Zimbabwe Electricity Transmission and Distribution Company v Ignatius Ruvunga

### Preamble
1
HH 307-2012
HC 7739/10
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ZIMBABWE ELECTRICITY TRANSMISSION

AND DISTRIBUTION COMPANY

versus

IGNATIUS RUVINGA

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 26 May 2011 and 18 July 2012

Opposed Application

J Bakasa, for the applicant

The respondent in person

BERE J:  From a distance this is a simple application for rescission of judgment in order to pave way for the reinstatement of the defendant’s plea which was struck out by this court on 21 October 2010. A closer look at the application and the responses thereto make interesting, edifying and of course quite revealing aspects of the law as canvassed by the parties. I propose to start by providing a detailed background of this case.

The Background

On 19 May 2010 the plaintiff (now the respondent) issued out process from this court against the respondent (the applicant in this matter) seeking the following:

“Payment of:

US$9 800-00 being the costs of replacing the motor;

Payment of US$208 849-00 in respect of damages suffered as a result of the loss of the plaintiff’s crop;

Payment of US$200 000-00 being damages in respect of mental anguish, anxiety and depression;

Costs of suit.”

The defendant filed its papers in defence of the claim which was followed by all the other pleadings to the stage until all pleadings had been closed.

The matter followed its natural path which culminated in the matter having to be set down for a pre-trial conference as provided for under Order 26 r 182 as read with the practice direction 1 of 1995.

At the pre-trial conference which was scheduled for 21 October 2010, the presiding judge felt inclined to have the applicant’s defence and plea struck out. The learned judge proceeded to do so and referred the matter to the unopposed roll for proof of damages by the now respondent.

Stung by this development, the applicant has now filed this application for the reinstatement of its defence and plea.

In filing the instant application, reliance was sought on the founding affidavit not of the applicant’s representative but of one Vote Muza (the applicant’s legal practitioner of record). In his founding affidavit, the deponent tried to give some explanation for the default on 21 October 2010 as well as commenting and emphasising on the strength of the applicant’s case whose cumulative effect he argued warranted the court’s indulgence in granting rescission of judgment and consequently reinstatement of the applicant’s plea.

The application for reinstatement of the applicant’s plea was vehemently opposed by the respondent basically on two grounds, viz the point raised in limine and the alleged shortcomings in the founding affidavit of Vote Muza as I will highlight later in this judgment. I propose to deal first with the point raised in limine by the respondent.

Was it competent for the applicant to rely on the affidavit of its counsel Vote Muza as opposed to the applicant itself?

I do not wish to be detained by this argument in this matter. Suffice it to say that it is clear to me that the law is settled in this regard in favour of the applicant. Within the context of this case it was indeed competent for Vote Muza to swear to the founding affidavit as he did. This position was sufficiently canvassed by my sister judge MAVANGIRA J  in the case of Zimbabwe Banking Ltd. In a properly reasoned judgment the learned judge explored the legal position and concluded that there was nothing amiss with the legal practitioner deposing to an affidavit in circumstances similar to the instant case. I am in total agreement with the legal position expoused in that case. Vote Muza is no stranger to the applicant’s case as he is its legal practitioner and I am satisfied it was competent for him to depose to the founding affidavit.  See Order 32 r 227 (4)(a) High Court Rules, 1971.

The content of Vote Muza’s affidavit on merits

Our law is settled that in order to succeed in having an order made in default of appearance set aside the applicant must show good and sufficient cause. See Chitsaka & Ors v Public Service Association; Chetly v Law Society of Transvaal.

The explanation tendered by the applicant must negative any wilful default on the part of the applicant. It has been stated for times without number that in the context of default judgment, wilful connotes deliberateness in the sense that the applicant must have had full knowledge of the set down date and of the risks attendant upon default, and freely took the decision to refrain from appearing, whatever the motivation of that decision may have been. See Dewera’s Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd; Zimbabwe Banking Corporation v Masendeke.

It is within the context of the legal position as espoused that I must now attempt to consider the content of Vote Muza’s founding affidavit upon which the applicant’s case is pinned.

The first point that comes to my attention is that there is clearly a yawning gap in the application for rescission of the decision made against the applicant. When the matter was initially set down for the pre-trial hearing on 23 September 2010, the learned judge felt very strongly that the parties assisted by their respective legal practitioners were supposed to try and engage each other with a view to reaching a settlement failing which she would naturally consider referring the matter to trial. The court then gave a directive that the parties convene on their own on 18 October 2010 for a round table discussion. The court with the concurrence of the two legal practitioners, who incidentally included Vote Muza had the matter postponed for a second pre-trial hearing on 21 October 2012.

