Melody Chinouriri v Mohammed Rezwan Khan and Provincial Mining Director Mashonaland Central and Provincial Mining Surveyor Mashonaland Central

### Preamble
1
HH 682-22
HC 7424/20
---------


MELODY CHINOURIRI

and

MOHAMMED REZWAN KHAN

and

PROVINCIAL MINING DIRECTOR

MASHONALAND CENTRAL

and

PROVINCIAL MINING SURVEYOR

MASHONALND CENTRAL

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 14 October 2021 and 5 October 2022

Opposed Application

H Muza, for the applicant

T L Mupanga, for the respondent

CHITAPI J: By default judgment granted by Dube J (as she then was) on 2 December 2020 in favour of the first respondent as applicant in case No. HC 5932/20 against the applicant herein with the second and third respondents being the same as in this application, the applicant and her agents were interdicted from carrying out mining activities at a mining claim called Xmas 159 situated at Smithfield Farm.  The location of the claim is Mazowe area in Mashonaland Central Province.  The learned judge also granted ancillary relief.  The applicant filed this application for an order of rescission of the order of Dube J as aforesaid.  The first respondent opposed the application.

The background to the application is to be understood by considering the papers in case No. HC 5932/20.  The first respondent in obtaining default judgement averred in the founding affidavit that he was granted on 14 September, 2007 a certificate of registration No. 34079 over one gold block called Xmas 159.  He stated that the he electrified the claim area.  The applicant averred that the claim was extended by approval of the mining commissioner in 2013 by a further 10 hectares which the first respondent contends that he also fenced off.  The first respondent averred that the applicant who had come in as an investor in 2020 subsequently laid claim to ownership of the mining claims which the first respondent claims to belong to him.  The applicant claimed to have acquired a special grant in her name to the disputed mining area.  The first respondent stated that he checked with the Ministry of Mines offices to confirm whether or not the applicant had acquired any mining rights on the area covered by the first respondent’s certificate of title.  The first respondent averred that the true position with regard to the applicants’ interest in the claims was that the applicant had only applied for a special grant over the area covered by the first respondent’s claim but that the application for the special grant had not yet been approved.  The first respondent averred that the applicant had commenced mining operations on 14 September, 2020 and had refused to stop her mining activities despite the fact that the first respondent had engaged her on 30 September, 2020 during which engagement the applicant then laid claim to the mining claims arguing that the claims were registered in her name.

It was on the basis of the above summarized facts that  Dube J granted an interdict suffering the applicant to stop her mining operations as already stated.  The application HC 5932/20 was purportedly served upon the applicant on 12 November, 2020.  The address for service or attempt was given as “Xmas 159 Smithfield, Mazowe.”  The case number on the return of service No. 100735B was endorsed as case number HC 6483/20.  This case number is different from the case number allocated to the case which was HC 5932/20.  In describing the manner of service, the following was inscribed under remarks:

“A copy of the court application served by affixing to a red generator after two male adults refused service citing that the respondent does not allow them to receive anything on her behalf at 1546 hours.”

There can be no doubt that Dube J did not notice that the return of service pertained to a different case record.  Had the learned judge been made aware of the anomaly she would not in all probability have granted the default judgment without having the anomaly addressed and a determination made on whether or not the return of service was valid.

In the application before me, the applicant prays for the recession of the default judgment which I have related to above.  The court has power to rescind a default judgment granted by it.  The power to rescind a default judgment is founded on the common law on the grounds of fraud or justus error or the rules of court.  In this application, the rescission of judgment is made in terms of the rules of court.  The applicant relied upon r 63 of the High Court Rules, 1971 which rules were in force when this application was filed on 14 December, 2020.  The 1971 rules have since been repealed and replaced by the High Court Rules Statutory Instrument 202/2021 which came into force on 23 July, 2021.  The 2021 rules provided in the savings rule in r 109 that:

“Provided anything validly commenced or done in terms of any provision of the repealed rules prior to the coming with force of these rules shall be deemed to have been validly commenced or done as the case may be, in accordance with the equivalent provision of these rules.”

