Judgment record
Pepukai Muregi v Ashanti Goldfields Zimbabwe Limited t/a Fredda Rebecca Mine and The Deputy Sheriff
HH 109-11HH 109-112011
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1
HH 109-11
HC 67/08
Ref Case No. 646/08
PEPUKAI MUREGI
versus
ASHANTI GOLDFIELDS ZIMBABWE LIMITED
t/a FREDDA REBECCA MINE
and
THE DEPUTY SHERIFF
HIGH COURT OF ZIMBABWE
GOWORA J
HARARE, 17 August 2010 and 16 June 2011
Opposed Court Application
G C Manyurureni, for the applicant
T Magwaliba, for the first respondent
No appearance for the second respondent
GOWORA J: The applicant seeks the rescission of a judgment entered against
him in default by this court on 26 June 2008. The effect of the order was to cause the
eviction of the applicant and all those claiming occupation through him from residential
premises described in the order as 1075 Chipadze Township Bindura. Only the first
respondent opposed the application and I will hereinafter refer to it as the respondent.
The facts which are common cause are as follows. The applicant was until
November 2007 employed by the respondent. By dint of his status as an employee the
applicant was allocated number 1075 Chipadze Township as accommodation for himself
and his family. When he left employment his family remained in the house. It is also
common cause that he is no longer resident in Bindura.
On 4 February 2008 the respondent, under Case No HC 646/08, caused summons
to be issued against the applicant for his eviction from the premises in question.
Summons was served, according to the return from the Deputy Sheriff, upon the
applicant. After the expiry of the dies induciae without entry of appearance to defend, the
respondent sought and obtained a judgment in default on 26 June 2008. The applicant
seeks the rescission of that judgement in these proceedings.
2
HH 109-11
HC 67/08
Ref Case No. 646/08
It is trite that a litigant who seeks the rescission of a judgment granted in default
must establish good and sufficient cause for the granting of the relief by this court. To
determine whether or not the applicant has shown that there is good and sufficient cause
the court has to consider the following factors:
a) the reasonableness of the applicant’s explanation for the default
b) the bona fides of the application
c) the bona fides of the defence on the merits and the prospects of success
The return from the deputy sheriff shows that the summons was served on the
applicant personally. The applicant denies being served with the summons and avers that
during the period in question he was at his workplace in Gwanda. He says that he could
not possibly have been in two places at the same time and suggests that there either
dishonesty on the part of the respondent or the deputy sheriff. The contention by the
respondent is that in view of the return from the deputy sheriff the applicant should have
filed with his answering affidavit a supporting affidavit confirming that he could not have
been Bindura at the time in question but in Gwanda where he alleges he is employed. I
agree. The return of service by an officer of the court, be it the Deputy Sheriff or
Messenger of Court is to be accepted as prima facie proof of what is stated thereon. The
applicant could have rebutted the statement on the return by an affidavit from a fellow
employee or an officer from the human resources department of his new employer
confirming his absence from Bindura and presence in Gwanda. He chose not to do so and
I must then accept that service was effected on him personally.
The respondent has urged this court in the light of the lack of an explanation from the
applicant as to why there was an apparent default to defend the claim, to find that the
applicant’s default was wilful. As the applicant chose not to take the court into his
confidence, the only inference is that he was therefore in wilful default. He ought to have
taken the court into his confidence and explained why despite knowledge of the summons
he decided not to enter appearance to defend the summons. A court that finds that an
applicant to a rescission of judgment was in default is justified on that basis alone in
dismissing the application. However, even if I have found that he may have been in
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HH 109-11
HC 67/08
Ref Case No. 646/08
wilful default, that is not necessarily the end of the matter, as the court has the discretion,
if it considers it fair and just to do so, to consider whether the circumstances warrant
consideration of the merits of the defence. For this principle I respectfully associate
myself with the remarks of GILLSPIE J in Deweras Farm (Pvt) Ltd v Zimbank Corp
1997 (2) ZLR 47 (H) at 55D-G to the following effect:
“The use of the word “normally”, which I emphasise, is significant, because it, shows
that wilful default is not always and necessarily a bar.
There are two judgment, regrettably unreported, which usefully illustrate the I am
making. The first is a decision of GUBBAY J (as he then was) in Gollub v Trotter HB
95-82. In that matter the learned judge wrote:
‘In the GD Haulage case (supra) at 735H DAVIES JA approved of the
proposition that the court’s indulgence will not be granted where the default of the
applicant may be classed as wilful. There is dictum to the same effect in the
judgment of LEWIS JP in Arab v Arab 1976 (2) RLR 166 at 173F-H. (See also du
Preeze v Hughes 1957 R & N 706 at 711G-H). this approach is based on public
policy which dictates that as far as possible there should be a finality to litigation.