Vote Muza and his client’s representative, fully aware of the date of pre-trial hearing chose not to attend the hearing. Therein lies the problem. In his founding affidavit, Vote Muza has chosen to extensively speculate on what may or may not have happened. The deponent has speculated about the alleged inability of the applicant’s alleged key witness Steven Mbavarira to attend the round table discussion of 18 October 2010. Stephen Mbavarira’s affidavit is deliberately missing from the application.

In his founding affidavit, Vote Muza gives the impression that he discussed the matter with Mr Ncube’s clerk and sought to have both the round table conference and the pre-trial hearing postponed. Mr Muza must simply not be taken seriously when he says he believes Mr Ncube’s clerk’s indication to him would bind both Mr Ncube and the presiding judge in having the matter set down for pre-trial conference automatically postponed in Vote Muza’s absence.

There is nothing like an automatic postponement when a matter is set down before a judge. A party desiring a postponement must advance cogent reasons for a postponement and seek the court’s indulgence in that regard. Only when the court agrees with the submissions of a party seeking postponement would the court accedes to such an application. It was certainly not enough for Mr Muza to decide from the comfort of his office not to himself attend court on a date that he had personally conceded to have the matter postponed and to delegate his junior Mr Tawona to handle the desired postponement.

One of the yawning gaps in Vote Muza’s founding affidavit is that he does not himself explain why he did not personally take it upon himself to appear before the presiding judge and seek a postponement. Equally surprising is Mr Muza’s appetite to speculate on behalf of Mr Tawona without appreciating the wisdom of compiling Tawona’s affidavit in support of the application.

The founding affidavit of Mr Muza attempts to monopolise the alleged expert evidence of Stephen Mbaravira whose evidence he alleged was central and decisive in the applicant’s defence. But if this witness was that important one does not understand why he could not avail himself on either 20 or 21 October 2010 if he was writing his professional examinations during the week commencing 25 October 2010. Again, Mbavarira’s affidavit is conspicuously missing to explain his alleged challenges and to explain that of all the experts within the applicant’s employment he was the only one fully qualified to defend the applicant in the manner alleged by Vote Muza in his founding affidavit.

From the founding affidavit of Vote Muza one cannot avoid coming to the seemingly inevitable conclusion that with his mind fully alert, he deliberately decided not to attend firstly the round table conference as directed by the presiding judge and secondly the pre-trial hearing of 21 October 2010 which date he had accepted for pre-trial hearing.

The frustrations by the presiding judge are understandable and easily discernable from her brief ruling when she stated:

“1.	Result:	The defendant is not in attendance. Its legal practitioner was unable to proffer a reasonable excuse for failure by the defendant to send a representative to attend the pre-trial conference.

2.	Mr Ncube submitted that this was the second occasion on which the defendant failed to attend the pre-trial conference without a reasonable explanation. The parties were supposed to have met yesterday to discuss settlement and the plaintiff and his legal practitioner waited for them for thirty minutes. A call then came from Muza to say that his client could not come because of a course in Kadoma.

3.	The defendant has been dilatory in dealing with this PTC and having no explanation for its non-atte4ndance on two occasions. I find that it is in default. The plaintiff sought and has applied for its, the defence to be struck out.

It is ordered:

That the defence and plea by the defendant be and is hereby struck out.

The matter is referred to the unopposed roll for proof of damages by the plaintiff.”

It is quite significant that the ruling by the judge concerned provides another dimension to the bona fides of the applicant’s explanation for the default. Whereas, in his founding affidavit Mr Muza stoutly tried to convince the court that the reason for default was that his client’s representative was held up by professional examinations, his fellow legal practitioner Mr Tawona was singing a different song before the presiding judge by advising that the representative was attending a course in Kadoma. One can only conclude that there was a clear determination by the applicant to frustrate the conclusion of this case and such conduct must find no sympathy from the court.

Whilst it is true that a legal practitioner is competent to file a founding affidavit for and on behalf of an applicant as in the instant case one should always be aware of the attendant risks involved in the case of a situation where the founding affidavit departs materially from the pleadings filed of record. If that happens, then the competence of the legal practitioner in filing a supporting affidavit inevitably calls for scrutiny.

