Court name
Supreme Court of Zimbabwe
Case number
SC 74 of 2002
Civil Appeal 284 of 1999

Sibanda v Ntini (284/99) (SC 74 of 2002, Civil Appeal 284 of 1999) [2002] ZWSC 74 (25 March 2002);

Law report citations
Media neutral citation
[2002] ZWSC 74




REPORTABLE
(60)














Judgment
No S.C. 74\2002


Civil
Appeal No 284\99

















BAFANA
SIBANDA v JOSIAH NTINI











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


BULAWAYO
MARCH 26, 2002








R.
Ndlovu
,
for the appellant





C.
Mashoko
,
for the respondent









MALABA JA:
This appeal is against a judgment of the High Court dated 16
September 1999 in which the appellant’s application
for rescission
of a default judgment granted by the same court to the respondent on
11 June 1997 was dismissed with costs. We dismissed
the appeal
after hearing submissions by Mr
Ndlovu,
for the appellant, having found it unnecessary to hear counsel for
the respondent. We indicated that our reasons for the decision
would follow. These are they.





The
respondent (Josiah Ntini) owned premises known as Thandabantu Store
situated at Sikombingo Business Centre in Lower Gweru.
In June 1987
the appellant leased the shop at a monthly rental of $250 which he
was to start paying as from 1 January 1990 after
recovering costs of
repairing a toilet at the premises.





When the
monthly rentals became due and owing after 1 January 1990 the
appellant failed to pay them forcing Josiah Ntini to issue
summons
out of the magistrates court in Gweru on 23 October 1995 claiming
against him an order of eviction from the shop and payment
of the sum
of $17 250 being arrear rentals for the period extending from 1
January 1990 to 30 September 1995. The appellant did
not enter an
appearance to defend the action. Josiah Ntini however discovered
that the claim for the payment of $17 250 was in
excess of the
magistrate’s court jurisdiction. That claim was withdrawn on 17
January 1996, default judgment for the eviction
order having been
entered against the appellant on 19 December 1995. On 21 February
1996 the appellant was evicted from the shop
by the Deputy Sheriff.





On
11 April 1996 Josiah Ntini issued summons out of the High Court
claiming from the appellant payment of the sum of $18 500 being
arrear rentals from 31 January 1990 to 21 February 1996 when he was
evicted from the shop. The summons was served on the appellant
on 3
June 1996. He entered appearance to defend but failed to file his
plea within the time limited by the High Court of Zimbabwe
Rules
1971. A notice of intention to bar was served on the appellant’s
legal practitioners on 9 August but he failed to file
the plea within
four days of the service of the notice resulting in the bar being
effected and default judgment granted against him
on 11 June 1997.





On
17 November 1997 six head of cattle were attached at the appellant’s
homestead following a writ of execution issued on 24 September.
The
return of the execution of the writ shows that the appellant was
present when the cattle were attached. In paragraph 9 of
the
founding affidavit, in support of the application for rescission of
the judgment which he later made, he admits that he witnessed
the
attachment of the cattle by the Deputy Sheriff. The cattle were
removed on 29 January 1998 to be sold at a public auction on
17
February. On 16 February 1998 the appellant’s wife obtained an
interdict from the High Court stopping the sale claiming that
the
cattle belonged to her. The application for the interdict had
followed a rejection by Josiah Ntini of an offer by the appellant
in
January to pay $1 000 per month towards the liquidation of the
judgment debt.





The
legal practitioner who had been dealing with the appellant‘s case
was Mr Malunga. He left Wilmot and Bennet in October 1996.
Mr
Chitere took over the case. Mr Chitere averred that the appellant
approached him in the company of his wife after the removal
of the
cattle in January 1998. The appellant never instructed him to make
an application for rescission of judgment. It was the
appellant’s
wife who claimed that the cattle belonged to her. She later
instructed him to apply for an interdict to stop the
sale of the
cattle by public auction. Wilmot and Bennet renounced agency in
April 1998.





The
appellant made the application for rescission of the default judgment
on 4 September 1998. The application was purportedly
made in terms
of Rule 63 which provides that:-





“(1) A
party against who 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.







  1. 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.”










It is clear
from Rule 63(2) that before considering the question whether or not
the application contains a “good and sufficient
cause” for it to
exercise the wide discretion conferred upon it in favour of the
applicant, the court must be satisfied that the
application has been
made (that is set down for hearing and not just filed with the
Registrar) within one month of the date when
the applicant had
knowledge of the default judgment or that an application for
condonation of non-compliance with Rule 63(1)has been
made and
granted. It must follow from the provisions of Rule 63(1) that an
application for rescission of a default judgment would
not be
properly before the court if it is made after the expiry of one month
from the date the applicant, had knowledge of the judgment
which date
he must disclose in the application failing which it will be
presumed, in terms of Rule 63(3), to be the second day after
the date
of the judgment. A similar observation was made by SANDURA JA in
Viking
Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd

1998 (2) ZLR 249 (S) at 251 C-E:-






“In
terms of r 63(1), a defendant against whom a default judgment has
been granted has a period of one month, from the time he becomes
aware of the judgment, within which to file an application for the
rescission of that judgment. If he does not make the application
within that period but wants to make it after the period has expired,
he must first of all make an application for the condonation
of the
late filing of the application. This should be done as soon as he
realises that he has not complied with the rule.






If
he does not seek condonation as soon as possible, he should give an
acceptable explanation, not only for the delay in making the
application for the rescission of the default judgment, but also for
the delay in seeking condonation.”









The
application for rescission of the default judgment was filed on 4
September 1998 but set down for hearing on 30 July 1999 which
is the
date when the application was made.
Theunissen
v Payne

1946 TPD 680 at 685. The appellant did not disclose the date when
he had knowledge of the default judgment. Whilst admitting
that he
witnessed the attachment of the cattle by the Deputy Sheriff in
execution of the judgment on 17 November 1997 he did not
say that was
the first time he became aware of the default judgment. The
presumption that he had knowledge of the judgment two
days after it
was granted must apply. As the default judgment was granted on 11
June the appellant ought to have made the application
for rescission
of judgment not later than 13 July 1997. There was no application
for condonation of the failure to comply with
the provisions of Rule
63(1). The application which the court
a
quo

heard on 30 July 1999 was not properly before it as it was not an
application made in terms of Rule 63(1). Mr
Ndlovu,
for the appellant, conceded the application ought to have been
dismissed for non-compliance with the rules.





We
accordingly dismissed the appeal with costs.









CHIDYAUSIKU
CJ: I agree





ZIYAMBI
JA: I agree






James,
Moyo-Majwabu and Nyoni
,
appellant's legal practitioners


Jumo
Mashoko and Partners
,
respondent's legal practitioners