Swift Debt Collectors (Pvt) Ltd t/a Ruby Auctions and Lyton Shumba v Portion Muvirimi

### Preamble
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HH 772-18
HC 1009/18
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SWIFT DEBT COLLECTORS (PVT) LTD t/a RUBY AUCTIONS

and

LYTON SHUMBA

versus

PORTION MUVIRIMI

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, June 18, 2018 and November 21, 2018

Opposed application

J Chikura for applicants

E T Muhlekiwa for respondent

CHITAKUNYE J: On 1 July 2015 the respondent sued the applicants for a sum of USD 60 000.00 being damages for malicious prosecution. He alleged that the applicants  wrongfully and maliciously caused his arrest, detention and prosecution for contempt of court as a result of which he suffered damages in the sum of USD60 000.00.

In that suit the respondent cited the two applicants as first and second defendants and the magistrate who had presided over his initial court hearing as third defendant.

The applicants duly entered appearance to defend and filed their plea to the action. They also made a counter claim for defamation damages in the sum of USD400 000.00 against the respondent purportedly arising from the allegations in this suit.

After the closure of pleadings, a pre-trial conference was held and the matter was referred to trial.

Subsequently the matter was set down for trial on the 29th January 2018. A notice of set down for trial was duly served on the parties.

On the 10th January 2018 the respondent withdrew his claim against the 3rd defendant. The notice of withdrawal was served upon the applicants’ legal practitioners on 11th January 2018. That notice read as follows:

“Take Notice that Plaintiff hereby withdraws his entire claim against the 3rd Defendant and tenders wasted costs.”

On the 12th January 2018 the applicants’ legal practitioners wrote two letters after receiving respondent’s notice of withdrawal. The first letter was to the respondent’s legal practitioners advising and confirming that they had received their assumption of agency as well as the notice of withdrawal and accordingly they will be serving them with a bill of costs within the next five days.

The second letter was written to the applicants informing them that the respondent had withdrawn the claim in these words:

“….., we advise that Portion Muvirimi’s lawyers have filed a Notice of Withdrawal for the above matter. They have withdrawn the entire claim as stated in the withdrawal. We have written to them acknowledging the withdrawal and we will also pursue the issue of costs.

Once we finalise same, we will advise you. On another note, we now require your instructions on the counter claim as it was mainly a reaction to their claim. We believe that there may be no need to proceed with (sic) in light of the withdrawal. However, we may decide to withdraw on the date of the hearing.”

On Friday the 26th January 2018 at about 16:28 hours the applicants’ legal practitioners were served with the Plaintiff’s bundle of documents for trial.

On Monday the 29th January 2018 as fate would have it, the applicants and their legal practitioner did not turn up for trial hence a default judgement was entered against them. The applicants’ defence and counter claim were struck out and the matter was referred to the unopposed roll for quantification of damages.

Within about two days of the grant of the default judgement, applicants became aware that a default judgement had been entered against them. Frantic efforts were made through their legal practitioners to obtain respondent’s lawyers’ consent to rescind the judgment to no avail. Some communication was exchanged but respondent would not agree to a rescission of judgement. It was when such effort failed that on the 5th February 2018, applicants filed this application in terms of rule 63 of the High Court Rules 1971. The applicants’ main argument was to the effect that they were under the belief that as advised by their legal practitioner, the respondent had withdrawn the matter in its entirety. They thus argued that they were not in wilful default but had acted under a mistaken belief which had been communicated to them by their legal practitioner.

The respondent opposed the application. In his opposition he raised a preliminary point to the effect that the application is fatally defective as the applicants did not attach the default order in question.

On the merits the respondent contended that the applicants were in wilful default as the notice of withdrawal was clear that it pertained to third defendant only. In any case the applicants had a counter-claim which they were expected to pursue on the trial date. As far as respondent was concerned the applicants were not being candid with court.

Preliminary point

The respondent contended that the application is fatally defective in that the order sought to be rescinded was not attached to the application. He also argued that as the applicants did not have a copy of the default judgement, it follows that the application is premised on a judgment not known to the applicants. The application has been made prematurely as the applicants assumed that the respondent was now armed with a default judgement in the sum of US60 000.—when the order referred the issue of quantification to the unopposed roll and so no figure was granted.

