Nu-Aero (Private) Limited T/a FLY Africa Zimbabwe AND Cassidy Mugwagwa V Detect Investments (Private) Limited T/a Appropriate Technology Africa

### Preamble
1
HH 565-18
HC 6282/17
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NU-AERO (PRIVATE) LIMITED T/A

FLY AFRICA ZIMBABWE

and

CASSIDY MUGWAGWA

versus

DETECT INVESTMENTS (PRIVATE) LIMITED

T/A APPROPRIATE TECHNOLOGY AFRICA

IN THE HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 7 September 2018

Opposed Application

H. Muromba, for the applicants

E. Mubaiwa, for the respondent

MUREMBA J: This was an application for rescission of a default judgment in terms of rule 449 (1) (a) of the High Court Rules, 1971. On 7 September 2018 I heard the matter and delivered an ex tempore judgment. I have now been asked for the written reasons and these are they.

The facts of the matter were as follows. The respondent filed an urgent chamber application under HC 4239/17 on 12 May 2017. On the very day the respondent served the application on the applicants who then engaged their lawyers. Upon getting instructions the applicants’ lawyers wrote to the respondent’s lawyers on 15 May 2017 indicating among other things that the matter was not urgent. On the other hand Makoni J who had been allocated the matter endorsed that the matter was not urgent and removed it from the roll of urgent matters on the same day of 15 May 2017. In other words Makoni J did not set down the matter for hearing as an urgent matter. The parties were therefore not served with notices of set down to come and argue the matter.

That having happened, the respondent then had the matter set down on the unopposed roll without notice to the applicants and on 21 June 2017 a judge sitting in motion court granted  the same provisional order Makoni J had refused to grant in chambers on the basis that the matter was not urgent. In their application for rescission the applicants contended that the set down of the urgent chamber application on the unopposed roll was not in accordance with Order 31 Rule 223 of the High Court Rules. The gross non- compliance with the rules resulted in the respondent obtaining judgment in the absence of the applicants thereby denying them the opportunity to be heard. The applicants contended that had the fact of the removal of the matter from the urgent roll been brought to the attention of the judge in motion court, the order would not have been granted.

In its notice of opposition the respondent raised two points in limine which it did not pursue at the hearing on the basis that those points in limine touched on the merits of the matter. On the merits, the respondent averred the following. It had the matter referred to the unopposed roll because after receiving Makoni’s order that the matter was not urgent on 15 May 2017, the applicants ought to have filed their notice of opposition within 10 days which they did not do. The respondent contended that the removal of the matter from the urgent roll did not throw the matter out of court. The matter was now on the ordinary court roll as an ordinary court application subject to the rules and time lines of ordinary applications. The dies induciae expired 10 days from the date Makoni J endorsed that the matter was not urgent. By failing to file their notice of opposition within those 10 days, the applicants were therefore in wilful default. Over and above that in the letter that had been written by the applicants’ lawyers on 15 May 2017 saying that the matter was not urgent, the applicants had not protested liability. The respondent further averred that the order that was granted in motion court was not provisional in substance. The applicants were ordered to reimburse money to it and there is nothing provisional about such an order. The order is final and definite in nature and effect. It is a misdirection for the applicants to aver that the order granted is a provisional relief because there will not be anything to grant on the return date.

It is imperative that I quote in full the court order that formed the subject matter of the application for rescission. It reads:

“PROVISIONAL ORDER

TO: THE RESPONDENTS

TAKE NOTE that, on 21st day of June 2017 the High Court sitting at Harare before the 	Honourable Mr Justice Mangota issues a provisional order as shown overleaf.

The annexed chamber application, affidavit/s and documents were issued in support of the 	application for this provisional order.

If you intend to oppose the confirmation of this provisional order, you will have to file a 	notice of Opposition in Form No. 29B, together with one or more opposing affidavit/s, with 	the Registrar, of the High Court at Harare within 10 days after the date of which this 	provisional order and annexures were served upon you. You will also have to serve a copy of 	the Notice of Opposition and Affidavit/s on the applicant at the address for service specified 	in the application.

If you do not file an opposing affidavit within the period specified above, this matter will be 	set down for hearing in the High Court at Harare without further notice to you 	and will be 	dealt with as an unopposed application for confirmation of the provisional order.

