Makonese v Makonese (HC 2893 of 2002) [2004] ZWBHC 76 (2 June 2004)

Judgment No. HB 76/2004 Case No. HC 2893/02 FIDELIS MAKONESE Versus YUSTINA MAKONESE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 17 JANUARY 2003 & 3 JUNE 2004 J Sibanda for applicant R Moyo-Majwabu for respondent Judgment NDOU J: This type of application for rescission is uncommon. The applicant seeks an order rescinding a divorce order granted on 13 June 2002. The court also granted ancillary relief. The effect of the relief sought will, in a sense, “remarry” the parties after living as “divorcees” for a period in excess of a year at the commencement of the trial. In September, 2001 the respondent instituted divorce proceedings against the applicant. The applicant duly entered appearance to defend through his erstwhile legal practitioners. Subsequently, the applicant failed to pay his erstwhile legal practitioners resulting in them renouncing agency reducing him to a status of a self-actor in December 2001. But before that, he did not file his plea as required by the rules. He only filed a request for further particulars on 20 November 2001. This was eight (8) weeks after receiving the summons wen the rules required him to have filed his plea within 14 days of the date of service of the summons. This was clearly a serious form of non-compliance with the rules. The respondent promptly supplied the further particulars on 26 November 2001. Nothing was heard from the applicant until the above-mentioned renounciation. He was legally represented for around three (3) months and no plea was filed. This grave non HB 76/04 compliance occurred during the period when he was legally represented. Thus far the question of old age, illiteracy and notorious failure to appreciate the importance of legal documents is not relevant. This is the crucial period within which he was required to file his plea. He unlike many litigants, enjoyed legal representation. He partly blames his erstwhile legal practitioners for the non-compliance. Even if that be the case, this in any event, is one of the cases were a client should suffer for the negligence of his legal practitioners – S v McNab 1986 (2) ZLR 280 (SC) at 284A-F DUMBUTSHENA CJ said – “In such cases the court has to consider whether to punish the applicants for the negligence of their legal practitioners. In my view clients should in such cases suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Saloorjee & Anor NNO v Minister of Community Development supra [1965(2) SA 135 (AD)] at 141C-E when he said- ‘There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Consideration ad misericodiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are. (C F Hepworths Ltd v Thornloe & Clarkson Ltd 1922 TPD 336; Kingsborough Town Council v Thirlwell & Anor 1957 (4) SA 533 (N))’ I have dwelt at length on this point because it is in my opinion that laxity on the part of the court in dealing with non observance of the rules which will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration of justice.” – See also Bishi v Secretary for Education 1989 (2) ZLR 240 (HC). When nothing was heard from the applicant on 21 January 2002 the respondent issued a notice to bar and served it on the applicant personally on 27 HB 76/04 February 2002. The service was effected by the Deputy Sheriff, Bulawayo who explained in her return that she explained the exigencies to him. Once more the applicant did nothing. On 13 June 2002 the respondent set the matter down for hearing and it was accordingly finalised. He only reacted to the legal process when the respondent sought to execute. He wants the judgment to be set aside. The rules of this court require only a “good and sufficient cause” as the basis of rescission of judgment. This gives the court a wide discretion – Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S); Maujean t/a/ Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I; Morkel v ABSA Bank Ltd & Anor 1996(1) SA 899 (C). A wilful default occurred in this matter because the applicant freely took a decision to refrain from filing his plea for a period of three months when he was legally represented. He had full knowledge at the time of the need to timeously file his plea. The subsequent intention to bar served on him personally. He refrained from doing what he was required to do – Neuman (Pvt) Ltd v Maks 1960 R & N 166 (SR) at 169; Simbi v Simbi S 164-90; Mdoluwani v Shoniwa 1992 (1) ZLR 269 (S) and Zimbabwe Banking Corp v Masendeke 1995 (2) ZLR 400 (S). The onus is on the applicant for rescission to show that there was good and sufficient cause for granting the application. The factors which are taken into account in deciding whether default judgment should be rescinded are- (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defence on the merits of the case and whether that defence carries some prospect of success – Roland & Anor v HB 76/04 McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) and Stockil v Griffiths 1992 (1) ZLR 172 (S). Despite being personally served with the notice to bar on 27 February 2002, the applicant did nothing about it. For four months he ignored the notice. He only reacted on 16 January 2002 when he filed this application. Applicant has put forward the deaths of his relatives as the cause of his failure to file his plea. These relatives died in April and June 2002 respectively. This was eight weeks after he had been served with the notice to bar and five months after the date he was supposed to have filed his plea in terms of the rules. It is obviously that the applicant has consistently ignored the provisions. In my view, the death of the applicant’s relatives did not influence the applicant’s failure to comply with the rules of this court. He later shifted the emphasis of the reasons of his failure to comply with the rules. Applicant stated that although the notice of intention to bar was served on him personally, he is a layman who is not schooled in law or court procedure. I agree with the observation by MTAMBANENGWE J, in Moyana v John Buekes, Trust HH-132-92, that- Layman, even literate ones, as applicant herein obviously is, are notorious for failing to appreciate the importance of legal documents.” But that fact alone cannot constitute a sufficient reason to grant rescission. It is certainly a relevant factor to be taken into account in an application for rescission. In casu, the applicant appreciated the importance of the summons as envinced by his entering a notice to defend. He had sufficient appreciation that he required legal representation to defend the matter. This, in my view, is consistent with the averrment by the respondent that he was a successful businessman running a retail HB 76/04 and liquor outlets. He did take initial steps to defend himself. The applicant, with full knowledge of what he was required to do and when, and conscious of the risks attendant on his default, freely took the decision to refrain from filing his plea. It is important to note that the ancillary relief sought by the respondent in the matrimonial matter HC-2141/01 is what the court granted when he defaulted. The applicant saw this claim when the summons were served on him. In the summons the respondent claimed inter alia, “5. 