Zimbabwe Posts (Private) Limited v Agostino Chiparu and Jeffery Manjeya

### Preamble
1
HH 258-2012
HC 6532/11
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ZIMBABWE POSTS (PRIVATE)

LIMITED

versus

AGOSTINO CHIPARU

and

JEFFERY MANJEYA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 8 June 2012 and 20 June 2012

Opposed Application

C Kwaramba, for the applicant

N Bvekwa, for the 1st respondent

MATHONSI J:  The first respondent instituted summons action against the present applicant and the second respondent in this court seeking an order for damages in the total sum of US$65 000-00 arising out of a motor vehicle accident which occurred at the 203 km peg along the Harare-Mutare road on 15 November 2009. In that collision, the first respondent’s Toyota Hiace Commuter Omnibus was extensively damaged, after it collided with a Toyota Diana minibus driven by the second respondent, and caught fire.

The first respondent’s claim was made up of $16 000-00 as the replacement value of the minibus and $49 000-00 as lost revenue after the minibus was incapacitated as a result of the accident.

The summons was served upon a receptionist by the name Chigodora at the applicant’s place of business and she accepted service on behalf of the applicant and the second respondent. When no appearance to defend was entered, the first respondent moved for default judgment, which was granted on 15 June 2011.

The applicant has approached this court seeking a rescission of that judgment. In its founding affidavit deposed to by Lucky Muchenga, the General Manager for Corporate Services, the applicant states that the summons was not brought to the attention of the relevant office. An internal investigation conducted  after the applicant became aware of the judgment, has not yielded any useful results as the receptionist who received it, Sylvia Chigodora, does not recall what she did with it after receipt.

The applicant states that it was only fortuitous that a lawyer at the law firm which normally represents the applicant happened to be in court on the day the order was granted. After he heard the matter being called, he later alerted the applicant resulting in an investigation being carried out and this application being made.

It is argued further that there is no way the applicant, which has a corporate and legal services department in charge of such issues, would have ignored the summons claiming such a huge sum of money if it had been brought to its attention.

The applicant denies being vicariously liable for the delicts of the second respondent and says that the latter was not employed by it at the time of the accident, he having been employed by Courier Connect (Pvt) Ltd, a duly incorporated company which is a subsidiary of the applicant. It is further stated that the vehicle which was driven by the second respondent belongs to Courier Connect (Pvt) Ltd and not the applicant.

The applicant insists that the second respondent was prosecuted at the magistrates court for contravening s 51 (1) of the Road Traffic Act, but was found not guilty and acquitted at the close of the State case, an outcome the applicant attributes to the fact that the  accident was caused solely by negligence of the first respondent’s driver.

The first respondent opposes the application on the basis that the applicant was in wilful default given that there was proper service of the summons on a responsible person. The first respondent further states that throughout the criminal prosecution of the second respondent, he maintained that he was employed by the applicant and has submitted documents to show that.

While Mr Bvekwa appearing for the first respondent conceded that the applicant may have a defence to the claim arising out of the fact that there was contributory negligence on the part of the first respondent’s driver, he submitted that the inquiry should not extend to that. In his view, the application should be dismissed solely on the basis that the applicant was in wilful default. He relies on the authority of V Saitis & Company (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H). That judgment does not support Mr Bvekwa’s argument because CHINHENGO J followed the reasoning in both Zimbabwe Banking Corp Ltd  v Masendeke 1995 (2) ZLR 400 (S) and Dewaras Farm (Pvt) Ltd & Ors  v Zimbank Corp Ltd 1998 (1) ZLR 368 (S) and concluded at p 386 B:

“The conclusion I have come to is that the test for rescission of judgment whether in the High Court (under r 63) or the Magistrate’s Court (under Order 30) (unless it is a refusal of rescission because wilful default exists) is but one, the applicant has to establish good and sufficient cause or, simply put, sufficient cause for the relief he seeks.”

Rule 63 of the High Court Rules, in terms of which this application is made, requires only “good and sufficient cause” to be shown for the rescission of judgment. It gives the court a very wide discretion which is not fettered by the question of wilfulness which Mr Bvekwa relies upon. It is that discretion which McNALLY JA had in mind when he stated in Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd (supra) at 369 E – F) as follows:

“While it may generally be true to say that when there is wilful default there will usually not be good and sufficient cause, I believe we fetter our discretion improperly if we lay down a fixed rule that when there is wilful default there is no room for good and sufficient cause.”

The learned judge of appeal went on at 370 A, quoting with approval INNES J in Cairns Executors v Gaarn 1912 AD 18 1 at 186:

“It would be quite impossible to frame an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. Any attempt to do so won’t merely hamper the exercise of a discretion which the rules have purposely made very extensive and which it is highly desirable not to abridge.”

I do not agree with Mr Bvekwa that the inquiry should end once it is established that the applicant was in wilful default. The authorities cited indicate that even where there was wilful default, good and sufficient cause may still be found. I do not even agree that wilfulness is established in this case.

Mr Kwaramba for the applicant relies entirely on the authority of Zimbabwe Banking Corp v Masendeke (supra) where the court accepted the explanation that the summons had been filed away without bringing it to the attention of management, as a credible explanation. At 403 A-B it stated:

“The wilfulness of a default is seldom, if ever, clear cut. There is almost always an element of negligence, and the question arises whether it was gross negligence and whether it was so gross as to amount to wilfulness. And in coming to a conclusion there is a certain weighing of the balance between the extent of the negligence and the merits of the defence. See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S). Stockill v Griffiths 1992 (1) ZLR 172 (S) and Mdokwani v Shoniwa (supra).

Here, while it is inappropriate to dwell on the merits, it is obvious that there are prima facie grounds for saying there may be merit in the defence both on liability and on quantum.”

In casu, the applicant has indeed given an explanation for failing to respond to the summons. It is that Sylvia Chigodora misplaced the summons and did not bring it to the attention of management. This was negligent but it still is an explanation. It cannot be said to be gross negligence. The circumstances of the accident are such that there is a need to interrogate the contribution of each of the drivers to the occurrence of the accident.

In my view, if all the factors to be taken into account in determining whether or not there is good and sufficient cause are considered, namely the reasonableness of the explanation for the default, the bona fides of the application, the bona fides of the defence on the merits, the inescapable conclusion is that the applicant has discharged the onus resting upon it to show good and sufficient cause.

It is however not a matter in which costs should follow the result because, clearly the applicant was at fault and the first respondent did everything it could to try and bring the matter to finality. It cannot be said that even the opposition to this application was hopeless as to attract an award of costs. It is a matter in which each party should bear its own costs.

Accordingly, I make the following order; that

The default judgment entered on 15 June 2011 in case number HC 2204/11 be and is hereby rescinded.

The applicant should file its notice of appearance to defend within seven days of the date of this Order.

Each party shall bear its own costs.

Mbidzo, Muchadehama & Makoni, applicant legal practitioners

Bvekwa Legal Practice, 1st respondent’s legal practitioners