ABEL SHONHIWA MAROVATSANGA
CITY OF HARARE
HIGH COURT OF ZIMBABWE
HARARE, 6 March 2015 and 17 June 2015
R Kunze, for the applicant
B Diza, for the respondents
BHUNU J: On 7 February 1996 the Applicant issued a court application against the first and second respondents claiming their eviction and all those claiming occupation through them from house number 709 Mabvuku Township, Harare under case number HC1046/96.The application was opposed.
Due to the existence of a material dispute of facts the matter was referred to trial sometime in June 1996. After some inordinate delays the matter was eventually set down for a pre-trial conference on 30 September 2014 before Mawadze J. The applicant and his legal practitioner defaulted resulting in the learned judge issuing a default order dismissing the applicant’s claim hence this application for rescission of judgment in terms of r 63.The rule provides that:
“63. Court may set aside judgment given in default
(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.
(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.
(3) Unless an applicant for the setting aside of a judgment in terms of this rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”
The first and second respondents have however, raised a preliminary point arguing that the application is misplaced and incompetent at law because there was no default judgment issued against the respondents because the dismissal order does not amount to a default judgment which can be rescinded. Counsel for the defendant insinuated that the plaintiff ought to have treated the default order as absolution from the instance in terms of r 62 which reads:
“62. Defendant may be absolved where plaintiff makes default
When on the calling of any case the defendant appears in court personally, or by his counsel, and the plaintiff makes default, the defendant shall be absolved from the said suit or action, unless sufficient cause to postpone the same, or to make some other order therein, appears to the court”
The crisp issue for determination is whether the order issued by the learned Judge in the absence of the plaintiff can be rescinded or set aside in terms of r 63. In Mike Belinsky v Tonderai Chipere HH 74-12 plaintiff and his legal practitioner failed to turn up at a pre-trial
conference as happened in this case. In consequence whereof, the defendant obtained an order dismissing plaintiff’s claim with costs. Following the dismissal of his case in absentia plaintiff reissued fresh summons. Defendant objected to the issuing of fresh summons arguing that the Plaintiff was obliged to apply for rescission of judgment first in terms of r 63.
On those facts Hungwe J held that the plaintiff had two options to treat the order as one of absolution from the instance and issue fresh summons in terms of r 62 or apply for rescission in terms of r 63. In coming to that conclusion the learned judge was at pains to emphasise that whichever route the plaintiff decides to take the overriding consideration is to do justice without slavish adherence to rules. This is what the learned Judge had to say:
“The dismissal of the Plaintiff’s claim, where it is obtained in default, is not as drastic an order as it may sound. In my view, this accords with the rational of the Rules which is to achieve justice only after each party has had his or her day in court. To hold otherwise would in my view subject the procedure to mere technicality without achieving the desired end which is to do justice between the parties.
Thus where an order such as the one granted on 22 April 2008, is in issue, it can hardly be said that such an order determined the matter finally.”
I am in respectful concurrence with the learned judge’s sentiments. In my view the overriding consideration is to do real and substantial justice without fastening onto legal technicalities which may lead to gross injustice.
The Rules do not define the word judgment we therefore have to look at the ordinary dictionary meaning of the word. According to the Thesaurus Dictionary a judgment is synonymous with, a ruling, decision, finding, verdict, sentence conclusion, result or decree. Thus the word judgment has a broad meaning. That being the case, restricting its meaning may lead to injustice. This explains why the legislator conferred a wide discretion on judges and the court to depart from the rules in order to do justice between the parties.
It appears to me that by whatever name the order given in the absence of the other party may known, it can be rescinded, set aside or reversed on good cause shown. It does not matter from whatever angle you may look at r 62 and 63, the net result is the same. The common purpose is to achieve justice on the merits rather than technicalities.
For the foregoing reasons I come to the conclusion that the objection in limine is unsustainable. It is accordingly ordered that the objection be and is hereby overruled.
Chihambakwe, Mutizwa and Partners, applicant’s legal practitioners
Wilmot and Bennet, 1st and 2nd respondents’ legal practitioners