6. An order awarding defendant’s undivided half share in the matrimonial home being number 155A Gwanda Road, Riverside to plaintiff together with all household effects thereat. An order awarding to defendant the parties’ general dealer shop and bottle store at Siganda and all movable and immovable property thereat to defendant as his sole and absolute property…” He was aware of this claim even before he instructed his erstwhile legal practitioner. He instructed the latter to defend these claims. His being a layman is neither here nor there. There is an attempt to blame the manner of service of the notice of intention to bar. The Deputy Sheriff, in her return, says she explained the exigencies of the of the notice to bar to the applicant. In his founding affidavit, the applicant did not challenge this return. His explanation was – “On 27 February 2002, I was personally served with a notice of intention to bar, a document whose import and significance was lost to me at the time. I must thus confess that I did not do anything official on my receipt of the said document. Far from being an act of dilatoriness, this was actuated by sheer ignorance on my part. I though that I would be called to court, to argue the merits of my matter in due course.” He only stated that the Deputy Sheriff did not explain to him the import of notice to bar in his answering affidavit. On a balance of probability I find that the Deputy Sheriff explained the exigencies of the notice to him and he had a reasonable idea of the need to act timeously as the notice had a deadline thereon. If indeed he HB 76/04 was waiting “to be called to court …” then he would not have ignored the 5 day deadline in the notice to bar. He did not ask the Deputy Sheriff about this deadline or go to court to enquire what he was supposed to do within the 5 day deadline. On the bona fides of his defence on the merits, it is common cause that the applicant does not dispute that the marriage had irretrievably broken down. The gravaman of his protest is that the court awarded sole ownership of property number 155A Gwanda Road, Riverside, Bulawayo to the respondent. I have referred to respondent’s “plaintiff’s affidavit of evidence” in HC 2141/01 supra to see what property was before the court for distribution at the time the default judgment was granted. I believe that I am entitled to make such reference – Mhungu v Mtindi 1986 (2) ZLR 171 (SC) at 173A-B. The respondent stated therein that besides the Riverside property supra, there was also a bottle store, general dealer’s shop and a homestead attached to the business. She also mentioned, rightly or wrongly, that the applicant received his early retirement benefits of around $500 000 which money he did not share with her and the children. Applicant was also awarded a motor vehicle which he uses to service the business operations. Exercising its wide discretion the court distributed the matrimonial property depending on the disclosure of facts by the respondent in her papers. The applicant, as indicated above was aware of what she was claiming right from the start. There is nothing in the applicant’s papers that shows that the court did exercise its wide discretion in transferring all the assets (not just the Riverside property) to achieve the statutory objective of placing the spouses in the position they would have been in had a normal marriage relationship continued between them – section 7(3) of the Matrimonial Causes Act, [Chapter 5:13]; Dlamini v Dlamini HB-27-00; Ncube v Ncube 1993 (1) ZLR 39 (S); Takafuma v Takafuma HB 76/04 1994 (2) ZLR 103 (S) and Chikomba v Nkomo S 62-91. In Ncube v Ncube, supra, at 47E KORSAH JA said – “The approach is to accord her share of that property and then taking into account all the assets of both spouses to endeavour as far as is reasonable and practicable and is just to do so, place the spouses in the position they would have been in had a normal marriage relationship continued between them. In the performance of this duty a court is empowered, in the exercise of its discretion, to order that any asset be transferred from spouse to the other.” In this case the court awarded the Riverside property with movables therein to the respondent. The applicant, even in his default, ended up with two businesses, a homestead. Looking at all the assets and the distribution thereof there is no bona fide defence on the merits which carries some prospect of success. The applicant does not show how the application of section 7 (3) of the Matrimonial Causes Act, supra, would result in a different outcome. As pointed out, there is no explanation for the default, let alone a reasonable explanation. There is not bona fide defence to the respondent’s claim. This application is therefore devoid of merit and does not meet the requirements set out in the authorities above – Roland & Anor v McDonnell (2) supra, Songore v Olivine Industries supra and others. Bearing in mind the convenience of the court, the need to bring finality to litigation, the unreasonableness of the explanation for the delay and the lack of bona fides on the prospects of success of the defence on the merits, I find that the applicant has not shown good cause for this court to exercise its discretion in favour of granting the application for rescission. I, accordingly, dismiss the application with costs. Job Sibanda & Associates applicant’s legal practitioners James, Moyo-Majwabu & Nyoni, respondent’s legal practitioners