Ronnah Mafurirano v Total Zimbabwe (Pvt) Ltd

### Preamble
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HH 286-13
HC 2306/13
RONNAH MAFURIRANO
versus
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RONNAH MAFURIRANO
versus
TOTAL ZIMBABWE (PVT) LTD

HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 15 July 2013, 11 September 2013

Opposed Application

P. Kumbawa, for applicant
I. Pasi, for respondent

CHIGUMBA J: This is an application for rescission of a judgment granted under case number HC 13281/12, brought in terms of Order 9, Rule 63 of the High Court Rules 1971. At the hearing of the matter, I dismissed the application with costs and indicated that my reasons for so doing would follow. These are the reasons:

The background to this matter is that applicant sued the respondent for a variety of species of relief following her removal from the forecourt of the service station where she was operating in terms of an agreement between herself and respondent. She issued summons on 14 November 2012 and served it on the Respondent a week later. The parties subsequently consented to an amendment of the summons and Declaration.

On 25 February 2013 the Respondent filed a special plea in abatement based on the fact that the matter concerning applicant’s eviction from the service station was res judicata. Applicant contends that it was when the special plea was served on her legal practitioners of record, on or about 25 February 2013 that she became aware of the existence of the Default judgment. Applicant contends further, that she was not served with a copy of the application for default judgment.

Respondent admits that it did not serve the application for default judgment on the applicant, and avers that there was no need to serve the applicant with the application because she had waived her right to be heard and consented to judgment without further notice to her on 9 May 2012. Applicant did not deny signing the agreement that judgment could be obtained without further notice to her, she averred that she had signed that agreement under duress.


The operative part of the agreement signed by applicant, part of a letter penned by the respondent, dated 24 April 2012, reads as follows:

“In the event that you breach any of the terms and conditions of this agreement the suspended Marketing License Agreement will automatically be terminated and you will vacate the premises being 64 Robert Mugabe Way, Bulawayo on or before 1 August 2012, failing which Total Zimbabwe Private Limited will be entitled to apply to the High Court (for an order for your eviction from the premises and the recovery of all outstanding amounts…on the unopposed High Court roll without the need to give notice to you…”

Order 9 Rule 63 of the rules of this court provides that:

“(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.

(2) If the court is satisfied on an application in terms of sub rule (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 or to the plaintiff to prosecute his action on such terms as to costs and otherwise as the court considers just.”

The factors which guide a court in determining an application for rescission of judgment are:

(a) The reasonableness of the applicant’s explanation for the default
(b) The bona fides of the application.
(c) The bona fides of the defense on the merits and the defense must carry some prospects of success. See Stockil v Griffiths 1992 (1) ZLR 172(S), Songore v Olivine Industries P/L 1988 2 ZLR 20 (S), Zimbabwe Banking Group v Masendeke 1995 (2) ZLR 400(S).

“Good and sufficient cause”, a requirement of Order 9 r 63 (2), has been interpreted in Chihwayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) ZLR 89(S). The test is in essence a combination of the reasonableness of the explanation for the default, and an assessment of the merits of the defense in the main matter, whether the defense carries some prospects of success. See Herbstein and van Winsen The Civil Practice of the Superior Courts in SA 3 ed p 371:

“The applicant must show that he has a bona fide defense to the plaintiff's claim, it being sufficient if he sets out averments which, if established at the trial, would entitle him to the relief asked for; he need not deal with the merits of the case or produce evidence that the probabilities are actually in his favor.”

It is my view that this application falls on the reasonableness of the explanation for default, and the bona fides of the applicant in bringing this application. It is simply not factually correct that the applicant only became aware of the default judgment on 25 February 2013. Despite the fact that, in terms of the letter dated 24 April 2012, in which applicant agreed that if she defaulted, respondent could obtain judgment on the unopposed roll, without further notice to her, there is another letter, dated 3 August 2012. In that letter, in paragraph 5, the respondent’s legal practitioner advises the applicant that:

“We are instructed that in breach of the agreement you have among other things failed to comply with your undertaking to raise US$80 000, 00 working capital by 31st July 2012, In the circumstances we hereby demand that you pay all outstanding arrears and vacate the premises within 48 hours of receipt of this letter failing which we have instructions to apply to the High Court for an order for your eviction and recovery of any outstanding amounts”.

Clearly, this letter placed applicant in mora, and constitutes notice of intention to institute legal proceedings. I find that there is no prima facie evidence, that applicant was placed under duress when she signed the letter of 24 April 2012. Applicant signed the letter on 9 May, and the parties subsequently continued to enjoy a cordial business relationship until applicant defaulted on her undertaking to raise working capital in the sum of US$80 000,00 by 31 July 2012. The letter of 3 August 2012, in my view, destroys applicant’s case in one fell swoop.

It shows lack of bona fides on the part of the applicant in averring that she was entitled to notice of the application for default judgment, and it demonstrates that applicant is not likely to succeed on the merits, she clearly breached the various agreements entered into by the parties and cannot succeed in challenging an application for her eviction from the service station. Applicant has failed to show that she is entitled to rescission of default judgment. Her explanation was found to be insincere and insufficient by the court and the prospects of success of her defense in the main matter was found to be negligible. For these reasons the application is dismissed with costs.

Hara & Associates, applicant’s legal practitioners
Gill, Godlonton & Gerrans, respondent’s legal practitioners
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