Orchadelane (Private) Limited v Greenbay Technologies (Private) Limited

### Preamble
1
HH 259-2012
HC 6388/11
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ORCHADELANE (PRIVATE) LIMITED

versus

GREENBAY TECHNOLOGIES (PRIVATE) LIMITED

M.P. Jonhera for the Applicant

A. Muchandiona for the Respondent

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 13 June and 20 June 2012

Opposed Application

MATHONSI J: The respondent issued summons against the applicant in case No.

HC1926/11 for payment of the sum of US$16 059-75 for work and labour done and materials

allegedly supplied to the defendant in October 2010 together with interest and costs of suit. The

respondent alleged in its declaration that, at the instance of the applicant, it had installed and

commissioned a filling line for the applicant and after presenting its invoice, the applicant had

failed to pay.

The applicant entered appearance and in due course filed a plea which read thus:-

“Defendant pleads to the plaintiff’s claim as follows;

Ad paragraph 1-2

No issues arise.

Ad paragraph 3

Denied. The defendant has no record of an order instructing Greenbay Technologies to do any work at the machine. In any event, it is impossible for the defendant to commission some work to be done on a machine that belongs to Poly Oak a separate legal entity in its own right.

Further, the defendant denies that there were any parts installed on the

machine and to that end, puts the plaintiff to the strict of its claims (sic)

Ad paragraph 4

The defendant denies ever entering into such an agreement with the plaintiff.

Ad prayer

The defendant denies ever agreeing with the plaintiff to levy 5% interest on anything and to that end puts the plaintiff to restrict proof thereof.”

The thrust of the applicant’s plea was that it had no relationship with the respondent and suggested that it had been wrongly sued instead of an entity known as Poly Oak. Clearly the applicant did not contest the amount claimed, at least not directly.

The matter was set down for pre trial conference, initially on 13 June 2011. The record shows that on 3 June 2011, the applicant was served with a notice to attend the pre trial conference, through its then legal practitioners Messrs Mtetwa and Nyambirai. It also shows that on 13 June 2011 Ms Maenzanise appeared in MUTEMA J’s chambers representing the applicant. The Judge noted that the applicant was not in attendance and had not been excused. He postponed the matter to 24 June 2011 and ordered the applicant to pay the plaintiff’s wasted costs.

When the matter came up again on 24 June 2011, not only were the applicant and its legal practitioner in default, no pre trial conference minute and summaryof evidence had been filed on its behalf as required by the rules of Court. Up to now those documents are still outstanding. As a result, the applicant’s defence was struck out and judgment was entered in favour of the respondent in default.

The applicant then filed this application seeking an Order for the rescission of the default judgment. In the founding affidavit deposed to by Mayor Mangeya, the Chief Executive Officer of the applicant, the explanation given for the default is that the applicant’s then legal practitioner, Ms Maenzanise was engaged in an urgent application at the High Court and therefore could not make it to the pre trial conference. The explanation is contained in paragraph 10 of the founding affidavit, which reads;

“EXPLANATION FOR THE DEFAULT

10.    To reason for the default is evident from a perusal of the supporting affidavit of

FADZAI MAENZANISE.

10.1  The applicant’s legal practitioner Ms F. Maenzanise was engaged in an urgent

chamber application in the High Court.

10.2	The respondent’s legal practitioner was informed that the applicant’s legal

practitioner was in an urgent application and he was going to attend to the pre trial 		conference as soon as the urgent application was finalised.

10.3	Upon finalisation of the urgent chamber application, the applicant’s legal

practitioner was informed that a default judgment had been granted against the applicant.”

No explanation is given as to why the applicant itself did not attend.

On the bona fides of the applicant’s defence to the claim, Mangeya states in paragraphs 11 to 14 as follows;

DEFENCE ON THE MERITS

11.	The respondent was suing the wrong party, the respondent ought to be suing Poly

Oak (Pvt) Ltd, an affiliate of the applicant. Poly Oak is a separate legal entity in

its own right.

12.	The applicant is not privy to the contractual agreement which took place between Poly Oak (Pvt) Ltd and the respondent.

13.	The applicant is not privy to the interest rates that the respondent had agreed with Poly Oak (Pvt) Ltd.

14.	I verily believe that the applicant has a reasonable and acceptable explanation for its default and that on the merit, the applicant has a  bona fide defence, which prima facie carries some prospect of success.”