In his submissions respondent’s counsel contended that the applicants only became aware of the default judgement on the 6th February 2018 and so when they filed their application on 5th February they did not have the requisite knowledge. In contending that a copy of the order ought to have been attached to the application and that failure to so attach is fatal to the application, the Respondent’s counsel cited the case of M M Pretorius (Pvt) Ltd & Others v Mutyambizi 2012 (2) ZLR (S) wherein ziyambi JA held that:

“This application is beset with problems, the first of which is that it does not contain a copy of the judgment appealed against (see r 31). This non-compliance renders the application fatally defective, as no consideration of the application can be undertaken without sight of the judgement.”

It is, however, important to note that rule 31 of the Supreme Court Rules, 1964 specifically provides for the attachment of the judgement being appealed against in an application for leave to appeal and extension of time to appeal.

That rule unequivocally states that:-

“(1) An application that leave to appeal be granted or for an extension of time in which to appeal shall be by notice of motion signed by the applicant or his legal representative and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application that leave to appeal be granted shall set out the date on which the High Court refused leave to appeal and shall have attached to it —

(a) a notice of appeal containing the matters required in terms of paragraphs (c) to (f) of subrule (1) of rule 29;

(b) a copy of the proceedings before the High Court when leave to appeal was refused, together with the judgment, if any;…”

The above provision is peremptory and any failure to comply will render the application fatally defective. Rule 63 of the High Court Rules on the other hand does not specify that a copy of the default judgement must be attached to the application. What the rule requires is that the applicant must have knowledge of the default judgement. In that regard the rule states that:-

“A party against whom judgement 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 judgement for the judgement to be set aside.”

Nowhere does the rule require that the applicant must attach a copy of the order or judgment sought to be rescinded to the application.

It is crystal clear that r 63 only requires one to have had knowledge of the default judgement. It is that knowledge that should then move one to apply for its rescission. The respondent contended that such knowledge can only be derived from the time a party has sight of the judgement and not from merely being informed about the judgement. In this regard counsel argued that reliance on information from their legal practitioners was not enough as this was hearsay.

It is my view that respondent is stretching the requirement of knowledge too far. The knowledge envisaged is that a default judgement has been entered against them and not that applicant must have personal sight of the default order. If this was so there would be no use in deeming that a party has knowledge after two days as provided for in r 63(3).  Equally the dies induciae would then run from the time a party is served or has sight of the default judgement. For all we know a party who is informed that a default judgement has been entered against them and avoids securing a copy of such default judgement cannot escape sanction for delaying in filing the application for rescission on the ground that he had no knowledge of the judgement. In casu, the applicants’ legal practitioners were informed by respondent’s legal practitioner on the 30th January that a default judgement had been entered against applicants and the legal practitioners in turn informed applicants. That constituted the requisite knowledge for the dies induciae to begin to run.

In their letter to respondent’s legal practitioner dated 31st January 2018, applicants’ legal practitioners confirmed their knowledge of the default judgement   in these words:-

“Further to our telephone conversation on the 30th January 2018, in which it was discussed that the default judgement you obtained was solely based on our Mr. Chikura’s inattention to detail and not our client’s unwillingness to pursue the matter, we hereby formally request for your consent to our Application for Rescission of Default Judgement. ….”

Further correspondence between the legal practitioners before the applicants filed this application on the 5th February pertained to efforts at having the default judgement rescinded by consent. It is thus not correct to say that applicants only came to know of the default judgement on the 6th February and that when they filed their application on 5th February they had no knowledge of the default judgement.

In their letter dated 16th February 2018 the respondent’s legal practitioners, in responding to a number of letters from applicants’ legal practitioners, confirmed as much in paras 4, 5 and 6 thereof wherein it is stated that:-

“Be that as it may, we will attempt to respond to all your letters herein as per your request. Firstly, on 29 January 2018, when the default judgement was granted, your Mr J Chikura called our Mr Muhlekiwa around 2:00 pm in the afternoon through his net-one line (….) but the call did not go through.

Our Mr Muhlekiwa returned the said call around 5 pm, only to discover that it was your Mr Chikura. Mr Chikura questioned what had transpired in court and he was advised that the court had granted default judgment as the defendants were in wilful default.

Your Mr Chikura, further sought our consent to rescission of judgment over the phone, but was advised that we could not do so because(1) this was a case of wilful default which even the court confirmed, regard being had to the fact that you were served with the notice of set down but did not attend court. (2) We further advised your Mr Chikura that we could not consent to his rescission request because we needed to get instructions from our client. A fact which we communicated to you in our letter dated 5 February 2018.”

This puts paid to any contention that applicants, through their legal practitioners, had no knowledge of the default judgement. They may not have had sight of the specific provisions of the court order but they certainly were made knowledgeable about the default judgement through their legal practitioners as their agents.

What is apparent is that because the applicants’ legal practitioner was not diligent enough to either inquire from respondent’s legal practitioners or from court for a copy of the default judgement or the specific terms of the default judgment, the applicants proceeded on the assumption that respondent was already armed with a judgement that stated the quantum of damages as US$ 60 000.00. That aspect did not however mean that the applicants had no knowledge that a default judgement had been entered against them. It is only that they did not have the specific terms of that judgement hence proceeded on the premise that damages had already been quantified. In any case, the default order in issue was subsequently filed of record and no prejudice has been occasioned to any party.

It is my view that applicants did not need to wait for quantification of damages on the unopposed roll before seeking to have the default judgement granted on 29 January 2018 rescinded. The one month period begun to run from the day they became aware of the judgment against them despite the lack of quantification of damages.

I am therefore of the view that the application was not premature as contended by respondent. It is, however, pertinent to note that had applicants’ legal practitioner been diligent he would have ascertained the terms of the default order first in order that the application portrays the true contents of the default order rather than assume that respondent was already armed with a quantified court order. This anomaly is however not fatal to the application. The main aim of the application is the rescission of the default judgement granted on 29 January 2018.

Accordingly the preliminary point will be dismissed.

On the merits

The applicants’ legal practitioner argued that applicants have established good and sufficient cause for the rescission of the default judgement as required in terms of rule 63. The respondent’s legal practitioner, on the other hand, contended that applicants have not shown good and sufficient cause for the default judgement to be rescinded as they were in wilful default. It is thus pertinent to determine whether the applicants have discharged the onus or not.

As already alluded to above r 63(1) entitles a party against whom a default judgement was given to apply for its rescission within a month from when he has knowledge of the judgement. Rule 63(2) thereafter provides that:-.

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

The test for rescission of judgement under rule 63 is that the applicant has to establish ‘good and sufficient cause’ for the relief he seeks. The onus is on the applicant. Though the term ‘good and sufficient cause’ is not defined in the rules, what constitutes good and sufficient cause has been alluded to in a plethora of authorities. The authorities have also set out factors which court should take into account in determining whether or not applicant has discharged the onus. These include:-

i). The reasonableness of the explanation for the default;

ii). The bona fides of the application to rescind the judgement; and

iii) The bona fides of the defence on the merits of the case and the applicants 	prospects of success on the merits.

These factors are to be taken cumulatively and in conjunction with one another in deciding whether to grant the indulgence or not. See Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd & another S-16/86 at p2-3.

It is pertinent to note that this court enjoys wide discretion in deciding whether to set aside a judgement granted in default.

In Dewaras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S) court held that:-

“… the High Court Rules require only good and sufficient cause’ as the basis of rescission of judgment. This gives the court a wide discretion and it is not possible to provide an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. Even where there has been wilful default there may still sometimes be good and sufficient cause for granting rescission. The good and sufficient cause, for instance, might arise from the motive behind the default.”

In the case of Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007(2)ZLR 89(S) at 95 A-B it was stated with clarity that the terms “sufficient cause” or “good cause” entails that in principle and in the long practice of our courts two elements should be proved which are;

that the party seeking the rescission of a judgement must present a reasonable and acceptable explanation for his default and

on the merits such a party must have a bona fide defence which, prima facie carries some prospects of success.

In casu, the applicants’ explanation for the default was to the effect that they had been advised by their legal practitioner that respondent had withdrawn the action. To buttress that stance the letter from their legal practitioner was attached to the application and the legal practitioner deposed to an affidavit in that regard.

The respondent’s counsel, on the other hand, contended that that explanation was grossly unreasonable. Counsel also contended that it was not true that applicants were advised by their legal practitioners not to attend court as respondent had withdrawn his claim. Counsel did not, however, refute the fact that applicants received a letter from their legal practitioners dated 12 January 2018, already referred to above, in which, inter alia , applicants legal practitioner wrote that;-

“Further to our previous letter, we advise that Portion Muvirimi’s lawyers have filed a notice of withdrawal for the above matter. They have withdrawn the entire claim as stated in the withdrawal. We have written to them acknowledging the withdrawal and we will also pursue the issue of costs…”

In rejecting that applicants acted out of advice as stated in the above letter, respondent’s counsel averred that the notice of withdrawal must have been attached or enclosed in that letter and the applicants should have noted that the withdrawal was against the third defendant only. Unfortunately this is Counsel’s summation not supported by anything. The letter itself does not state that the notice of withdrawal was attached or enclosed in the correspondence to applicants. In the absence of any positive indication that applicants were in fact sent the notice of withdrawal, it is only fair and just to give them the benefit of the doubt.

It is clear from the content of the above letter that the legal practitioner informed applicants of the withdrawal and went on to indicate that he would be pursuing the issue of costs.

The respondent’s Counsel confirmed receiving a letter from applicants’ legal practitioner in which the issue of costs was being pursued. A reading of that letter dated 12 January 2018 to respondent’s legal practitioner gives the impression that applicants’ legal practitioner had misunderstood the notice of withdrawal and was now under the misconception that the withdrawal pertained to the entire claim  and only the issue of  the quantum of wasted costs remained.  That letter reads as follows:

“We confirm receipt of your Notice od Assumption of Agency as well as the Notice of Withdrawal in respect of this matter.

Accordingly, we will serve you with our bill within the next five (5) days.”

It is evident that the letter is in tandem with the letter to applicants in which they were advised that the matter had been withdrawn and only the issue of costs was to be pursued.

The legal practitioner in question confirmed the nature of his advice to applicants when he stated as follows in paragraph 6 of his supporting affidavit:

“Further, I would like to unreservedly accept blame in the mistaken belief that the matter had been withdrawn against all the Applicants and I would like to confirm that I am the one who advised the Applicants that they would not need to appear for the trial. I have since seen the error of my ways and would also like to extend my apologies to this Honourable Court for such a glaring error that would not be expected of a legal practitioner of my standing and experience.”

I am inclined to accept that, from a reading of the correspondence referred to in this application and other communication between the legal practitioners for the parties, there is truth in the applicants’ explanation. They were misled by their legal practitioner who upon receipt of a notice of withdrawal and without careful scrutiny of the aforesaid notice misconstrued the notice of withdrawal as affecting all the parties and advised applicants accordingly.

The respondent also contended that even if the applicants may have been so advised but they still had a counter claim to pursue and so they should have attended court. That stance ignores the fact that in the 12th January letter to applicants, applicants’ counsel had made it clear that there would be no need to pursue the counter claim in view of the withdrawal. I am of the view that applicants’ explanation in the circumstances is reasonable.

The mistake made by applicants’ counsel is one that respondent’s counsel ought to have noted as well in that in acknowledging receipt of the notice of withdrawal applicants counsel indicated that they will be serving respondent’s legal practitioners with a bill of costs.

The bill of costs could only have been so because counsel mistakenly believed that the matter had been withdrawn against all the defendants. This should have alerted respondent’s counsel that his colleague on the other side may have misunderstood the notice of withdrawal despite that it stated that it pertained to the third defendant. It was in this respect that applicants’ counsel argued that had the respondent’s legal practitioner alerted him upon receipt of that letter the default could probably have been avoided.

Instances of apparent mistakes are not uncommon and it is imperative upon noting such apparent mistake or misunderstanding of a process for a legal practitioner to alert his peer on the other side. In Whitaker v Roos & another 1911TPD 1092 @ 1102-1103, wesley J aptly stated that”:

“The object of the court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, forfeit is claimed.”

Thus the sight of a mistake or oversight by a fellow legal practitioner should not lead to forfeit but to drawing the attention of the legal practitioner to the mistake or apparent oversight.

In Founders Building Society v Dalib (Pvt) & Others 1998 (1) ZLR 526(H) at 528 gillespie J remarked that:

“Many attorneys seeing an oversight or irregularity of this nature from a colleague whom they regard as peer, would take the trouble and courtesy to address to the errant opposite number a memorandum drawing the attention to the cause of complaint and calling upon him or her, to regularise the matter. Such an attitude is to be expected, not from just a few, but from all, legal practitioners, towards all the other legal practitioners. It is part of the duty that a legal practitioner has to other lawyers. The duty is put in a nutshell:

‘Every legal practitioner has a duty to behave fairly and honestly towards other legal practitioners. The legal practitioner on the other side is only trying to do his best for his client and it is desirable that legal practitioners co-operate as much as possible.”

In casu, had the respondent’s legal practitioner taken heed of the above remarks, he would have brought to the attention of applicant’s legal practitioners the fact that the withdrawal was only against third defendant, particularly after receiving the letter stating that a bill of costs was being prepared. Instead of taking the expected ethical route respondent’s legal practitioner opted to capitalise on his peer’s error and obtained default judgement. The flurry of communication and correspondence that followed the events of 29 January 2018 bear testimony to the need for courtesy amongst legal practitioners. As a consequence of lack of such courtesy litigation between the parties has dragged on drawing on their meagre resources with no end in sight. Such costs could have been avoided had the legal practitioners taken the courtesy route and not opted to snatch a judgement despite it being apparent that the other party was intent on defending the matter but had only misunderstood the extent of the notice of withdrawal.

It is of great concern that this court is flooded with applications, such as this one, where a simple courtesy call to the other legal practitioner could have resulted in the mistake or omission being attended to. It is high time legal practitioners reflected on their duty to their clients and court from a professional viewpoint. Legal practitioners must avoid taking litigation as a game were if a mistake is made, forfeit is claimed. The need to have the real dispute between the parties resolved expeditiously and at minimal cost should never be lost. It is only the resolution of the real dispute that brings litigation to finality without the risk of off shoots of multiplicity of   applications that have the effect of prolonging the determination of the real dispute. The hallmark of litigation must be to do justice on substantive issues between litigants and not to outwit each other on slipups or mistakes that may befall either party but with no effect of bringing finality to the real dispute.

I am of the view that, given the circumstances of this case, the explanation of the default is reasonable.

As regards the bona fides of the application, I am of the view that the explanation proffered shows also that the application is bona fide. Applicants have always been intent on defending the matter and did not show any mala fides in such defence. The defence is not merely for purposes of frustrating the respondent.

The next requirement which must be considered together with the above in determining whether a good and sufficient cause has been established is that of the bona fide defence on the merits.

The respondents claim was based on the delict of malicious prosecution.  There is no dispute that the respondent was arrested and detained by the police as a result of a report made by the second applicant. He suffered further detention when the matter first appeared at court.

The applicants’ defence was to the effect that they cannot be held liable for damages for unlawful arrest and detention as they lacked the capacity to influence judicial proceedings. In that regard all they did was to complain to the police about respondent’s conduct which they deemed to be in contempt of a court order. The applicants alluded to their plea to the main matter as confirmation of their defence whereby if they were believed, respondent would not succeed in his claim. The applicants also alluded to lack of any malice in reporting to the police.

The onus is on the applicants to set out such facts as would show a prima facie defence. To succeed an applicant must set out averments which if established at the trial, would entitle him to the relief sought. He need not deal fully with the merits of the case, and produce evidence that the probabilities were actually in his favour.

See  Herbstein and van Winsen, The Civil Practice of the Superior Courts of South Africa,3rd ed at 371 and Roland & Another v McDonnell 1986 (2) ZLR 216 (S).