The equivalent provision of the old r 63 under the current rules is r 27.  It provides as follows:-

“Court may set aside judgment given in default

27.(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 has had knowledge of the judgment for the judgment to be set aside, and thereafter the rules of court relating to the filing of opposition, heads of argument and the set down of opposed matters, if opposed, shall apply.

(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 the action, on such terms as to costs and otherwise as the court considers just.

From the above rule, the court has a discretion to rescind its default judgment upon the applicant establishing “a good and sufficient cause” to rescind the judgment.  In the case of Thokozile Zinondo v CAFCA Limited SC 64/17, Gwaunza JA (as she then was) stated on p 3of the cyclostyled judgment:

“In an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order.  In Makoni v CBZ Bank Limited HH 357/16 Chitakunye J quoted the case of Stockil v Greffeths 1992(1) ZLR 172(s) at 173D-F wherein Gubbay CJ aptly noted that:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by r 63 of the High Court of Zimbabwe Rules, 1971 are well established.

They have been discussed and applied in many decided cases in this country. See for instance Barclays Bank of Zimbabwe Limited v CC International (Pvt) Ltd SC 16/86 (not reported).  Roland and Another v McDonald 1986(2) ZLR 216(s) at 226 E-H; Sougere v Olivine Industries (Pvt) Ltd 1988(2) ZLR 10(s) at 211 C-F.  They are-

the reasonableness of the applicants explanation for the default; and

the bona fides of the application to rescind the judgment; and

the bona fides of the defence on the merits of the case which carries some prospect of success.  These factors are considered not only individually but in conjunction with one another and with the application as whole.”

From this authority, it is clear that the test of a good and sufficient cause involves the establishment of the following factors:

explanation for the default must be reasonable

the bona fides of the application to rescind the judgment

the bona fides of the defence on the merits of the case, and

prospects of success

The determination of whether or not to rescind the default judgment is a matter that is in the discretion of the court.  The discretion of the court must be exercised judiciously after a careful consideration of all the relevant facts and circumstances of the case.

The Courts’ approach to rescission of default judgment is much the same in a comparable jurisdiction being South Africa.  The approach is that the court will not for example assist a defendant whose default was wilful or where it is due to gross negligence on his or her part.  In the case of Chetty v Law Society Transvaal 1985(2) SA 756(A) at p 765 A-E, the court per Miller J considered the expression  “sufficient cause” or good cause and stated as follows-

“……these concepts defy precise or comprehensive definition, for many and various factors require to be considered.”

The learned judge stated that the elements of “sufficient cause” for rescission of a judgment by default are:-

“(i)	that the party seeking relief must present a reasonable and acceptable explanation 			for his default; and

(ii)	that on the merits such party has a bona fide defence which, prima facie, carries 				some prospects of success.

It is not sufficient if only one of these two requirements is met; for obvious reasons a party 	showing no prospects of success on the merits will fail in an application for rescission of a default 	judgment against him, no matter how reasonable and convincing 	the explanation of his default.

An orderly judicial process would be negated if, on the other hand a party who could offer no 	explanation for his default other than his disclaim of the rules was nevertheless permitted to 	have a judgement against him rescinded on the ground that he had reasonable prospects of 	success on the merits.”

The above approach was applied by Dube J (as she then was) in Chiweza & Anor v Mangwana & Ors HH 186/17.  Patel ja (as then he was) approved the approach in the case Adrean Paul Hoyland Read v John Stewart Mathews Gardiner & Anor SC 70/2019 albeit the cases dealt with condonation for non-compliance with the rules. The rules and principles applicable are largely the same.  Therefore whilst no individual factor should be considered as determinant on its own, where a factor to be considered like a total absence of prospects of success is established, then upon a consideration of other factors cumulatively, the lack of prospects will hover above the others and still eclipse them.  See Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 3878 at 387F where Chinhengo J stated that whilst each element of the test of good and sufficient cause maybe decisive on its own, it nonetheless must be considered together with other relevant elements and a balanced decision made.

Ultimately however, the question to be answered is whether or not the interests of justice will in any given case where the rescission of the default judgment is sought will be served by granting or refusing the rescission, all circumstances relevant to the determination of the issue being taken into account.