In the instant case and in a desperate effort to lay the foundation of the applicant’s bona fides in its defence, the deponent has completely denied liability on the part of the applicant. Unfortunately the filed pleadings do not quite support him. It will be noted that on 16 January 2010, the applicant wrote to the applicant complaining about the burnt electric motors which had been caused by low voltage leading to disruption of the supply of electricity at the respondent’s plot, which disruption is the cause of his action in the main matter. In its response the applicant, through its secretary one J Tsamba partially accepted blame through its letter of 27 January 2010 which was to the following:

“We acknowledge receipt of your letter dated 6 January 2010 whose contents have been noted.

Please be advised that it was established that a 100 KVA transformer which was available by then was installed in 2002 at Exwick Plots and could cater for the load. Due to the increase in the load over the years, the transformer capacity could not match the load.

To ensure adequate supplies an increase in transformer capacity will be made from 100 KVA to 315 KVA. The LT line will be uprated from 50 mm2 HAD to 100 mm2 HAD by 15 February 2010.

We hope this addresses your concerns.” (my emphasis)

Compare this conciliatory gesture which in my view is a partial admission of liability with the fully fledged denial of liability that runs through Vote Muza’s founding affidavit filed for and on behalf of the applicant. This conflicting approach in dealing with this matter neither edifies the applicant’s defence nor portrays Vote Muza in good light. If anything it casts reasonable doubt on the bona fides of the application filed.

In para 11 of his notice of opposition to the application made the respondent had challenged the applicant why its entire institution had failed to nominate a representative to represent it at the pre-trial conference of 21 October 2010. In response, and in his answering affidavit, Vote Muza then grudgingly referred to the affidavit of Judith Tsamba “filed herewith.”

It seems to me that reference to Judith Tsamba’s affidavit further compounded the applicant’s application as it amounted to improperly smuggling Tsamba’s affidavit into this application. There was a complete violation of the rules of procedure in introducing the affidavit of Tsamba. It occurs to me that what the applicant did is exactly the mischief that was sought to be prevented by order 32 r 235 which is couched as follows:

”235. After an answering affidavit has been filed, no further affidavit may be filed without the leave of the court or a judge.”

It goes without saying that if reliance was to be sought on Tsamba’s affidavit, the leave of the court or a judge ought to have been obtained first.

In both his founding affidavit and the answering affidavit Mr Vote Muza goes out of his way to explain what he perceives to be the hopelessness of the respondent’s case. The deponent states inter alia;

‘The matter to be determined by the court is essentially res nova. Any judgment to be granted by the court will be ground breaking in our way or the other. The Supreme Court has already said that in respect of such matters, either party has prospects of success and same have to be fully interrogated. Reliance will be placed upon the relevant authorities should the matter be argued.’”

In his heads of argument the applicant’s counsel further emphasized that the issues raised in the main matter are res nova. This is what the applicant’s counsel stated in his heads of argument:

“4.1.2	At any rate, the issues raised by the main matter are res nova. The liability of the applicant under these sort of circumstances has to my knowledge never been pronounced upon by the court… The law has to be settled on whether Aquilan liability can be extended under these sort of circumstances. In this regard the Judge hearing the application for reinstatement is in the position commented upon by the CHIEF JUSTICE in Chikafu v Dodhill (Pvt) Ltd & Ors SC 28-09. The result is that the application, as observed by the Supreme Court ought to be granted.”

I did not hear counsel to be arguing that to his understanding the Supreme Court would condone counsel’s lackadaisical or dilatory approach in the handling of this matter as demonstrated in this judgment.

In my view there can be no doubt that through its conduct via its duly chosen counsel, the applicant has deprived itself of the opportunity to clearly ventilate the issues in a fully fledged adversarial proceedings.

In any event it cannot be seriously contented that in a default judgment the court that will be seized with the matter in the unopposed roll will be precluded from canvassing the issues in order to come up with a sound decision either for or against the respondent. I remain firmly convinced that all these issues about the respondent’s claim being res nova, the extension of the aquilan liability if at all, the ground breaking judgment etc squarely fall within the province of the court that will be seized with the assessment of damages and they will be adequately addressed at that forum.

In conclusion, and after having looked at the explanation tendered for the default in conjunction with the alleged bona fides of the applicant’s defence on merits as I am obliged to do, I am satisfied that the applicant has not made a good case to warrant the granting of the relief sought.

The application is accordingly dismissed with costs.

Muza & Nyapadi, applicant’s legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners