The Attorney General and Musakwa Billiard N.O v Newman Chiadzwa

### Preamble
1
HH287-13
HC 7370/11
Ref Case HC 3069/11
THE ATTORNEY GENERAL
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THE ATTORNEY GENERAL
and
MUSAKWA BILLIARD N.O
versus
NEWMAN CHIADZWA

HIGH COURT OF ZIMBABWE
CHIGUMBA J
Harare, 29 July 2013, 18 September 2013

Opposed application

Mr. A Masamha, for applicants
Mr. T. Mpofu, for respondent

CHIGUMBA J: This is an application for rescission of default judgment brought in terms of Order 9 rule 63 of the High Court Rules 1971. The application is opposed. The relief sought is that:

1. The default judgment entered in case number HC3069/10 be and is hereby rescinded.
2. It is hereby ordered that the application for review in case number HC3069/10 be argued and decided on the merits.

At the hearing of the matter, on 29 July 2013, I dismissed the application, ex tempore, with no order as to costs, on a preliminary point. Counsel for the applicant has now written to me and requested that I furnish detailed reasons for my judgment. These are they:

It is necessary to lay out the background to the application before me, if only to illustrate the protracted nature of the litigation that the parties have previously been involved in. The 1st applicant is the Attorney General of Zimbabwe who is bringing these proceedings in an official capacity, as the duly authorized entity that brought criminal proceedings against the respondent in Mutare under CRB 1253/09. The second applicant is a Provincial Magistrate based in Mutare, who presided over the criminal proceedings. Respondent was convicted by the second applicant, on 3 March 2010, of a charge of contravening section 3 of the Precious Stones Trade Act [Cap
 21: 06]. He was sentenced to undergo five years imprisonment and to pay a fine of US$132 764.00. He appealed against both conviction and sentence, under case number CA 277/10.

On 8 March 2010, respondent applied for bail pending appeal before the second applicant, who dismissed the application on 10 March 2010, for lack of merit. Respondent appealed against the second applicant’s refusal to admit him to bail pending appeal to this court. On 26 March 2010, respondent’s appeal was dismissed by this court, again for lack of merit. On 10 March 2010, when his application for bail pending appeal, was dismissed, respondent filed an application for review of the proceedings before the second applicant. He subsequently approached this court and applied for bail pending review under case number B 540/10. On 18 May 2010, respondent’s application for bail pending review was dismissed by this court. The reason for dismissal was lack of prospects of success on review.

It appears that respondent filed yet another application for review on 19 August 2010 under case number HC3069/10, which is similar to the initial application filed on 10 May 2010, for reasons which are not quite clear from the papers before me. It is common cause that the applicants, failed to file opposing affidavits within the time periods stipulated by the rules of this court in both applications for review. From the papers before me, it appears that, attempts were made, on or about 20 September 2010 to file an application for the upliftment of the automatic bar operating against the applicants in terms of the rules of this court.

Unfortunately, this proved too little too late. Respondent vigorously opposed the application for the upliftment of the bar. There is mention of out of court negotiations between the parties to consent to the upliftment of the bar operating against the applicants. It appears that the respondent caused some confusion in the proceedings by changing legal practitioners, hiring and firing them, and re-hiring them, in a haphazard manner. One firm of legal practitioners, Messrs Chikumbirike & Associates, purported to consent to the upliftment of the bar on behalf of Respondent on 27 October 2010 in a letter. Unbeknown to the applicants, another firm of legal practitioners, Messrs Chiutsi & Associates, subsequently set the matter down on the unopposed roll before this court on 29 June 2011. There was no notice given to the applicants who were, on the face of it, barred.

The respondent’s application for review was heard unopposed by this court, which then quashed the proceedings of the second applicant under Mutare CRB 1253/09 and set aside the both the conviction and the sentence. It is that judgment, granted on the unopposed the roll, on 29 June 2011, that the applicants now seek to have set aside. The respondent opposed the application for rescission of judgment. He raised a preliminary point, that the deponent to the founding affidavit Mr. Masamha, an officer of the first applicant, had no legal basis to depose to that affidavit on behalf of the second applicant, a magistrate. Respondent contended that no explanation was preferred as to why second applicant, who has consistently been cited as a party to the proceedings, has not deposed to an affidavit in his own name. Respondent contends that applicants did not even file a notice of opposition to the application for review, which resulted in their being barred, when the time within which to do so expired.

