Vickie Angeline Rosedale Versus Gerald Chitsa

### Preamble
HH 83-2010
HC 820/10
Xref HC 3003/10
VICKIE ANGELINE ROSEDALE
versus
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VICKIE ANGELINE ROSEDALE
versus
GERALD CHITSA

HIGH COURT OF ZIMBABWE
MAKARAU JP
Harare 13 and 19 May 2010

OPPOSED APPLICATION

Adv T Mpofu for applicant.
Respondent in default.

MAKARAU JP: This is an application for summary judgment.

On 18 January 2010, the plaintiff issued summons out of this court seeking an order evicting the defendant from certain premises situate at number 19 guest Avenue, Alexander Park, Harare. The plaintiff also sought an order compelling the defendant to settle arrear rentals in the sum of US$ 9 500 and holding over damages at the rate of $500-00 per month from the date of summons to date of payment in full. It was the plaintiff’s allegation in the summons that the parties entered into an agreement of lease in terms of which the defendant took occupation of the property in July 2007. It was further alleged that in breach of the lease agreement, the defendant failed to pay rentals with effect from July 2008 giving rise to the claim for arrear rentals. Finally it was alleged that the plaintiff had cancelled the lease agreement and had communicated the fact to the defendant.

The defendant timeously entered an appearance to defend the suit prompting the plaintiff to file this application.

The application for summary judgment was opposed. Instead of filing a notice of opposition though, the defendant filed a filing notice to which was attached an opposing affidavit, a point that Advocate Mpofu used at the hearing of the matter to urge me to find that the application was unopposed. I shall return to this point in some detail in due course.


In opposing the application, the defendant now respondent, alleged that he did not sign the lease agreement, a copy of which was attached to the application. He further denied that he had an obligation to pay rent to the applicant with effect from 1 November 2008 as the parties had concluded an agreement of sale in respect of the same property in July 2007. A copy of the agreement of sale was not attached to the opposing affidavit.

At the hearing of this matter, the respondent who was duly served with a copy of the notice setting this matter down for hearing was not in attendance. Advocate Mpofu urged me to grant a default judgment in the matter in the circumstances.

It is trite that in any hearing, where the respondent is in default of appearance, the court, in its discretion, may enter judgment in favour of the applicant without going into the merits of the matter. In this instance, a few issues exercised my mind to such an extent that I resolved to withhold my discretion to grant a default judgment in favour of the applicant merely on the technical basis that the defendant was in default.

The first issue that exercised my mind was whether or not I could take into account the averments made in the affidavit filed of record by the respondent. Advocate Mpofu argued that I could not as there was no properly filed opposing affidavit before me.

Technically, Advocate Mpofu is correct that an opposing affidavit in application proceedings must be preceded by and must be attached to a notice of opposition. This is stipulated in the rules. (See Rule 233(1) of the High court Rules 1971). It appears to me that the two documents stipulated in the rule must be filed to constitute regular opposition to any application. Any filing that does not comply with the stipulation is clearly a departure from the rules.

It is further trite that it is not every departure from the rules that is fatal. That the rules are subservient to the interests of justice is captured in Rule 4 C of the Rules which not only authorizes the court to condone departures from the rules but explicitly provides that the court may at times direct that the parties depart from the rules, where the interests of justice so demands.

In my view, it is therefore idle for counsel to argue that because there was an apparent departure from the provision of the rules, the resultant pleading is a nullity and must be taken as if it was not filed. It is my further view in this regard that for a departure from the rules to have that effect, the affected party must proceed to show that the departure is so prejudicial to them that it detracts from the interests of justice.

In *casu*, the substantive document, being the opposing affidavit was properly filed. The notice of opposition, although necessary in terms of the rules, hardly has any content that assists in the determination of the matter. It merely serves to inform the court and the other side that the respondent intends to oppose the application. Its omission is hardly grievous to the applicant’s case and detracts little if anything from the applicant’s right to be informed of the defence proffered by the respondent.

On the basis of the foregoing, I would condone the departure from the rules by the respondent and hold that his notice of opposition is properly filed before me.

In the alternative, Advocate Mpofu has argued that in the event that I find that there is validly filed opposition before me, then I must find that the defendant has not discharged the onus on him to show a prima facie defence to the claim raised against him by the applicant, which is essentially a vindicatory action.

I cannot agree.

The test to be employed in deciding whether or not to grant summary judgment is well settled. It hardly needs any authority. The defendant resisting an application for summary judgment bears one of the lightest burdens in our civil practice. All that such a defendant has to do is to set out facts which if he or she can prove at the trial, will entitle them to succeed. Such facts need not be verified, unlike the plaintiff’ claim.

In *casu*, I am satisfied that the defendant has set out facts which if he can prove them at the trial of the matter, will entitle him to succeed. He has set up a subsequent agreement of sale in respect of the same property. It is trite that if he can prove the sale agreement, then he can resist eviction from the property for his occupation of the property, the implied position being that the agreement of sale grants him the right to occupy the property prior to transfer.

Advocate Mpofu argued that the respondent has failed to show that the agreement of sale grants him the right to remain in occupation of the property.

I prefer to view the situation from the perspective that the applicant has not shown that her case against the defendant is clearly unanswerable. She did not at all aver to the agreement of sale in her application.
 Her application was not in good faith. It failed to disclose a material fact, that the parties are in another legal relationship that may not have been terminated and in terms of which the respondent may claim possession of the property.

It is my view that it will not be in the interests of justice to grant summary judgment in this matter.

In the result, I make the following order:

1. The application for summary judgment is dismissed.
2. Costs of this application shall be in the cause.

*Sinyoro & Partners*, applicant’s legal practitioners.
*Chinyama & Partners*, respondent’s legal practitioners.
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