Dunmuc Press (Pvt) Ltd v Gulliver Consolidated Ltd t/a Industrial Calvanising and Fabricating (HH 29 of 2004) [2004] ZWHHC 29 (10 February 2004)

1 HH 29-04 HC 10430/02 DUNMUC PRESS (PRIVATE) LIMITED versus GULLIVER CONSOLIDATED LIMITED t/a INDUSTRIAL CALVANISING AND FABRICATING HIGH COURT OF ZIMBABWE BHUNU J, HARARE, 29 January and 11 February, 2004 Mr Machingura for the applicant Mr Mafukise, for the respondent BHUNU J: This is an application for the rescission of default judgment granted against the applicant in Case Number HC 9672/02 on the 29th October, 2002. The application was filed on the 26th November, 2002. The legal requirements of an application of this nature to succeed were succinctly set out by BRINK J, way back about 55 years ago in the case of Grant v Plumbers (Pty) Ltd 1949(2) SA 470. In that case the learned judge had this to say ­ "I am of the opinion that an applicant who claims relief under Rule 43 (read 63) should comply with the following: a) b) c) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance. His explanation must be bona fide and not made with the intention of merely delaying plaintiff's claim. He must show that he has a bona fide defence to plaintiff's claim. It is sufficient if he makes 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 are in his favour". That the applicant was in default is not in dispute. What therefore concerns us here is the reasonableness or otherwise of the explanation for default. The applicant's explanation proffered by its Managing Director is that summons was served on the 17th September, 2002 on its receptionist one Douglas Tewe at its place of business. Having received the summons Douglas Tewe placed it in the Managing HH 29-04 HC 10430/02 Director's in try for him to attend to it on his return to the office. Due to pressure of work the Managing Director was unable to attend to his in tray upon his return to the office. He thus only became aware of the default judgment when the Deputy Sheriff called at the applicant's place of business on the 21st November, 2002. Having become aware of the default judgment on the 21st November, 2002 the applicant only filed this application with the Registrar on the 26th November, 2002. Upon becoming aware of the default judgment the applicant went through his in try but was unable to find the summons. He suspects that Douglas or one or other of its employees may have lost the summons and did not own up for fear of reprisals. The applicant's Managing Director admitted that it was his duty to deal with important court documents expeditiously and yet he put no mechanisms in place to ensure that such documents were drawn to his attention timeously. Upon his return to the office he did not seek to find out if any such documents had been served in his absence. The Managing Director knew of his responsibility to attend to court documents timeously yet from the 17th September to the 21st November, 2002 he did nothing to ascertain whether there were any such documents needing his urgent attention. In my view the Managing Director's conduct which is attributable to the applicant exhibits a gross dereliction of duty tantamount to gross negligence. Gross negligence has been defined in the case of Rosenthal v Marks 1944 TPD 172 or page 180 as "connoting recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty". That definition was quoted with approval in the latter case of Zeeta Manufacturers (Pvt) Ltd v Zimbabwe United Freight Company Ltd HH 104­90. The definition of Gross Negligence snugly fits the applicant's conduct in relation to this matter. In the case of Dominic Mular v Brenda Bracs SC 51­86 GUBBAY JA (as he HH 29-04 HC 10430/02 then was) had occasion to remark that ­ "Once the explanation for the default is found to be unacceptable as in this case, a disdain of the rules is the inevitable inference. In other words, the default is classified as wilful in the sense of a deliberate acquiescence thereby barring the indulgence of rescission". By simply not caring or considering the possibility of court documents being in his in tray as per the normal procedure the applicant through its Managing Director must be deemed to have acquiesced and deliberately disregarded the effect of non­ attendance to such documents timeously as happened in this case. Consistent with its wilful disregard the applicant having filed this application did not prosecute it to its logical conclusion. For eight solid months it abandoned the application leaving the respondent to take up the initiative and set down the matter for a hearing. This clearly exhibits a willful disdain of the rules. That being the case the applicant cannot cry foul. If there is any prejudice to be sufficed such prejudice is self inflicted and the applicant only has itself and its employees to blame. No blame is attributable to the respondent. Having come to the conclusion that the default was wilful and deliberate there is no point in proceeding to the next stage of the enquiry. The applicant is stuck with the default judgment granted against it in Case Number HC 9672/02. In the result it is ordered that the application of rescission of judgment granted against the applicant on the 29th October, 2002 in Case Number HC 9672/02 be and is hereby dismissed with costs. Mawere & Sibanda applicant's legal practitioners Jakachira & Co, respondent's legal practitioners