickson Jackson and that he never received the summons from him. The said Nickson Jackson, however perhaps unexpectedly so, deposed to an affidavit confirming his employment by the respondent at the relevant time. He also testified to giving him the summons. He attached a pay slip to his affidavit. However it referred to him as Nickson Dickson. It was conceded by both counsel that it was probable that due to English language deficiencies on the part of the applicant, the said Nickson’s surname may have been inadvertently captured as Dickson.

Mr Simango for applicant shifted emphasis from an initial denial of knowledge of Nickson Jackson to an argument that he did not give applicant the summons. In assessing whether an explanation is reasonable and acceptable, the remarks made by MacNALLY JA in the case of Songore v Olivine Industries above at p 211 are apt when he says:

“A defendant who admits that he was negligent in his tardiness may nonetheless be found to merit rescission if he shows bona fides. But one who puts forward a “reason” which is an insult to the intelligence of the court may have more difficulty satisfying his court of his good faith”.

The applicant was not being candid with the court when he denied any knowledge whatsoever of any person named Nickson. It was in view of the affidavits filed by Nickson Jackson and another employee named Marlon Mutoko, both testifying to having been in the employ of the applicant, that he saw fit to change tack. I find the applicant’s claim that the summons were not given to him most unlikely under the circumstances when the said Nickson confirms that he gave them to him.

The respondent averred that a meeting took place four days after the default judgment, which the applicant attended together with the respondent and the purchaser of the property. The applicant did not deny that the meeting took place but rejected that the issue of the default judgment was brought to his attention. Again, this seems most unlikely given that the purchaser of the property was said to have been part of the meeting. The issue of vacant possession would have been material to the buyer. It is my view that the applicant must have had knowledge of the default judgement at this point as averred by the respondent.


On the *bona fides* of the case and its chances of success, the applicant maintained that he had in fact settled the amount owing through an advance payment in August. His proof of payment is a written statement by himself dated 11/08/12 to the effect that he had paid the amount paid of $13600. This is broken down as $6000-00 being for advance rentals for the months of October to December 2012. The remaining $7 600-00 is said to be for clearing the ZESA and water bill, confirming that he was in arrears. This statement is purportedly signed by the respondent. It is this signature that the respondent alleges was scanned and unlawfully affixed to this document. Since only the photocopy of the document was included in the documents, it is not possible for this court to make any conclusions about this allegation. Suffice it to say the proof of payment is far from satisfactory.

The property in question from which the applicant has been evicted has since been sold. This is not disputed. This reality further reduces the chances of the applicant’s success in the main matter.

In the final analysis, putting all circumstances together that inform whether rescission should be granted, I find that the applicant has failed to satisfy this court fully that he did not receive the summons. He has also failed to show that he had no knowledge of the default judgment when it was passed in January. His application for rescission is therefore out of time and is not condoned.

The respondent asked for dismissal of the matter with costs on a higher scale. I do think that these have been justified as the application was not brought in good faith.

Accordingly application is dismissed with costs on a legal practitioner/client scale.

*Nyikadzino, Simango & Associates*, applicant’s legal practitioners
*Chihambakwe Mutizwa and Partners*, respondent’s legal practitioners
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