Respondent vehemently denied that applicants had ever filed a formal application for the upliftment of the automatic bar which was operating against them in the application for review. Respondents also denied the assertion that consent to the upliftment of the bar was ever properly filed in terms of the rules of this court. Respondent alleged that the deponent to the founding affidavit has developed an unprofessional interest in his continued incarceration. Lastly, respondent contended that, applicants have no prospects of success in their application for review, even if the judgment of 29 June 2011 is rescinded.

Mr. Masamha for the 1st applicant maintained that it was proper for him to depose to the founding affidavit and incorporate instructions from the second applicant. He maintained further, that consent to the upliftment of the bar had been correctly applied for and filed in terms of the rules of this court.

In his heads of argument, respondent submitted that he had been arrested on 14 October 2006 after being found in possession of industrial diamonds. He submitted further, that he was charged with contravening section 3(1) as read with section 2 of the Precious Stones and Trade Act [Cap 20:06]. Respondent contended that, at the time of his arrest, and prosecution, possession of industrial diamonds was not an offence in terms of that act. The definition of “precious stones” at that time was:

“…including rough or uncut diamonds, or any substance which is in terms of section 2, declared to be precious stones for purposes of the act”.


Respondent contended that the definition of “precious stones” was subsequently amended by SI 10/2007 to include industrial diamonds. SI 10/2007 did not apply retrospectively. He was convicted on 3 March 2010, and, as a result of an application for review had the conviction and sentence set aside on 29 June 2011. Respondent submitted that the applicant ought to have made an application in terms of section 44(6) of the High Court Act [Cap 7: 06] which provides that where the Attorney General is dissatisfied with the judgment of the High Court in a criminal matter, whether in the exercise of its original, appellate jurisdiction or on review, he may, with leave appeal against such a judgment to the Supreme court. According to the respondent an application for rescission, in terms of rule 63 was inappropriate in the circumstances of this case, because applicants could not discharge the onus incumbent upon them to show that there was “good and sufficient cause” for the judgment of 29 June 2011 to be set aside.

Respondent filed supplementary heads of argument, in which he made reference to an order made by the Supreme Court, with the consent of the applicant, under case number SC 251/11 on 28 September 2011, where it was declared that:

1. The applicant (respondent herein):
   (i) Is not entitled to the return or possession of the diamonds the subject of this application.
   (ii) Has a legal interest in the diamonds in question

The respondent had appealed against an order of this court in which his claim that the diamonds confiscated by the state in the criminal proceedings against him be returned to him had been dismissed by this court. His appeal succeeded, the judgment of this court was set aside. The Supreme Court then substituted the judgment of this court, with the declaratur set out above. The pleadings took the case no further than this.

At the hearing of the matter, counsel for the respondent raised a point in limine, that the effect of that judgment of the Supreme Court was to confirm that respondent, could not, at the time that he was charged and convicted of illegal possession of industrial diamonds, have been guilty of that offence because it was perfectly legal at that time to own or possess industrial diamonds. It was contended on behalf of the respondent, that, by implication, rescinding the judgment of 29 June 2011 would reinstate respondent’s conviction and sentence, and put him back in an invidious position of being wrongfully convicted for an offence that did not exist at the time that he was arrested and charged with it.. For that reason the court was urged to dismiss the application before it.

The second point in limine raised pertained to the provisions of section 44(6) of the High Court Act, [Cap 7:06] that the procedure adopted by the applicants is improper; they ought to have sought leave to appeal and appealed against the judgment of 29 June 2011. Counsel for the applicants submitted that both preliminary points were misplaced. It was his view that the order of the Supreme Court referred to have no effect on the application before the court. Counsel for the applicants insisted that the applicants were properly before the court in terms of r 63 of the rules of this court.

The court then directed the parties to address it specifically on whether the applicants were properly before it in terms of r 63(1), more particularly in light of how that rule has been interpreted by the courts. No meaningful submissions were made by the applicants’ counsel. Counsel for the respondent made reference to the fact that an application of this nature is required to be made within a month of the date when the applicant acquires knowledge of the default judgment.

The law that governs applications in terms of r 63 of the rules of this court is as follows: Order 9, r 63 provides that:

“63. Court may set aside judgment given in default
(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 to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just”.

It is necessary that the court satisfies itself that an applicant for the relief sought in terms of r 63 has complied with the first hurdle set out in r 63(1), before proceeding to consider the merits of the matter, whether the applicant has established “good and sufficient cause”, in terms of r 63(2). The question that the court must determine is whether application for rescission of default judgment has been made “not later than one month after knowledge of the judgment”. In Sibanda v Ntini SC 74/02, 2002 ZLR (1) @ 266 MALABA JA, stated that:

“It is clear from r63(2) that before considering the question whether or not the application contains a “good and sufficient cause” for it to exercise the wide discretion conferred upon it in favor of the applicant, the court must be satisfied that the application has been made (that is set down for hearing and not just filed with the registrar) within one month of the date when the applicant had knowledge of the default judgment or that an application for condonation of non compliance with r63(1) has been made or granted”.

MALABA JA cited with approval the observation made by SANDURA JA in the case of Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) @ 251 C-E

“In terms of r 63(1), a defendant against whom a default judgment has been granted has a period of one month; from the time he becomes aware of the judgment, within which to file an application for the rescission of that judgment. If he does not make the application within that period but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application. This should be done as soon as he realizes that he has not complied with the rule.

If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for the rescission of the default judgment, but also for the delay in seeking condonation”. See Saloojee & Anor v Minister of Community Development 1965(2) SA 135 @ 138H

This court has followed the test laid down in Sibanda v Ntini in the case of SAI Enterprises v Girdle Enterprises (Pvt) Ltd 2009(1) ZLR 352

It was held that:

“In terms of r63(1) of the High Court Rules 1971, a party against whom a default judgment has been given 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. The making of an application for rescission of a default judgment occurs when the application is set down and heard, not merely when it is filed with the registrar. of the court. Consequently, if an application for rescission of judgment is not heard and determined within thirty days of the of the date on which the applicant had knowledge of the default judgment, the applicant must first seek an indulgence or condonation before the application for rescission is heard, no matter that there is no practical way that such an application can be filed, heard and determined within a thirty day period and delay in set down beyond the thirty day period is beyond the applicant’s control”.


My reading of these cases is that the test laid down in *Viking Woodwork supra* was subsequently clarified and expanded in *Ntini v Sibanda supra*. Initially the test required that:

1. Applicants file the application for rescission of judgment within a period of one month from the date of awareness of the judgment.
2. If applicant fails to apply for rescission of judgment within one month of becoming aware of the judgment, an application for condonation of non compliance with r 63(1) must be made as soon as applicant becomes aware of the non-compliance.
3. *Sibanda v Ntini* supra added a third requirement, that the application for rescission of judgment must not only be made within one month of the date of becoming aware of the judgment, it must be “set down for hearing and not just filed with the registrar”, within that period.

With all due respect to the court in *SAI Enterprises, supra* the particular circumstances of that case may have necessitated that the court take the test further than what the Supreme Court stated in *Sibanda v Ntini supra*. The court in *SAI Enterprises, supra* held that an application for rescission of default judgment, “… occurs when the application is set down and heard, not merely when it is filed with the registrar of the court”. (My underlining for emphasis) The Supreme Court, in *Sibanda v Ntini (supra)*, held that “…the court must be satisfied that the application has been made (that is set down for hearing and not just filed with the registrar) within one month of the date when the applicant had knowledge of the default judgment”.

It is my view that setting a matter down for hearing consists of filing an application for allocation of a date for hearing with the office of the registrar in the prescribed format in terms of the rules, and receiving notification from the office of the registrar, also in the duly prescribed format, that the matter has been set down for hearing on a certain date, at a certain time, in a certain court, and before a specific judge. The matter will then be “heard” on the prescribed date. The “hearing may take a few minutes, a few hours, a few days, and depending on the complexity of the matter, even a few weeks or months. In my view there is a distinction between setting a matter down for hearing, and the hearing of the matter. In a nutshell, setting a matter down simply means being allocated with a date when the matter is expected to be heard. Hearing of a matter consists of appearing before the judge, and making submissions, or adducing evidence. The hearing of a matter does not amount to its determination. A matter is determined when the court delivers its judgment.