There is no supporting affidavit of F. Maenzanise. Instead a supporting affidavit has been submitted by Harrison Nkomo. As to how and when F. Maenzanise metamorphosed to Harrison Nkomo in one application, we are not told. Be that as it may, Nkomo gives a different shade to the whole issue. He states;

“2.	I was at all material times applicant’s legal practitioner. The facts I depose to

herein are within my personal knowledge.

3.	On the 25th of June 2011 (the pre trial conference was held on 24 June 2011), I

could not attend to the pre trial conference in time, the reason being that I was also engaged in an urgent chamber application before JUSTICE MAVANGIRA which commenced at 8:30 hrs and ended at 13:00hrs.

I instructed my secretary to alert the respondent’s legal practitioner of my predicament so that the pre trial conference would be postponed to a time convenient to the Court.

I was shocked to learn that a default judgment had been entered against the applicant.”

If the applicant cannot get the basics of who represented them at the pre trial conference and both the applicant and the legal practitioner cannot get the date right, it is even more difficult for the Court to follow the explanation for the default. This is particularly so, as no explanation has been given as to why the applicant did not comply with the Judge’s directions to file its pre trial conference minute and summary of evidence, which documents remain outstanding to this day.

In terms of r182 (11) of the High court rules.

“A Judge may dismiss a party’s claim or strike out his defence or make such other

Order as may be appropriate if;-

the party fails to comply with directions given by a Judge in terms of Subrule (4) (6) (8) or (10) or with a notice given in terms of Subrule (4); and

any other party applies orally for such an Order at the pre-trial conference or makes a chamber application for such an Order.”

The applicant was served with the notice of the pre-trial conference on 3 June 2011. The notice called upon the parties to file both their pre-trial conference minutes and summary of evidence not less than 5 days before the date of set down. The applicant did not comply. As if that was not enough, the Judge directed the applicant to make discovery and file its per-trial conference papers before 20 June 2011 but again there was no compliance.

The applicant’s lack of diligence is alarming. Even after filing this application for rescission of judgment in July 2011 not only did it fail to file an answering affidavit, it also failed to do anything about the application until the respondent took measures to set it down. Even after being served with the respondent’s heads of argument on 26 August 2011, the applicant did not bother to file its own heads of argument and was automatically barred. It was only the magnanimity of the respondent which led to the upliftment of the bar on the date of hearing.

Now, there is a limit to an indulgence. This is particularly so as the stated defence of the applicant is so shakey, that it smacks of a complete lack of bona fides. The respondent has submitted invoices supporting its claim which were made out in the name of the applicant and delivered to the applicant. It has also submitted copies of emails between the parties showing that the applicant requested and was granted a discount. The applicant demenstrably has no defence.

It is probably for that reason that Mr Mushoriwa, who was tasked with the unenviable responsibility of mopping the mess, had to shift his ground and try to introduce a new defence not contained in both the plea and application. He sought to contest the amount being claimed. He cannot do that because the application stands or falls on the founding affidavit.

The law relating to rescission of judgment has been correctly stated by both counsel. Rule 63 of the High Court Rules requires an applicant for rescission of judgment to show “good and sufficient cause” for the rescission of judgment. That has been interpretated in a line of cases to mean that the Court must have regard to, the reasonableness of the explanatory for the default, the bona fides of the application and the bona fides of the defence on the merits. These factors must be considered both individually and in conjunction with one another. Stockill v Griffiths 1992 (1) ZLR 172 (S) at 173 D-F; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211 C-F.

As stated in Dewaras Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S) at 369E the enquiry involves the exercise of a discretion. I agree with Mr Muchandiona for the respondent that this application does not pass the test of “good and sufficient cause”. Not only has the applicant failed to give a reasonable explanation for the default, which explanation contains contradictions and falsehood, it has been unable to show the bona fides of its purported defence. At one stage it was negotiating a discount, at another stage it was seeking to hedge behind Poly Oak ( Pvt) Ltd and at yet another it sought to challenge the invoice.

It is a cardinal principle of our law that there must be finality to litigation. Ndebele v Ncube 1992 (1) ZLR 288 (S). I cannot exercise my discretion in favour of the applicant who is certainly unlikely to succeed at the trial. The application is clearly without merit.

Accordingly, the application is dismissed with costs.

Wintertons legal practitioners, applicant’s legal practitioners

Danziger & Partners, respondent’s legal practitioners.