Dewan v Nyathi and Others

Case No: 
HC 2866/02
HC 1355/03
Media Neutral Citation: 
[2004] ZWBHC 84
Judgment Date: 
24 June 2004
HB084-04.DOC29.5 KB

                                                                                    Judgment No. HB 84/2004

                                                                                    Case No. HC 2866/02

                                                                                    X Ref: HC 1355/03



(represented by  HARBANS LAL DEWAN

by virtue of a Power of Attorney)


















A J Sibandafor applicant

Adv. T Cherryfor respondent




            CHEDA J:     This is an application for rescission of judgment.  Applicant is the owner of stand 15 Eurphobia Drive, Newton West, Bulawayo which stand she sold to 1st and 2nd respondent on or about 12 December 2001 for $2 million.  It was agreed between the parties that the purchase price was to be liquidated by post dated cheques and applicant gave vacant possession before the full purchase price was made.  Respondents were to take transfer after full purchase price had been made.  The background of the dispute arises from the legal procedure and common practice amongst legal practitioners.

            Firstly, summons were issued under case number HC 2866/02 by respondents seeking to compel applicant to transfer stand 15 Eurphobia Dr, Newton West, Bulawayo into their names.  Summons was served and applicant entered an

                                                                                                                        HB 84/04

appearance to defend on 11 December 2002.  On 23 January 2003 respondent filed a notice to plead and bar.  Applicant was effectively barred on 30 January 2003.  It is common cause that the two legal practitioners had some discussions which resulted in applicant’s legal practitioners being given a grace period of two days to file their pleas and counter claim from 30 January 2003.  In essence therefore the plea and counter claim was filed on 5 February 2003, which means that it was filed two days after the expiry of the grace period which had been given to them.

            Judgment in default was granted against applicant on 4 March and applicant states that she became aware of it on 20 June 2003.

            It appears that after respondents’ legal practitioners obtained judgment, applicant’s legal practitioners requested the upliftment of the bar by consent but this request was turned down.  Mr Sibanda for applicant has urged the court to seek guidance in the principle in Mukotakwa v Zimbabwe Transport Co-op Society Ltd HH-245-92 where GIBSONJ laid down the following factors to be taken into account in determining the question of indulgence.  These are:-

  1. The degree of non-compliance with the rules
  2. The explanation thereof
  3. The prospects of success
  4. The importance of the case
  5. The respondent’s interests in the finality or the court judgment and the convenience by the court
  6. The avoidance of unnecessary delays in the administration of justice
  7. The merits of the case may in some cases be a very important consideration.


HB 84/04

It is his further argument that respondents’ legal practitioner snatched the judgment as they did not even bother to advise him of the outcome of the judgment when he was aware that applicant had always wanted to defend this action.  This, in fact is true as is borne out by the fact that up to 5 February 2003 Mr Sibanda for applicant was still negotiating with Mr Ndove for respondents.

            It is respondents’ argument that applicant should have applied for the upliftment of the bar first before she made this application.  I find that this argument indeed made sense, but, however, the usual practice is that the application for rescission of judgment is made together with the application for upliftment of the bar.  This is so because the necessary explanation regarding applicant’s default overlaps to a large extent with that of the upliftment of the bar.  It is for this reason that I have used my judicial discretion to allow applicant to be heard.  The removal of the bar is not a right but a discretion of the court.  The court is therefore at liberty on good cause shown to grant applicant that indulgence.

            The question which I should therefore determine is whether or not applicant has shown a good cause or sufficient cause to justify the upliftment of the bar.  This largely depends on the circumstances of each case.  The removal of the bar is not automatic but has to be applied for and applicant must:

  1. give good reasons for his delay in not proceeding with his action in time; and
  2. he must file an affidavit of merits.

Applicant has argued that his delay was occasioned by the fact that at the time her legal practitioners were served with a notice of intention to bar it was towards Christmas period and that she was temporarily outside the country.  The delay of failing to file the plea by two days after the expiry of the

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extended period was a result of the negotiations going on between the two legal practitioners.  In Smith N O v Brummer N O & Another 1954(3) SA 352 (O) at 358 it was stated that the courts are inclined to grant applications for removal of bar where:-

  1. a reasonable explanation for the applicant’s delay is forthcoming
  2. the applicant is bona fide and not made with intent to delay the other party’s claim
  3. it appears that there has not been a reckless or intentional disregard of the rules of court
  4. the applicant’s case is not obviously without foundation; and
  5. the other party is not prejudiced to an extent which can not be rectified by a suitable order as to costs.

The question which I need to determine is whether or not applicant’s absence from the country should be regarded as sufficient cause for the court’s indulgence.  In W Lewin & Co v Chanock (ex parte Chanock) 1922 OPD 127 an attorney applied for an extension of time within which to file his plea on the ground that his client was absent from the union.  The court granted the application but ordered him to pay the costs of the appearance on behalf of the other party.  It is undisputed that applicant was at the relevant time outside the country.

            It is not in dispute that the respectful legal practitioners were negotiating the merits or demerits of this matter.  It is also a fact that applicant had entered an appearance to defend but had actually filed his plea and counter claim though out of time.  This is clear testimony that she had always intended to defend this matter.  Her failure to act timeously can not therefore, in my view, be regarded as mala fide.  In the

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absence of proof ofmala fide this court can not presume it.  It appears applicant has a defence which she wants to put forward.  It is in the interest of justice that such defence be allowed and subsequently tested.  The fact that there were negotiations whether about the merits or procedure in the proceedings in my opinion, applicant was indeed entitled to rely on them  See Badenhorst v Van Der Leew 1934 NPD 302.

            Despite the fact that applicant was outside the country she not only continued to communicate with her legal practitioner but went to an extent of giving her husband Power of Attorney to deal with this matter, this to me, goes to prove herbona fides in this matter, that is she intended to defend this matter, see Hooper v Hooper 1908 EDC 46.

            The attitude of respondents’ through their legal practitioners has been that of moving with haste to obtain a default judgment.  It appears Mr Ndove was eager to obtain a default judgment at the slightest opportunity, disregarding the need for courtesy when dealing with a fellow legal practitioner.    While it is understood that a legal practitioner aims to satisfy his client’s expectations, sight should not be lost that a legal practitioner owes his colleagues fair treatment.  It is that fairness which equally and fairly puts him in the category of honourable men and women of the profession.  I find that applicant has shown a good cause for the upliftment of the bar.

            The following order is therefore made:-

It is hereby ordered that:-

  1. The default judgment granted by this honourable court in favour of the respondents on the 14th of March 2003 under case No. HC 2866/02 be and is hereby rescinded and any change of name since effected by the respondent at


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the Deeds Office in respect of the subject property pursuant to the said default judgment shall forthwith be reversed, failing which the Deputy Sheriff of this

Honourable Court be and is hereby directed and authorised to do all such things and sign all such papers as may be necessary to reverse any such transaction pending the outcome of the proceedings instituted by the respondents under case number HC 2866/02.

  1. Applicant’s plea and counter claim filed on 5 February 2003 is and hereby declared valid.
  2. The costs of this application shall be costs in the cause in the main action under case number HC 2866/02.


Joel Pincus, Konson & Wolhuter,applicant’s legal practitioners

T Hara & Partners,respondent’s legal practitioners