My conclusion that the defendant was wilful really resolves the application
against him. I propose nonetheless to consider the two other factors relevant to an
application of this nature.’
This shows that despite the acceptance of the principle that wilful default in itself
might justify refusal of rescission without consideration of the merits, the learned
judge was unwilling to base his decision on a finding of wilful default without any
consideration of the merits.
This caution, if I might so suggest, was well-founded since the passage from the case
of GD Haulage (Pvt) Ltd v Mumurgwi Bus Services (Pvt) Ltd 1979 RLR 447 (A) at
735H, upon which the learned judge relied, did not in fact consist of an approval of
the proposition that a wilful default is always visited by rescission.”
I am persuaded therefore that even where wilful default has been found to exist,
nevertheless in certain case, where the merits of the defence appear strong, the court may
find that good and sufficient cause exists and grant the applicant the indulgence to have
the default judgment set aside.
I turn next to the question of the bona fides of the application. It was argued on behalf
of the respondent that there was nothing to suggest that the application was made in good
faith, but that everything on the papers points to an intention on the part of the applicant
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HH 109-11
HC 67/08
Ref Case No. 646/08
to delay execution of the judgment granted against him. It was contended further that the
applicant never purchased the property in question, but that the relationship between the
parties was that of landlord and tenant.
Per contra, the applicant argues that he purchased the property from the respondent
and has paid full value for it. Therefore, it is further argued there is ample evidence that
he has a good and bona fide defence to the claim for his ejectment from the premises. He
suggests that a contract of sale was concluded between the parties. Purchase and sale is a
contract where one party, the seller, agrees with another, the purchaser, to deliver to the
latter the free possession of a thing in return for a price in money. The three essential of a
contract of sale are therefore; the sale by one party and the purchase by the other party, a
defined and ascertainable thing, and lastly a fixed price for the sale and purchase of the
thing. The applicant contends that there were deliberations between the board of the
respondent and the representatives of the employees in terms of which it was agreed that
the employees who were sitting tenants in the houses owned by the respondent would
purchase those houses and a price was fixed for individual houses. He contends that on 1
December 2003 an agreement was concluded between the said representatives and that
therefore an agreement came into force. He disputes that the lease agreement was the
governing agreement and insists that it existed merely to facilitate payment of the
purchase price.
The applicant has annexed to his founding affidavit a document which reflects the
names of the employees, the address of the unit occupied a price disposal list and the
amount of monthly repayment against the name of the employee. The applicant’s name
appears on the list. The house is valued at Z$1, 2 million and the monthly repayment is
stated to be Z$ 20 000.00. He has also attached what appears to be an extract from pay
sheets showing amounts reflected as rent to buy. There is also a receipt reflecting a
payment of Z$ 1 162 000 as payment for the house.
The suggestion by the applicant that there was more to this agreement than a lease
agreement becomes attractive. If what the parties had concluded was a lease agreement,
under what circumstances would the respondent accept payments from a tenant which it
calls rent to buy. Even accepting that there was an option to purchase on the part of the
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HH 109-11
HC 67/08
Ref Case No. 646/08
tenant at some future date hw then did the respondent accept what can only be described
as a large payment as anything other than payment of a purchase price. I am inclined to
believe that there was more to the agreement between the parties than a simple lease
agreement. I cannot state categorically that there was a contract of sale between the
applicant and his employer; that is for the trial court to conclude. I am however inclined
to accept that the applicant has been able to establish that he has a good and bona fide
defence to the claim for his eviction and that it has prospects of success.
Although he has not been able to give a reasonable explanation for the default in my
view the applicant has established good and sufficient cause for the rescission of
judgment granted in default against him. In the premises I will issue an order in the
following terms;
IT IS ORDERED AS FOLLOWS
1) The default judgment granted against the applicant under Case No HC 646/08
dated 26th June 2008 be and is hereby set aside
2) The applicant be and is hereby ordered to file his plea or other answer to the
plaintiff’s summons and declaration within forty-eight hours of the granting of
this order.
3) The applicant is ordered to bear the costs of this application.
Manyurureni & Co legal practitioners, for the applicant
Magwaliba & Kwirira, respondent’s legal practitioners