If you wish to have the provisional order changed or set aside sooner than the Rules of 	Court normally allow and can show good cause for this, you should approach the 	applicant/applicant’s legal practitioners to agree, in consultation with the Registrar, on a 	suitable hearing date. If this cannot be agreed or there is a great urgency, you may make a 	chamber application, on notice to the applicant, for directions from a judge as to when the 	matter can be argued.

BY THE JUDGE

for: REGISTRAR

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in 	the 	following terms:-

The applicant be and is hereby declared the owner of the US$60 000 which held by the 1st respondent (sic).

The 1st and 2nd respondent shall pay interest at the prescribed rate from the date 8th of May 2017 to date of full and final payment the one paying the other to be absolved.

1st and 2nd respondent shall pay cost of suit on an attorney client scale the one paying the other to be absolved.

INTERIM RELIEF GRANTED

That pending the finalisation of this matter, the applicant is granted the following 	relief:

The application for an interdict be and is hereby granted.

The 1st and 2nd respondent be and are hereby ordered to reimburse applicant’s    US$60 000 within 48 hours of this order the one paying the other to be absolved.

The 1st and 2nd respondent be and is hereby ordered to pay the reimbursement as stated in paragraph (b) into the Trust Account of Messrs Stansilous and Associates.

The 1st and 2nd respondent be and are hereby ordered to pay 10 percent collection commission.

Cost of suit shall be costs in the cause.”

After weighing the arguments made by both counsels and going through the file      HC 4239/17, I granted the application for rescission. My reasons for doing so were as follows. The file HC 4239/17 showed that the provisional order that Makoni J had refused to grant in chambers is the same provisional order that was granted in motion in court. Moreover, the applicants had not been served with the application after Makoni J had endorsed that the matter was not urgent on 15 May 2017 and before the matter was set down for hearing in motion court on the unopposed roll. The proof of service that was used to obtain the default judgment in motion court was the certificate of service for the urgent chamber application that had been served on the applicants on 12 May 2017 which was the very day the urgent chamber application was filed, well before 15 May 2017 when Makoni J then endorsed that the matter was not urgent. So after the matter was removed from the roll of urgent matters, the respondent did not serve the applicants with the application which was now being dealt with as an ordinary court application. There was no proof of service to this effect. The applicants had therefore not been given an opportunity to file their notice of opposition and opposing affidavit. The default judgment was therefore erroneously granted in the absence of the parties affected by it. The default judgment was thus erroneously sought by the respondent who had not served the application on the applicants and erroneously granted by the judge in motion court who did not notice that there was no proof of service of the application on the applicants after Makoni J had declined to deal with the matter as an urgent matter. In terms of rule 449 (1) (a) if a judgment is erroneously granted it should be set aside on that basis regardless of whether or not the person against whom it was given has a good prima facie defence to the claim. See Banda v Pitluk 1993 (2) ZLR 60 (H). The requirement that the applicant should have a bona fide defence on the merits of the case is only material in applications for rescission that are made in terms of rule 63 of the rules of this court.

Over and above the non-service of the application, it was also apparent that the respondent having failed to obtain a provisional order from a judge in chambers had gone to motion court to obtain the same provisional order that he had been denied. If a judge in chambers declines to hear a matter on the basis that it is not urgent the applicant cannot go to motion court to obtain the same. If a matter is not urgent it is removed from the roll of urgent matters and then proceeds as an ordinary court application. Therefore the order that the applicant can only obtain is a final order and not a provisional order as what happened in the present matter. It was therefore necessary for the respondent to have amended its draft order to reflect that it was seeking a final order. Since this was not done, the judge in motion court granted a provisional order on Form 29C and the order was saying that if the respondents in the matter intended to oppose the confirmation of the provisional order they should file their notice of opposition and opposing affidavits within 10 days of service of the provisional order upon them, failure upon which the provisional order would be confirmed without notice to them. The argument by Mr Mubaiwa for the respondent in the present matter was that what is important is the substance of the order that was granted and not the form of the order. His argument was that regardless of the form of the order the substance showed that the court granted a final order. This argument was very misplaced in my view. In the circumstances of the case the form mattered very much because it was telling the respondents in the matter who had not been given an opportunity to oppose the matter that there was going to be a return date whereupon they were going to be given an opportunity to argue the matter if they wished to oppose the confirmation of the provisional order. Therefore irrespective of the substance of the order, the form showed the respondents in the matter that a provisional order had been granted against them.

It is for the above reasons that I granted the application for rescission of the default judgment.

Kantor & Immerman, applicants’ legal practitioners

Stansilous & Associates, respondent’s legal practitioners