Victor Zvobgo and Linia Madzinga Zvobgo v Peniya Penelope Jamusi

### Preamble
1
HH 294-12
HC 6167/09
REF: HC 2173/08
REF: HC 8577/04
REF: HC 776/09
---------




VICTOR ZVOBGO

and

LINIA MADZINGA ZVOBGO

versus

PENIYA PENELOPE JAMUSI

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 12 January 2011 and 30 May 2012

and 18 July 2012

Opposed Application

V Mkwachari,	for the applicant

C Nyika, for the respondent

HUNGWE J:	The applicants seek an order in the following terms:

That the default judgment granted against the first and second applicant in case number HC 2173/08 on 19 November 2009 be and is hereby set aside.

That the first and second applicants’ notice of opposition and heads of argument be and are hereby reinstated.

The Registrar of the High Court be and is hereby ordered to set down the matter on the opposed roll.

That the respondent shall pay the costs of suit.

The background of the matter is that the applicants are involved in on-going litigation with the respondent. The main matter, HC 2173/08, to which the present application for rescission relates was scheduled to be heard on 19 November 2009. The applicants, together with their legal practitioner, did not make an appearance. No explanation was tendered on behalf of both the applicants and their legal practitioner at the hearing. The respondent sought and obtained judgment by default against the applicants in that main matter. The applicants’ legal practitioner later learnt of the judgment against his clients when he made follow-up on his default with legal practitioners for the respondents. When he engaged the respondent’s legal practitioners in order to obtain a rescission by consent, he was unsuccessful. He did not get the co-operation of the respondent or her legal practitioners. He then deposed to an affidavit in support of an application for rescission by the applicants.

The critical portion of the affidavit is the explanation he proffers for his default. He states:

“8.	 Unexpectedly on 19 November 2009 at around 7:00 am as I was preparing to go and get public transport my ex-girlfriend, Debra Chabwanda who I had broken up with a month earlier arrived at my place of residence without warning in the company of four of her relatives. Their relatives advised me that I’d come to give me “my wife” meaning the ex-girl-friend.  They threatened to beat me up if I did not take her in and accept that she should live with me as husband and wife as I had sexual relations with her during the time of our relationship.  I refused to take her in and we argued.

9.	That the cause of the argument with my ex-girlfriend and her relatives advanced towards me threatening to beat me up while my ex-girlfriend insisted that she had come to stay with me for good because I had deflowered her. The relatives chased me and in the process I left my cell phone, the first and second applicants’ fighting behind to beat of analysis it is that I needed for the day at work as I ran away for my dear life.”

He then narrates how this had confused him to the extent that he went to consult a relative at a bank in town before pitching up at court well after the matter had been called and dealt with in his absence. Between 23 November 2009 and 3 December 2009 he had tried in vain to persuade the respondent’s legal practitioners to consent to rescission without success. Since he was entirely to blame for the applicants’ default, he actively engaged the other side with a view to obtain a less costly order for rescission. This was not to be.

He prays that the court finds on these facts that he was not in wilful default.

About the applicants’ defence in the main case, the applicants’ legal practitioner states that the defence to the claim has bright prospects of success. HC 2173/08 concerns the confusion arising from a typographical error. Instead of typing the party’s name as “Benhilda Zhanje”, the Registrar typed “Benhilda Penelope Zhanje”.

The respondent opposed this application on the ground that the reasons set out in the founding affidavit were not the same reasons given by the deponent to the founding affidavit when he approached the respondent’s legal practitioners seeking their consent to rescission.

I need only point out 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 on whether or not to grant rescission. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (SC) it was held that even where there has been wilful default, there still may be good and sufficient cause for granting rescission.

The facts relied upon by the applicants’ show, in my view, good and sufficient cause for granting the indulgence of rescission for two reasons. First, the applicants themselves did not show up at court upon an assurance from their legal practitioner that only his appearance was necessary. He had taken his papers home so as to proceed direct to court to argue the matter on clients’ behalf the next morning. The embarrassing episode involving applicants’ legal practitioner was something neither the applicants nor their legal practitioner had foreseen, let alone its impact on their matter on the morning of 19 November 2009. Upon failing to secure the co-operation of the legal practitioners representing the respondent, he did not waste time to file the present application.

In light of all this I am satisfied that the applicants have made a good case for the grant of the indulgence of rescission.

Regarding costs however, I am of the view that because of the fact that this particular application is attributable to the legal practitioner’s manner of executing his mandate, I will not grant costs to the applicants but order that the costs be costs in the main case.

In the result I make the following order:

That the default judgment granted against the first and second applicant in case number HC 2173/08 on 19 November 2009 be and is hereby set aside.

That the first and second applicants’ notice of opposition and heads of argument be and are hereby reinstated.

The Registrar of the High Court be and is ordered to set down the matter on the opposed roll.

That the costs shall be costs in the main cause.

T H Chitapi & Associates, applicants’ legal practitioners

Chikumbirike & Associates, respondents’ legal practitioners