Mudzipuri v Gapare

### Preamble
1
Mudzipuri v Gapare
HMA 50-19
CIVA 46/18
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D. MUDZIPURI

versus

TAKURA GAPARE

HIGH COURT OF ZIMBABWE

MAWADZE J & MAFUSIRE J

MASVINGO, 26 June 2019

Date of written judgment 6 November 2019

Civil appeal

Mr O. Mafa, for the appellant

Ms Y. Chandata, for the respondent

MAFUSIRE J

[1]	This was a civil appeal from the magistrate’s court. We heard it on 26 June 2019 and reserved judgment. Regrettably, judgment could not be delivered soon enough. For much of the first term vacation and part of the second term I was indisposed. This now is the appeal judgment.

[2]	The respondent would be forgiven if he felt let down. He has been ‘more sinned against than sinning’. It would seem as if circumstances connived to delay him justice. It has been nine years since the dispute between him and the appellant started. The facts of the case demonstrate that the appellant has just been playing for time. These are the facts.

[3]	The background to the dispute is about a piece of land that the Government offered for resettlement in terms of its land reform programme. This programme has been dogged by a myriad of problems. One of them has been the incidence of double allocation – the same piece of land being offered to two or more beneficiaries, leading to numerous legal fights. Invariably, the courts pick up the tabs.

[4]	In the present case, the appellant had an offer letter. In it the piece of land was described as Lot 55 of Lot 12 in Mwenezi, measuring approximately 857.60 hectares. It was dated 14 October 2004. Equally, the respondent had an offer letter. It was dated 3 October 20016. But this was in respect of Lot 55 in Masvingo, measuring 875.60 hectares. However, despite the offer letters reflecting different districts and different hectarages, it was in fact the same piece of land. Inevitably, the parties squabbled. The Government sought to sort out the problem. It corrected the respondent’s offer letter to reflect the district of Mwenezi, instead of Masvingo, and the hectarage as 857.60, instead of 875.60. It went on to withdraw the offer letter in favour of the appellant. Regrettably that did not resolve the problem. However, it was not the main issue in the court a quo or in the appeal before us. It was merely the background. The main issue was a thicket of technicalities.

[5]	In 2010 the respondent sued the respondent for eviction. He got a default judgment on 1 July 2010. In papers subsequently filed for him the appellant claimed his erstwhile lawyer had suffered car trouble on his way to court. That was why he had failed to attend court. But the respondent could not immediately execute. The record of proceedings had suddenly gone missing. The respondent failed to issue a warrant for ejectment. Eight years lapsed. Nothing substantive happened. The respondent was disgruntled. He changed lawyers. In June 2018 the new lawyers unwisely applied for a new order for eviction. Not unexpectedly, it was met with a special plea of res judicata. The special plea was upheld. The respondent was advised to enforce the original default judgment. He was disgruntled. He changed lawyers again.

[6]	Since the original default judgment was eight years old now, the respondent’s new lawyers applied to have it revived. In terms of s 20(4) of the Magistrates Court Act, Cap 7:10, no writ of execution can be issued over a judgment that is two years old or more unless it has been first revived. The application succeeded. The old judgment was revived. That was on 24 August 2018. The respondent proceeded to issue a warrant of ejectment. It was served on the appellant in September 2018. That was when the appellant woke up. He reacted by filing an ex parte application for stay of execution and rescission of judgment on 2 October 2018. He got a rule nisi calling upon the respondent to show cause why, inter alia, the default judgment should not be rescinded.

[7]	On 25 October 2018 the rule nisi in favour of the appellant was discharged on two points in limine. The first was that the application for rescission of judgment was way out of time in that the judgment sought to be rescinded was eight years old and yet there had been no application for condonation. The appellant’s argument on that point, both in the court a quo, and before us, was that the application for rescission was not out of time because the judgment sought to be set aside was the one on 24 August 2018 (the reviving judgment), not the one on 1 July 2010 (the default judgment). It was argued on behalf of the appellant that he could not have applied for rescission of judgment before because the record of proceedings in the court a quo had gone missing such that even the respondent himself had been unable to execute. It was said the one month dies induciae within which a person in the magistrate’s court is entitled to apply for rescission of judgment after he gets knowledge of the default judgment against him should, in this case, be calculated from September 2018 when the warrant of ejectment had been served upon him.

