Robert Derera Mushonga, Pascal Takaidza Mushonga & Jeremiah Moyana v Effort Musandinane

### Preamble
1
HMA 32-20
HC 452-19
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ROBERT DERERA MUSHONGA

PASCAL TAKAIDZA MUSHONGA

JEREMIAH MOYANA

versus

EFFORT MUSANDINANE

HIGH COURT OF ZIMBABWE

ZISENGWE J

Masvingo, 5 February, 9 March, 13 March, 19 March, 2 April, 26 May and 15 July, 2020

Opposed Application

Mr Mbwachena, for the applicant

Mr Chakabuda, for the respondent

ZISENGWE J: 	The three applicants seek the rescission of a default judgment that was entered against them on 4 December, 2019. The respondent had issued summons out of this court for the delivery of replacement motor vehicle parts or in the alternative payment of a certain sum of money being their replacement value (as well as interest thereon) and costs of suit. The default judgment followed the failure by applicants to enter appearance to defend within the dies induciae.

Background to the application

The claim by the respondent arose from events wherein his accident damaged motor vehicle which he had entrusted into the custody of the 1st applicant was “cannibalised” and stripped of most of its vital components. If the respondent’s averments contained both in his declaration attached to the summons and in his opposing affidavit filed in connection to this application are anything to go by, the motor vehicle was rendered virtually a useless empty shell as a result.

According to the respondent the liability of the 1st applicant stems from the breach of the duty of care which the latter owed the former following his (i.e. 1st applicant’s) assumption of control and custody of the motor vehicle. The 2nd applicant’s liability on the other hand is based on allegations that he unlawfully stripped the motor vehicle of its parts. The liability of the 3rd applicant is premised on him having signed a document (in the form of a deed of settlement) amounting to an acknowledgement of liability or indebtedness over the pilfered motor vehicle parts.

In the wake of the granting of the default judgment, the applicants brought the current application for rescission of judgment in terms of Rule 63 of the High Court Rules, 1971. They contend that in the circumstances of this case the prerequisites for the granting of rescission are satisfied. They aver in this regard that their failure to enter appearance was not wilful as they were never served with the summons. They each claim that they only became aware of the action against them on 20 December, 2019 when execution of the said judgment was imminent. They further contend that they each have a bona fide defence to the claim.

The 1st applicant inter alia attacks the very basis of the claim against him. He denies ever owing any duty of care towards the respondent in respect of the motor vehicle and secondly that he never stole the motor vehicle parts in question. The 2nd applicant admits having stolen some of the motor vehicle parts; something he was charged with and convicted of in the magistrates’ court. He however denies having removed the bulk of the stolen parts. The 3rd applicant on the other hand avers that there is no credible cause of action against him. Implicit in this averment is the suggestion that he has nothing to do with this motor vehicle and/or its stolen parts.

This application is strenuously opposed by the respondent who raises the preliminary point that the application is irregular and incompetent as it does not comply with the peremptory requirements of Rule 230 of the Rules of Court. Reference is made in this regard to the form on which the original application was filed. It is this preliminary point that this court is being called upon to decide and the further progress of this application (if any) hinges on its resolution.

It is common cause that initially the applicants instead of filing their application for rescission on Form 29 as required in terms of Rule 230 of the Rules did so on a form alien to the Rules of the High Court. It somewhat resembles the form used for similar applications in the Magistrates Court.

This glaring irregularity was brought to the attention of the applicants when the latter (unsuccessfully) launched an urgent chamber application for stay of execution.

The respondent in opposing this application relies to a greater extent on the ratio in Zimbabwe Open University v Dr O. Mazombwe HH 43/2009. In that case HLATSHWAYO J (as he then was) after reviewing several decisions on the subject, concluded that an application for rescission not based on the correct form is a nullity. The court further pointed out that the failure to seek condonation for non-compliance renders the application defective and should be struck off.

The current matter, however, goes beyond the defectiveness of the original application as the applicants upon a realisation of the defectiveness of their application sought to amend it by substituting it with a rules – compliant one.

The issue

From the foregoing the question that falls for determination is whether it was competent and permissible on the part of the applicants to purport to amend their defective application by unilaterally substituting it with a compliant one.

Can an application which is defective for want of compliance be amended?

In Jensen v Acavalos 1993 (1) ZLR 216 the Supreme Court adopted the approach in the cases of Simross Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd. v Walters t/a Trend Litho, Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen 1978 (1) SA 779 and concluded that applications which do not conform to the Rules of Court are a nullity and lend themselves to being struck off the roll.

What fell for consideration in the Jensen case was the fate of an appeal which did not comply with s 29 of the Supreme Court Rule, RGN 380/1964. The court had this to say;

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity.  It is not only bad but incurably bad, and unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs. De Jager v Diner & Anor 1957(3) SA 567 (A) at 576 C – D.”

In Hattingh v Piennar 1977 (2) SA 182 (O) at p 183 KLOPPER JP held that a fatally defective non-compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of the time within which to comply with the relevant rule. With this view I most respectfully agree: for the notice of appeal is incurably bad, then to borrow the words of Lord Denning in McFoy v United Africa Ltd [1961] ALLER 1169 PC at 1172 l.; “every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (emphasis mine)

In the context of this case, therefore, if the use by the applicants of the wrong form in their original application was strange, what they then sought to do in supposed rectification of that irregularity was even stranger. Instead of simply withdrawing the offending application and filing a complaint one, they sought to amend it by purporting to attach the application in the correct format, needless to say that they made a bad situation worse.

