Z Mereki V Forrester Estate (Pvt) LTD

### Preamble
HH199/10
HC 2100/09
Z MEREKI
versus
FORRESTER ESTATE (PVT) LTD
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Z MEREKI
versus
FORRESTER ESTATE (PVT) LTD

HIGH COURT ZIMBABWE
MAKONI J
HARARE, 11 February 2010 & 15 September 2010

Mr Kanengoni, for the applicant
P.C. Paul, for the respondent

MAKONI J: The applicant approached this court seeking an order to rescind the order granted by this court on 1 April 2009 in HC 6379/07. He approaches the matter from two fronts. He seeks rescission in terms of r 63 as well as in terms of r 449 of the High Court Rules (1971) (the rules). His basis for seeking the order is that he was not aware that the matter had been set down for a pre-trial conference. He did not receive the correspondence from his legal practitioners advising him of the set down date. He would receive correspondence from his legal practitioners through his son’s garage address. The person who would receive the correspondence left the employ of his son. He did not handover the correspondence to anyone.

The applicant also avers that he has a bona fide defence on the merits on the basis that the respondent has no locus standi to bring a rei vindicatio claim against him. The land in dispute was acquired and ownership now vests in the State.

The applicant also avers that the judgment was erroneously sought and erroneously granted as the proceedings of the pre-trial conference were not done in terms of r 182(11). No oral application was made to strike out the applicant’s plea.

The application is opposed on the basis that the applicant failed to give a reasonable explanation of his default. He did not file a supporting affidavit from his legal practitioners to support his story. The respondent also avers that it did not file a rei vindicatio claim but a claim for damages.

I will first deal with the application in terms of r 63.

Rule 63(2) provides that a court may set aside a default judgment if it is satisfied that there is good and sufficient cause. The factors to be taken into account in considering whether or not there is good and sufficient cause to rescind a judgment have been set out in a number of cases in our jurisdiction. In Roland & Anor v Macdomeli 1986(2) ZLR 216 (SC) at 226 E – F the then learned CHIEF JUSTICE DUMBUTSHENA had this to say:-


“In coming to a final decision one has to ask whether the defendant has shown ‘good and sufficient cause’ within the meaning of r 63 of the High Court Rules. Did the court *a quo* take into account:-

(a) the defendant’s explanation of his default
(b) the *bona fides* of the application to rescind the judgment and
(c) the *bona fides* of the applicant’s defence on the merits of the case, and did the court normally consider these matters in conjunction with each one and cumulatively”.

See also Dewera’s Farm (Pvt) Ltd & Ors v Zimbabwe Bankury Corp Ltd 1998 (1) ZLR 368(5), Stockhil v Griffiths 1992 (1) ZLR 172(5) Songore v Olivine Industries (Pvt) Ltd 1988(2) ZLR 210(5)

I will deal with each of the factors in turn.

Applicant’s explanation for his default

The applicant’s explanation is that he was not aware that the matter had been set down for a pre-trial conference. Mr Paul conceded, in his submissions, that the applicant was not aware of the set down date. He took issue with the fact that the applicant’s legal practitioners should have filed an affidavit to explain their conduct. It was his submission that the legal practitioners did not do enough to bring the date to the attention of the applicant. The issue that then falls for determination is whether the applicants default was wilful. Wilful default was defined in Zimbabwe Banking Corporation v Masendeke 1995(2) ZLR 400(5) at 402C as occurring:-

“When a party, with full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely takes the decision to refrain from appearing”

See also Matambanadzo v Zvidzai Jameson Zvavamwe SC 99/02

It is clear from the above authorities that the applicant’s default cannot be described as wilful. He did not have any knowledge of set down date of the pre-trial conference neither did he have knowledge of the subsequent renunciation of agency by his legal practitioners. He did not take a conscious decision not to attend the pre-trial conference.

In my view, the conduct of the applicant’s legal practitioners is beyond reproach. They did what they could in the circumstances. They directed correspondence to the address provided by the applicant. When they did not receive a response, they proceeded to renounce agency. In my view, once there is a concession that the applicant was not aware of the set down date, that is the end of the enquiry.

The *bona fides* of the application and the *bona fides* of the applicant’s defence on the merits


I agree with the applicant’s counsel’s approach to deal jointly with the above factors as they have a direct bearing on each other.

What constitutes a bona fide defence has been dealt with in Greenberg v Meds Veterinary Laboratories (Pvt) Ltd 1977(2) SA 277 (TPD) (quoted with approval in Roland & Anor supra at 227 D-E), in the following terms:-

“The sole question for decision, therefore, is whether the applicant has a bona fide defence to that application. The onus is on the applicant for rescission to establish that fact. The requisites for success in establishing it were stated in Grant v Plumbers (Pvt) Ltd 1949(2) 470 (O) as:

“It is sufficient if he makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case, and produce evidence that the probabilities were actually in his favour”.