In my opinion, *SAI Enterprises is* distinguishable from *Sibanda v Ntini* for the reason that it goes further than the requirement of merely setting a matter down for hearing within one month of the date of knowledge of the judgment. It talks about a matter being set down and heard within one month. I will associate myself with that judgment, but only to the extent that it applies the test set out in *Sibanda v Ntini supra*, which is binding on the High Court until expressly set aside by the Supreme Court. To the extent that the judgment in *SAI Enterprises* requires that an application for rescission of default judgment be filed with the registrar, set down for hearing, and actually heard, all within a period of one month of the date of knowledge of the judgment, I am not persuaded to follow my brother judge down that path.

In coming to this conclusion, I am mindful of the submissions placed before my brother judge that the rules of this court require that all applications under their auspices comply with Order 32 rr226(1),230, 231,232 and 234. These rules all prescribe time limits which make it impossible for an opposed application to be filed, served, opposed to, answered to, heads filed and responded to, and set down within thirty days. It is common cause that the time periods referred to in Order 32 collectively, exceed thirty days. This renders the inevitable delay beyond an applicant’s control. The Supreme Court was, however, alive to these sentiments when it followed *Theunissen v Payne 1940 TPD 680* in *Sibanda v Ntini supra*. It found that an application is made when it is set down and not just filed with the Registrar, within thirty days of the date of knowledge of the judgment. The court did not go further to find that the making of an application is filing it, setting it down, and hearing it. (my underlining for emphasis)

When regard is had to the circumstances of this matter, nowhere in the founding affidavit, does the first applicant allude to the date when it became aware of the date of the judgment that it seeks to have set aside. It is common cause that the application before the court, for rescission of judgment, was filed of record on 28 July 2011. Assuming that applicants acquired knowledge of the judgment on 31 June 2011 (within 2 days of 28 June 2011, the date of judgment), then, in terms of r 63, this application ought to have been filed by no later than 30 July 2011. The application before the court was filed of record on 28 July 2011. That brings it within the time period stipulated in r 63.

However, the application was subsequently set down for hearing, on 29 July 2013. This is a full two years, or twenty four months, after the period within which the application ought to have not only been filed, but set down for hearing (Sibanda v Nitini supra) It is common cause, that no application has been made, for condonation of non compliance with the provisions of r 63 (1), in relation to the failure to file and set down the application for hearing, within the one month stipulated period. Further, in my view, by failing to make an averment in the founding affidavit as to the date of knowledge of the judgment, applicants fall foul of the requirements of r 63 (Viking Woodwork supra).

There is nothing in the wording of r 63(1), or in any the relevant cases that have interpreted it, which suggests that this court has additional discretion, to authorize a departure from the provisions of r 63(1), by relying on the provisions of r 4C, as suggested by counsel for the applicants. The only remedy available to an applicant who has fallen foul to the provisions of r 63 (1), is to apply for condonation as soon as the applicant realizes that it has not complied with the rule. Even then, applicant will have to provide an acceptable explanation, not only for the delay in making the application for rescission of judgment, but also for the delay in seeking condonation. Viking Woodwork (supra).

It is my view that, the import of the case law that has been cited above is that, a court that is seized with an application for rescission of default judgment, in terms of r 63(1) must first satisfy itself that the thirty day time limit within which to file and set it down for hearing, has been complied with, before dealing with the merits of the application. The court must also satisfy itself that an averment has been made, in the founding affidavit to the application, which constitutes prima facie evidence of the date when the applicant became aware of the judgment that is sought to be set aside. Failure to make this averment renders the application baseless, and without foundation, and throws it outside the ambit of r 63 (1). For these reasons, I will not consider the merits of this application, because I have found that the applicants did not comply with the provisions of r 63 (1). The applicants are therefore not properly before the court. For the same reasons, I decline to consider the two preliminary points raised. Suffice is to say, applicants not being properly before me, and not having applied for condonation of their failure to adhere to the rules of this court, are not entitled to a determination of any issue, until they purge their non-compliance with the provisions of r 63(1) of the of this court.

The application is dismissed with no order as to costs, for these reasons.

Attorney General, applicants’ counsel
P. Chiutsi legal practitioners, respondent’s legal practitioners
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