The defect in the original application is neither superficial nor inconsequential; it is of real substance and effect. Unlike Form 29 it did inform the respondent what he needed to do should he have intended to oppose the application, nor the form on which the opposing affidavit needed be filed. It does not disclose when and where the respondent was required to file the notice of opposition let alone alert him of the consequences attendant to the failure to file the opposing affidavit.

By purporting to then amend the original (defective) application by substituting it with a different one on the 24th of January, the applicants fell into error because it was no longer clear what the fate of the original application was and whether the seven days referred to in the “amending” application was to be deemed as commencing upon the service of the original application or the amended one.

Further there is a patent contradiction inherent in purporting to “amend” one application by “substituting” it with another. The word amend connotes to correct something yet the word substitute implies replacing something. One cannot correct something by replacing it with another.

Quite clearly the two applications cannot co-exist as the applicants impliedly suggest, nor can the second one supplant the first without a withdrawal of the latter.

Can Rule 4C be used to salvage a defective application?

In their supplementary heads of argument, applicants implore the court to invoke the provisions of rule 4C of the rules to rescue their application and permit the matter to be heard on its merits. They contend in this regard that the said rule imbues the rules with the invaluable attribute of flexibility to remedy situations where rigid adherence to them may result in an injustice to the affected party.

It was further argued in this regard that it is in the interests of justice allow the matter to be decided on its merits rather than condemn it on the basis of the irregularity complained of.

Finally, it was contended that the respondent stands to suffer no prejudice should the court adopt such a course of action.  Reliance for the foregoing was placed on a dictum from the case of RIO Zimbabwe Limited v Africa Import Bank HH 31/14 which dictum extols the virtues of the flexibility to the rules brought about by rule 4C.

Rule 4C provides as follows;

"4C- Departure from the rules and directions as to procedure:

The Court or Judge may in relation to any particular case before it or him, as the case may be,

direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

give such directions as to procedure in respect of any matter not expressly  provided for in these rules as appear to it or him, as the case may be, to be just and expedient.

There are several difficulties that immediately confront the applicants in their quest to be

rescued by rule 4C. Firstly, it is not clear from the applicants’ supplementary heads what exactly needs to be condoned: whether it is the filing of the original application for rescission on an irregular form or it is the permission to amend the offending application in the manner they did.

This rather vague and obscure call by the applicants for the court (ostensibly in the interests of justice) to invoke rule 4C and have the matter heard on the on the merits is untenable.  The applicants needed to be clear on precisely which of its irregular conduct should be condoned. The court cannot "carte blanche" grant a blanket condonation for all of the past irregularities committed by a party.

Secondly, the respondent makes the valid observation that the applicants did not as much as apply to the court, let alone obtain, the court’s indulgence to substitute the defective application with a rectified me. By taking it upon themselves to unilaterally file a substituted application without leave of court they effectively put the cart before the horse, so to speak.

It is clear from the case of De Jager v Diner (supra) as cited with approval in the case of Jensen v Acavalos (supra) that the application for condonation of the defective application must precede the filing of a proper one and the latter may only be filed with leave of court.  More importantly the condonation referred to therein is for the extension of time within which to file a proper application.

The court enjoys a wide discretion in terms of rule 4C whether or not to grant an indulgence for non-compliance with the rules. I however believe it should be slow to invoke it to facilitate a wholesale substitution of a wholly defective application with another or for the superimposition of a correct application an invalid one lest it be construed as to countenance the sloppy drafting of court documents safe in the knowledge that when called out, refuge may always be sought in it. Accordingly I decline the invitation to invoke it to remedy applicants’ position. What remains, therefore, is to consider the appropriate order to make in the circumstances.

The Relief

The respondent sought the dismissal of the application on account of the irregularities outlined above. However, a perusal of the relevant authorities including the case of ZOU v  Dr Mazombwe; Jensen v Acavalos, Simross Vintners (PTY) Ltd v Vermeulen and 4 others (all cited above) shows that the matter can only be struck from the roll (as opposed its outright dismissal) because the matter was never properly be before the court in the first place.

Costs

The general rule is that the substantially successful party (which undoubtedly the respondent is) is entitled to his costs. The only question is whether respondent is entitled to costs on the attorney and client scale which he seeks. The court does not lightly award costs on a punitive scale. It can only do so if there exist special grounds forwarding the same. Examples of situations that have been given justifying costs on that scale include where the losing party "… has been guilty of dishonesty or fraud or that his motives have been vexations, reckless and malicious, or frivolous,  or that he has acted unreasonably in his conduct of the litigation or that his conduct is in some way reprehensible."  See Erasmus, "Superior practice" second edition, at page D1-24.

In the present matter, the applicants were on more than one occasion alerted (via counsel) not only of defectiveness of their application but also of the appropriate course of action to pursue in rectification of the same.  For reasons best known to themselves, they threw caution to the wind and turned a deaf ear to such advice and elected to pursue an irregular course of action. There is, in my view, therefore, justification in awarding costs against them on a punitive scale.

In the result the following order is hereby made;

Application is struck off the roll with costs on the legal practitioner and client scale.

Ruvengo Maboke and Company, applicants’ legal practitioners

Chakabuda Foroma Law Chambers, respondent’s legal practitioners