The plaintiff’s (respondent in this matter) claim in HC 6379/07 is that it legitimately carries on farming operations from Frogmore farm. The defendant (applicant in this matter) wrongfully and unlawfully moved his belongings and personnel onto a portion of the farm and wrongfully and unlawfully interfered with the plaintiff’s farming operations. This resulted in the plaintiff suffering damages in the sum of US $38 250-00 which he now prays for.

In his plea, the defendant contends that his actions were lawful as his occupation of the farm was consequential upon an offer letter from the Government of Zimbabwe.

There is a dispute, as between the parties, whether the farm in question has acquired. The applicant contends that is was acquired and as a result the respondent has no locus standi to bring the claim as it is based on a rei vindication claim. The respondent contends that the farm was not acquired and that there are judgments of this court to that effect. In any event the respondent’s claim is not a vindicatory action.

In my view, the applicant has made out a prima facie defence which if established at the trial, would entitle him to the relief applied for. He is putting in issue the legitimacy of the plaintiff to carry on farming activities on the farm. He has also claimed to have moved on the farm legitimately based on the offer letter given to him by Government. These issues need to be ventilated at a full trial. The issue of whether the respondent has the necessary locus standi in judicio to sue the applicant as an occupier is before the Supreme Court in SC 31/08 and SC 163/08. It is a live issue which needs determination.

Having made a finding that the applicant has a bona fide defence, it means that the application is made bona fides.


Rule 449

The applicant submits the that the judgment could be set aside in terms of r 449 as it was erroneously granted in that the provisions of R 182(11)(b) were not followed. The record reflects that no oral or chamber application to strike out the defendant’s defence was made as is provided for in the rules. It can only be inferred that the judge who dealt with the pre-trial conference struck out the applicant’s defence *mero motu*.

Mr *Paul*, who also represented the respondent at the pre-trial conference, conceded that no oral application to strike out the applicant’s defence was made. The concession by Mr *Paul* is very noble as he could have argued otherwise as the applicant was in default.

Rule 182(11) deals with course of action available to the court at pre-trial conference where one party is in default.

It provides:-

“A judge may dismiss a party’s claim or strike out his defence or make such other order as may be appropriate if

(a) the party fails to comply with directions given by a judge in terms of subrule (4), (6), (8) or (10) or with a notice given in terms of subrule (4); and

(b) any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order”.

The rule makes use of the conjunctive ‘and’ between par (a) and (b). What this means is that the situations contemplated in those paragraphs must both be fulfilled in order for the court to validly strike out a defaulting party’s defence.

In *casu* is not in dispute that the applicant failed to comply with a notice given to him in terms of r 182(4). There is a concession from the respondent that it did not make an oral application for the striking out of the defendant’s defence. This suggests that the judge struck off the applicant’s defence *mero motu*. This brings out the issue whether a judge has the power to strike out a defendant’s defence *mero motu*.

An almost similar issue was dealt with in *Sibindi v ARDA* 1994(1) ZLR 284 (S) at 287G-288 A-B. GUBBAY CJ (has he then was) was dealing with a situation in which the court *a quo* had dismissed the plaintiff’s claim when the defendant was in default of appearance at the trial. There was no application before the judge to grant such an order. He had this to say at pp 287G-288A-B;

“It is well established that a superior court has an inherent jurisdiction to dismiss an action. See *Meyer v Meyer* 1948 (1) SA 484 (T) at 487; *Broughton v Manicaland Air Services (Pvt) Ltd* 1972 (1) RLR 350(G) at 352B-C, 1972 (4) SA 458 at 460 A-B; *Schoeman en*
Andere v van Tonder 1979 (1) SA 301 (O) at 304 G-H; Kuiper & Ors v Benson 1984 (1) SA 474 (W) at 476H-477B. But I am unaware of any decision in which that power has been exercised by the court *mero motu* and in favour of a defendant who is in default. Invariably its exercise has followed upon the making of an application and, I believe, correctly so.

An examination of the Rules of the High Court appears to me to support the view I take. They reveal that an action may be dismissed on application by the defendant where the plaintiff has been barred from declaring or making a claim (rule 6); or on the ground that the action is frivolous or vexatious (rule 75); or for non-compliance with an order compelling production of a document (rules 168 and 169(4) or requiring answers to an interrogatory (rule 196). No provision is made for dismissal of an action solely at the instance of the court or judge.

I would add r 182(11) to the rules referred to in the above quotation. It does not provide for a dismissal of an action solely at instance of the court or judge.

I would agree with the applicant that the order to strike out the defendant’s defence was granted in error. In terms of r 449 (1)(a) the court may *inter alia*, upon application of any party affected, rescind an order that was erroneously granted in the absence of any party affected by it. The facts of this case fall squarely within the ambit of R449 (1)(a).

In the result, I will make the following order.

1. The judgement of this court granted on 1 April 2009 be and is hereby rescinded.
2. The respondent to pay the applicant’s costs of suit.

*Chikumbirike & Associates*, applicant’s legal practitioners
*Wintertons*, respondent’s legal practitioners
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