In casu, the applicant averred that she got knowledge of the default judgment on 7 December 2020 and filed this application on 14 December 2020.  The application was timeously filed within 30 days of the granting of the judgment sought to be rescinded as the rules provide, the judgment order having been granted on 2 December 2020.

In relation to the explanation for default, the applicant averred that she only became aware of the judgment after receiving a whatsapp message from one Tafadzwa Zhandu (TF) who introduced himself as the legal practitioner and business partner of the first respondent on 7 December 2020.  She attached an extract of the whatsapp messages to which was attached the copy of the court order granted in default.  The whatsapp messages which followed were the following message:

“TF:Dear madam.  I have sent you above our court order.  Kindly attend to 					remove all your people on the ground by close of business today, forcing 				(sic) which we shall arrange to forcibly evict your people.

Applicant:We are not on your place according to co-ordinates.  We are not on Xmas 				159.

TF:We will do it the easy way or the hard way, it’s your choice.

Applicant:Anyway I have read your court order and it says you have been granted because I defaulted so you lied to the court that you served me.  I am sorry dear you are abusing court process because you are a lawyer.  When I communicated with you some days ago why didn’t you mention that you had served me. I have not seen your court documents that’s why the syndicate did not respond.

TF:How can you respond when you don’t have a licence.  You have absolutely no grounds to respond.  Anyways I don’t have anything further to say to you.  I will be on the ground you can talk to me directly.

Applicant:You assumed that I had no grounds to respond hence you didn’t bother …….”

The whatsapp messages as quoted were not denied by the first respondent.  What clearly emerges upon their reading is that the applicant protested that she did not see the court process, otherwise she would have defended it.  The applicant did not take time to file the rescission application after having knowledge of the default judgment.  She did so a week after she had been sent a copy of the court order to be rescinded after she had received a copy of it via whatsapp.  The applicant protested that she was not served with the application and hence, she did not defend the case.  The applicant also averred that Xmas 159 where the service was allegedly effected was the first respondent’s claim.

The first respondent averred that proper service was effected because the Sherriff’s return of service indicated that the applicant had instructed her agents not to accept service of any process.  The return of service however did not indicate that the unnamed male adults who refused to accept service of the court application were the applicants’ agents nor that they were responsible persons connected to the applicant.  Service was effected by affixing to a red generator whose ownership or control was not recorded let alone the generator size, whether or not it was portable or fixed to any conspicuous place.  In my view, where the defendant who has purportedly been served in the manner of the Sherriff just leaving or affixing a process at some “conspicuous” place at the place of residence or business denies that he or she saw the process, the court must consider the circumstances of the service and probabilities of the defendant having seen the process.

Rule 40 of the 1971 High Court rules then in use provided for service of process where the person to be served prevents service or cannot be found.  It applied where the person to be served kept his residence, place of business or employment address for service or registered office closed thus preventing service from being effected thus preventing service from being effected.  It also applied where the person serving the process “after diligent search” at the afore-mentioned places fails to find the person concerned or a responsible person thereat.  In such circumstances the person serving the process could serve it by leaving “……a copy of the process in a letter box at or offered to or near the outer or principal door of, or in some conspicuous place position at the residence, place of business or employment address for service or office as the case maybe.”

Rule 40 aforesaid was carried over in the current rules as r 15(13(i).  The rule is an exception to the usual modes of service whereby process is delivered upon a named or identified responsible person.  It is a rule designed to assist the applicant or plaintiff to serve an illusive or unco- operative respondent or defendant.  The provisions of the rule should be complied with strictly because the court will be moved to accept and deem that proper service has been effected where the process has not been delivered upon a responsible person who may speak to whether or not the process was served upon that responsible person. The return of service should therefore clearly state that a diligent search for the respondent was carried out and that the search efforts failed to locate the respondent.  Where as in this case there was no identity of the persons who refused to accept service nor their connection with the applicant, diligent search cannot be inferred.  The return of service did not state that diligent search was carried out nor did it state the situation of the generator from which it could be inferred that it was a conspicuous place.  In my view, the probabilities are that the applicant did not see the process.  Her conduct after being made aware of the court order and the sustained disagreements over the mining claim in question between the applicant and the first respondent persuade me that the applicant did not wilfully and deliberately ignore the application.  Her explanation that she did not see the application has a ring of truth.

In relation to wilful conduct by a party, it was stated by King J in the case Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994 (3) SA 801 (C)  at 803 H-I.

“wilful connotes deliberateness in the sense of knowledge or the action or consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend (or file a plea) whatever the motivation for his conduct might be.”

The above judgment and the above definition was considered to be the favoured definition of wilful default by Mcnally JA in the case Dewera’s Farm (Pvt) Ltd v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S) at 369 E-H and 307A, where the above text was quoted.  Applying the above dicta to the facts of this application, I am not persuaded that the applicant wilfully defaulted in defending the application.

The next issue is to determine whether the application for rescission is a bona fide one made for purposes of vindicating the applicant’s rights as opposed to seeking a rescission of judgment merely for purposes of delaying relief due to the applicant in the main case.  In this respect the factual scenario is that the applicant was alleged by the first respondent to have come to the disputed claim upon the invitation of a proxy of the first respondent’s business partner Mabibi Makonese as a prospective investor.  The full circumstances of the relationship between the parties was not elucidated to any appreciable length in case HC 5932/20 whose judgment is sought to be rescinded.  In the supporting affidavit of Makonese in case No HC 5933/20, she stated that the applicant commenced mining on the disputed claim together with her four workers on 14 September, 2020.  The applicant is said to have claimed ownership of the claim in dispute at the end of the same month of September, 2020.  In the current application the applicant averred that there was a boundary issue involved in that the first respondent fenced an area outside his ten hectare claim and that the area outside the claim was a reserved area in relation to which a mining syndicate called Golden Girls Mining Syndicate in which the applicant was a member had applied for a special grant.  The applicant attached documents to show that such application for a special grant was pending.  She denied that she mined in claim Xmas 159.  There is therefore  a genuine dispute in my view in regard to which the applicant would be entitled to judgment in her favour were she to prove that there is a boundary dispute as she alleged.  The application cannot be said to be grounded on mala fides grounds.

I next consider the bona fides of the defence sought to be advanced by the applicant on the merits.  It must be stressed that case No HC 5932/20, wherein judgment is sought to be rescinded was a court application wherein the cause of action and evidence of the first respondent was set out in the founding affidavit and supporting documents.  In other words in the application for rescission of judgment what the court must consider when determining whether or not the applicants proposed defence is a bona fides on the merits is the preferred defence to the case made out in the founding affidavit and supporting documents.  In other words the court places itself in a position where it considers the defence to be preferred to the extent that it answers the first respondent’s case in the founding and supporting affidavits used in the default judgment case.

The starting point is to observe the trite principle of law that in application proceeding an application stands or falls on the founding affidavit.  See Yumms Ahmed v Docking Station Safaris (Pvt) Ltd t/a CC sales where Bhunu JA stated at p 3 of the cyclostyled judgment:

“It is trite that an application stands or falls on its founding affidavit.  (See Fuyana v Moyo SC 54/06, Muchini v Adams & Ors SC 47/13 and Austerlands (Pvt) Ltd v Trade & Investment Bank Ltd & Ors SC 80/06…”

Following on the above principle , the first respondent in opposing the application and asserting  that the applicant has no bona fide defence to the main matter cannot proffer new facts or build upon the case which was alleged in the founding affidavit.  Equally, because the applicant had he or she opposed the main application, she or he would have traversed the founding affidavit, should demonstrate the bona fide defence by traversing the founding affidavit and not allege new facts which would not have been raised in addressing the founding affidavit.  The rules do not prescribe how the applicant should show the bona fide defence.  In my view, the applicant should in applying for rescission of a default judgment given in application proceedings, prepare a draft of the opposing affidavit intended to be filed were rescission to be granted.  The position may otherwise be different in action proceedings where a summons may be answered in various ways like excepting to it or apply for dismissal, further particular or to strike out.  In application proceedings, the respondent files an opposing affidavit if the application is opposed.  It is therefore advised to prepare and attach the draft opposing affidavit to the founding affidavit in the rescission application to deal with the issue of the bona fides of the defence on the merits.  Such an approach avoids a situation where parties create new matter and address issues which do not arise from the founding affidavit which formed the basis of the default judgment.

In casu, the main matter case No. HC 5932/20, the founding affidavit constituted seven (7) pages.  The opposing affidavit had it been filed would have answered the individual paragraphs in those seven pages apart from raising any dilatory points in limine.  The rescission of judgment comprises 145 pages yet the main application comprised 26 pages.  The applicant raised a lot of other matters which would not answer case no. HC 5932/20 which the applicant will defend in rescission if granted.  The court’s time is wasted where matters extraneous to the founding affidavit are raised in the rescission application.

In a rescission of judgment application, the applicant is not required to prove the defence intended to be proffered on a balance of probabilities.  The applicant only needs to allege and establish facts which are bona fide and amount to a recognizable defence at law.  The court must be wary that it does not end up determining the main matter in an application for rescission of default judgment.  This happens inadvertently if the court is not directed to appreciate that its duty in a rescission application is to determine whether there exists good and sufficient cause to allow the applicant to defend proceedings wherein a default judgment was granted against him or her.

The default judgment sought to be rescinded pertained to a convoluted application in my view because the application purported to be one for a prohibitory interdict wherein the first respondent sought that the applicant be stopped from mining on the disputed claim.  The first respondent then averred that there had been a spoliation yet in the same application he averred that the applicant had commenced mining as an investor brought in by the first respondent’s business partner.  The first respondent accepted in the founding affidavit in the main matter that there were competing claims between him and the applicant.  He averred that his rights were superior as provided in s 177 of the Mines and Minerals Act, because he was the prior pegger.  He averred that the applicant was claiming rights based upon a special grant.  First respondent also averred that he had only paid fees for extension of the mining block registered in his name and that extension was granted because of the acceptance of payment.  That clearly is untenable at law because the ownership of any claim is evidenced by issue of the requisite certificate of registration as opposed to payment which enables the application to be processed.

I have indicated that both parties did not confine themselves to the issues arising from the main case HC 5937/20.  What is, however, clear is that there is a mutually admitted dispute of competing claims to the mining area by both parties.  Such a dispute is common and is resolved domestically in the first instance by referring the dispute for resolution by the Mining Commissioner with the issue escalating to the Minister in terms of the provisions of s 50 of the Mines and Minerals Act, [Chapter 29:15].  The applicant has claimed that the area in dispute is reserved because there is a pending application for a special grant pending approval.  It cannot be said that the applicant’s intended defence is not bona fide.  It merits the determination of the court.  The interests of justice will be served by a determination of the dispute and having the area covered by the first respondent’s claim demarcated and determining whether the areas he claims to have fenced as covered by the claims in his name do not encroach into the reserved area wherein a special grant application is pending approval or rejection.

The proposed defence of the applicant therefore has prospects of success given that the first respondent does not have registration certificates covering the whole area which he fenced and purported to claim as his on the basis of having obtained an extension of the blocks and paid for processing of the licences relating to them.  Without the licences issued, the first respondent does not have a clear to the disputed claims right contrary to his assertions.  The applicant’s position that the disputed area falls outside the first respondent’s registered claim has prospect of success which merits that the matter be determined on the merits and the dispute of boundaries be put to rest.  The final interdict which the first respondent seeks in the main matter is fact based and such facts should be proven on a balance of probabilities.

The applicant has shown good and sufficient reasons for rescission of the default judgment in case no. HC 5932/20.  In respect of costs, having determined that the applicant was not in wilful default and that she has demonstrated good and sufficient cause for the rescission of the default judgment, an equitable order is to order that, costs be in the cause in the main matter.  The following order ensues:

IT IS ORDERED THAT:

The default judgment granted in case No. HC 59321/20 per Dube J (as she then was) dated 2 December 2020 is set aside and the applicant be granted leave to file her opposing papers within ten (10) days of the date of this order.

Costs are in the cause in case No. HC 5932/20.

Rusinahama Rubvukwa Attorneys, applicant’s legal practitioners

Muronda Malunga Legal Practice, first respondent’s legal practitioners