Judgment No. HB 97/2004
Case No. HCA 97/2002
IN THE HIGH COURT OF ZIMBABWE
CHEDA & NDOU JJ
BULAWAYO 24 MAY & 3 SEPTEMBER 2004
J Tshumafor appellant
C P Moyofor respondent
CHEDA J: This is an appeal against the decision of the magistrate court sitting in Bulawayo on 9 September 2002 wherein appellant’s application for rescission of a judgment under case number CC/00/02 was dismissed.
The historical background of this matter is that the parties were married to each other under the registered customary law. Their marriage experienced problems which resulted in respondent issuing summons against appellant on 10 June 2002 at the magistrate court in Bulawayo. On 22 July 2002 respondent caused summons to be published in the Chronicle. On 2 August 2002 appellant through his legal practitioner filed a notice of appearance to defend. On 8 August 2002 respondent’s legal practitioner instructed the clerk of court to set down the matter for trial on 19 August 2002. On 14 August 2002 respondent issued a notice of set down for the matter to be heard on 19 August 2002. Default judgment was granted on 19 August 2002. Appellant through her legal practitioner filed an application for a rescission of judgment on 27 August 2002 which was vigorously opposed by respondent. This application was dismissed by the Provincial Magistrate.
Mr Tshuma for appellant has argued that the default judgment was improperly obtained in that the Magistrates’ Court Act Chapter 7:10 and its rules were not observed by the court a quo and the accepted rule of practice amongst legal practitioners was ignored culminating in respondent snatching the judgment as it were.
It is his contention that respondent did not seek leave from the court in order to serve summons by substituted service in terms of order 7 rule 9. The rule requires that the applicant, in this case respondent should have shown that he has failed to effect service through normal means and therefore applies for an order to serve by substituted service. It is clear that no such application was made by respondent and no such order was granted by the court.
Secondly, respondent immediately after receiving notice of appearance to defend applied for a trial date. Applicant should within seven (7) days after entry of appearance to defend file a plea. Order 16 rule (1) provides:
“The defendant shall within seven days after entry of appearance to defend deliver a statement in writing to be called a plea.”
If defendant fails to do so, plaintiff is obliged to call upon him to do so within 48 hours failing which the matter is set down and a judgment may then be obtained. In casu, respondent through his legal practitioner did not do so but merely set the matter down and obtained a default judgment.
The procedure adopted by respondent was to say the least irregular. It would appear that he did not wait to give appellant a chance to be heard. It is not clear what respondent’s legal practitioner did at the clerk of court’s office which resulted in
that office suspending all the general practice and rules of procedure at the magistrates’ court.
On the day of the hearing no evidence was led in terms of section 7 of the Matrimonial Causes Act, basically to show that the marriage has broken down. The court a quo seems to have also followed a clear dictation by the legal practitioner and granted a divorce. In view of the fact that the rules were not followed from start to finish the learned trial magistrate should have not granted the divorce order.
Appellant applied for a rescission of judgment and this was dismissed. However, what is of great concern to us is that there is no record of proceedings wherein one can glean reasons for that decision.
The judgment reads:
“Application for rescission is dismissed as there is no on the part of the respondent’s and the applicants client has not indicated what she wants and why she has not indicated how soon she can be available for the finalisation of the case. It is dismissed with costs.”
Respondent has always been aware that appellant wanted to defend this matter. This being a matrimonial matter and the ancillary relief matters need to have been delved into. Appellant therefore has a bona fide defence. The basic requirement for a rescission of judgment is for the court to examine whether applicant was in wilful default and whether he has a bona fide defence. All these requirements were not considered by the court a quo.
Mr Moyo’s conduct was not in accordance with the normal legal practice when dealing with other legal practitioners. His attitude towards Mr Tshuma is to be deplored. It is extremely essential for legal practitioners to understand that clients come and go but the profession remains. There is therefore a limit to the lengths a
legal practitioner should go in order to please a client. While it is a legal practitioners’ duty to act in the best interest of his client, he should always guard against the behaviour and conduct which can lead others into questioning his motives in handling such matters.
Mr Tshuma has urged this court to order costs at a higher scale. I find merit in this argument. Had Mr Moyo properly advised his client and he himself followed the rules this matter would not have reached this level. It is for this reason that the court should show its indignation by saddling respondent with costs on the superior scale.
This appeal accordingly succeeds with costs at attorney and client scale.
Ndou J …………………. I agree
Webb, Low & Barry appellant’s legal practitioners
Majoko & Majokorespondent’s legal practitioners