[8]	The second point in limine upon which the rule nisi in favour of the appellant was discharged was that his application had wrongly been set down. It was argued that the application was improperly before the court for want of compliance with the old Magistrate’s Court (Civil) Rules, 1980. Order 30 r 1(3)of those Rules said that unless leave was given to defend as a pauper, no application (for rescission of judgment) could be set down until the applicant had paid into court the amount of costs awarded against him under the default judgment, and the sum of ten dollars as security for costs of the application.

[9]	The appellant’s argument on the second point in limine, both in the court a quo, and before us, was that he could not have paid into court the amount of costs because not only were these unknown but also the record of proceedings had been missing such that no one knew whether in fact any such costs had been ordered.

[10]	On the merits, the appellant argued in the court a quo that the land was his. He said both the purported correction of the respondent’s offer letter and the purported withdrawal of the offer letter in his favour had been fraudulent and corrupt.

[11]	The appeal before us was predicated on much the same arguments as above. We find that it lacks merit. It was just a subterfuge to delay the day of reckoning, especially given that at all relevant times the appellant has always been the one in occupation of the disputed land.

[12]	We find that the appeal has no merit because, in regards to the first point in limine, it could only have been the default judgment on 1 July 2010 that the appellant sought to rescind. By then it was eight years old. Indeed, no application for condonation was made. In terms of Order 30 r 4 of the old Magistrate’s Court Rules aforesaid, a person is presumed to have knowledge of the default judgment against him two days after it has been entered.

[13]	The deeming provision above is more relevant in the circumstances of this case. The appellant claimed that his lawyer had had car trouble on his way to court and that he had unsuccessful tried to contact the then respondent’s lawyer. That was all there was to it on wilful default. But it was all hearsay. There was no affidavit from the purported lawyer explaining what exactly had happened and what efforts he had made to check on the fate of the case. Nor did the appellant himself explain what efforts he himself had made to check on the outcome of the case given that the application had been one for his eviction and that it had been served on him. The sum total of all this is that there was no reasonable explanation for the appellant’s default when the default judgment had been granted in 2010.

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[14]	That the appellant is deemed to have knowledge of the default judgment against him two days after it had been entered was one part of his problem. The other was that, even if accepting for a moment that he did not immediately become aware of the default judgment, he had certainly become aware of it in June 2018 when he took the special plea in bar of res judicata. By raising that plea (and succeeding) he was acknowledging, among other things, that a default judgment had been entered against him in 2010. It was simply on that point that the respondent’s second application for eviction had failed. But it seems that after raising the point, and after having succeeded, the appellant went back to sleep. It was not until 2 October 2018 that he applied for rescission of judgment and stay of execution. But he was out of time. Without the leave of the court he could not bring that application.

[15]	Regarding the issue of costs and the appellant’s argument that he could not have paid them into court because they had been unknown and that the record of proceedings had been missing, the appellant ignored the fact that the onus had been upon him to make every effort to find out what those costs had been. He told of no efforts by him in this regard. But more importantly, Order 30 r 1(3) of the Magistrate’s Court Rules has two requirements concerning payment into court. The one relates to the costs awarded against an applicant in the default judgment. The other relates to the amount of ten dollars that is required as security for the costs of the application. It was common cause that the ten dollars had not been paid. The amount may now be infinitesimal. In these high inflationary times, it may actually have become meaningless. But it is more the principle than the actual amount that matters. The rule requires that a person seeking rescission does not proceed to set down his application unless and until he has given security for costs that may be ordered against him. One does not just ignore a statutory provision even if the amount it refers to has become insignificant.

[16]	Finally, with regards to the merits, the appellant had no case. The Government had made a double allocation. Plainly, that had been a mistake. So, the Government had gone about correcting its mistake. That in doing so the Government had acted fraudulently and corruptly was just a nude argument by the appellant’s counsel in the court a quo. Nothing of substance was raised in support. Therefore, what was before the court a quo and on appeal was an offer letter in favour of the respondent. It was valid and regular on the face of it. The other offer letter in favour of the appellant had subsequently been withdrawn. That again seemed valid and regular.

[17]	Therefore we find that the appeal had no merit. It is hereby dismissed with costs.

6 November 2019

Mawadze J. agrees …………………………………………………………….

Mutendi, Mudisi & Shumba, appellant’s legal practitioners

H Tafa & Associates, respondent’s legal practitioners