In determining whether such prima facie defence has been established it is important to have regard to the claim. In casu, for a delict of malicious prosecution to be sustained there are certain basic requirements. The averments made must address those requirements.

Though the applicants seemed not to appreciate the distinction between malicious prosecution and wrongful arrest, what is clear to me is that they raised the lack of malice in reporting respondent to the police and argued that they were just doing their duty as complainants who had been aggrieved by respondent’s conduct. It was thus upon the arresting police officer to formulate his own opinion whether or not to arrest the respondent.

The requirements for wrongful arrest and detention which applicants seemed to believe respondent was suing on involves wrongful deprivation of liberty. This is the arrest and detention of a person without legal justification. Where the arrest is effected by police, one can only be liable if it is established that the police acted on his directive, order or command. Liability in such cases is strict: thus a party is not required to show that the person causing the arrest was at fault or that he was aware that the arrest was unlawful.

Where a defendant merely furnishes a police officer with information on the strength of which the latter decides to arrest the plaintiff, the defendant does not effect the arrest. The discretion to arrest lies with the police officer; whether to arrest or not. In such instance defendant is not liable for wrongful arrest. One would have to show that the defendant did more than just furnishing the information.

In order to succeed in an action for malicious prosecution, on the other hand, plaintiff would have to show that:-

the defendant set the law in motion(instigated or instituted the prosecution) against the plaintiff;

at the time he instigated or instituted the legal proceedings the defendant had no reasonable and probable cause to do so;

the defendant was actuated by express or implied malice to set the law in motion against the plaintiff;

that the prosecution terminated in his favour; and

he suffered damages as a result of the prosecution.

As in the case of wrongful arrest, where a defendant merely furnishes a police officer with information or facts as a result of which proceedings are instituted, this is insufficient to sustain a cause of action. The plaintiff must allege and prove that the defendant actually instigated or instituted the proceedings.

The test in both instances is whether the defendant did more than tell the police the facts and leave them to act on their own judgement.

See Munyukwi v Tsanga 2014(1) ZLR 271(H); Zuvarimwe & Another v Naran & Another 2014 (1) ZLR 449 (H) and Econet Wireless (Pvt) Ltd v Sanangura 2013 (1) ZLR 401(S).

In casu, applicants alluded to the fact that they merely reported to the police and it was up to the police to arrest the respondent or not. They did not order or direct or command the police to arrest the respondent. The nature of the debate in this regard is on the nature of report made and whether it amounted to directing the police to arrest without police exercising their own judgment in the matter. That is a triable issue and cannot be resolved on the papers filed of record.

It is thus in the interest of justice that applicants be given the opportunity to present their full defence to the claim.

Another aspect that applicants alluded to as requiring their participation pertained to the issue of quantification of damages. It is a fact that evidence needed to be led in the assessment of appropriate quantum of damages. I did not hear respondent to contest this aspect as the matter was in fact referred to the unopposed roll for respondent to prove the extent of damages he suffered. In such instances justice will be better served and court better informed if applicants were allowed to contest even on the quantum of damages to be awarded should they be found liable.

I thus conclude that the applicants have established good and sufficient cause for the rescission of the default judgement granted on the 29th January 2018.

As regard the issue of costs both parties asked for costs on the higher scale in the event of their success.  As the applicants have succeeded in having the default judgement rescinded they deserve to be awarded costs. The respondent’s attitude in opposing the application even when it was clear that this was a matter of the applicants’ legal practitioner misconstruing the notice of withdrawal and not a case of utter disdain or disregard of the rules, was uncalled for. The respondent must thus be ordered to bear the costs of this application. Costs will however be on the ordinary scale as I found no justification for costs on the higher scale

Accordingly it is hereby ordered that:

The Default Judgement granted in favour of the Respondent against the Applicants in Case number HC 6147/15 on the 29th January 2018 be and is hereby rescinded.

The applicants’ Plea and Counter claim in case number HC 6147/15 be and is hereby reinstated.

The respondent shall bear the costs of this application on the ordinary scale.

Hove & Associates, Applicants’ legal practitioners

Muhlekiwa Legal Practice, respondent’s legal practitioners