Tendai Chinyani and Terrance Dick and Frank Mupfeki and Andrew Mufanebadza and Sande Chinomona and Rariro Chidavaenzi and Simbarashe Nyenza and Registrar of Companies v Nomsa Patience Hove and Gift Kanosvamhira and Knowledge Munetsi and Side Electrical (Pvt) Ltd

### Preamble
1
HH822-18
HC 3794/18
---------


TENDAI CHINYANI

and

TERRANCE DICK

and

FRANK MUPFEKI

and

ANDREW MUFANEBADZA

and

SANDE CHINOMONA

and

RARIRO CHIDAVAENZI

and

SIMBARASHE NYENZA

and

REGISTRAR OF COMPANIES

versus

NOMSA PATIENCE HOVE

and

GIFT KANOSVAMHIRA

and

KNOWLEDGE MUNETSI

and

SIDE ELECTRICAL (PVT) LTD

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 27 September 2018

Opposed Matter

G.R.J Sithole, for the applicants

A. Muzuva, for the respondents

ZHOU J: This is an opposed application for the setting aside of the judgment given in default of the applicants in case no. HC 6787/17. The judgment was granted on 23 August 2017. The applicants in an affidavit deposed to by the second applicant state that they only became aware of the order on 25 April 2018 when it was served upon them as an annexure to an affidavit in a different case, HC 3556/18. The present application was filed on 26 April 2018.

In addition to responding to the application on the merits the respondents took some objections in limine. The first objection that the application was made out of time appears not to have been persisted with by the respondents, understandably because of the approach taken by the applicants that they became aware of the order on 25 April 2018 but also because the applicants predicated it on r 449, albeit later in the submissions there was an invitation to also consider it as one made in terms of r 63. I will revert to this issue in due course as it is one of the grounds of objection.

The other point taken is that the first, third, fourth, fifth, sixth, seventh and eighth applicants are not properly before the court as they did not depose to any affidavits in this application. As for the eighth applicant, it is clear that it ought to have been cited as a respondent. There is nothing to suggest that the eighth applicant who is the Registrar of companies gave instructions to the applicants legal practitioners to represent it. Mr Sithole conceded this fact. Mr Sithole also conceded that those applicants who did not depose to affidavits are not properly before the court. This means that only the second applicant is before the court.

The second ground of objection is that it is not clear as to whether this application is being made in terms of order 9 r 63 or under r 449. I invited counsel to address me on the merits of the application as well because determination of that point necessarily entails an inquiry into the merits of the case. The matter is obfuscated by the manner in which the application has been presented in the papers filed on behalf of the applicants. The founding affidavit suggests that averments are being made to establish “good and sufficient cause” as required by r 63. There is an attempt to explain the default as well as present the prospects of success in the main case in order, presumably, to establish the bona fides of the defence on the merits. Yet in paragraph 8 of the founding affidavit a statement is then made, completely out of context, that “the judgment was erroneously granted in the absence of a party affected by it”, which would appear to be an attempt to place the application within the ambit of r 449. The inelegant presentation of the papers for the applicant raises questions about the competence of the legal practitioner who prepared them. Mr Muzuwa for the respondent is excused for describing the approach as “kitchen sink” because it shows lack of appreciation of the two distinct procedures for seeking the setting aside of a judgment granted in default of a party which are provided for in the rules. The heads of argument filed on behalf of the applicant declare that the application is being made in terms of r 449. Mr Sithole for the applicants made the alternative contention that the court could still relate to the papers as a r 63 application.

I am prepared to turn a blind eye to the tardiness exhibited in the presentation of this application consider the merits of the matter. This is because the second objection touches on the merits of the case. In order to bring the dispute between the parties to finality, I will therefore consider the merits of the application as presented. Rule 449 (1) allows this court to set aside a judgment or order that was erroneously sought or erroneously granted in the absence of a party affected by it. While there is no doubt that the applicants are affected by the order which was granted in case no. HC 6787/17, there clearly was no error which underpinned the granting of that order. The applicants sought to point to the service of the papers in HC 6787/17 as constituting the error, merely because the seventh applicant had pleaded guilty to and was convicted of an offence arising out of the alteration of papers relating to directorship in the fourth respondent, which directorship is the subject of the dispute between the parties. But there is no denial that the person served who is actually the seventh applicant cited in casu is a responsible person, and that service upon him was proper in terms of the rules. On that account then judgment was clearly not granted in error.

The alternative fall back upon r 63 has its own problems for the applicants. Apart from the fact that in the founding affidavit that cause is not presented in the alternative, upon a consideration of all the factors relevant in establishing good and sufficient cause the application cannot succeed. These factors, as outlined in many cases, are the reasonableness of the explanation for the default , the bona fides of the application to rescind and the bona fides of the defence on the merits which carries some prospects of success. These factors are not considered individually but are taken together and with the application as a whole.

The explanation tendered is that the papers in HC 6787/17 were served upon Simbarashe Nyeza who did not give them to the first to sixth respondents. Significantly, Simbarashe Nyeza is himself the seventh applicant who from a reading of the papers would also have sought to rely on that (i.e his default) as the explanation for the default. He did not file any affidavit to place before the court the facts alleged by the second applicant.

Also, the absence of an affidavit from Simbarashe Nyeza who is meant to be one of the applicants exposes the lack of bona fides of the application.

That there is a dispute about directorship in a company is a matter that would have justified inquiry by the court and in view of the approach in an application for rescission of a default judgment, would have satisfied the requirement of a bona fide defence. But when weighed against the other factors, I am convinced that there would be no good and sufficient cause for this court to grant the application for rescission of judgment. This aspect is so weak that it fails to outweigh the other two factors.

In the result, the application is dismissed with costs.

Machaya & Associates, applicant’s legal practitioners

Madotsa and Partners, respondent’s legal practitioners