Court name
Supreme Court of Zimbabwe
Case number
SC 40 of 2006
Civil Appeal 90 of 2006

Zvinavashe v Ndlovu (90/06) (SC 40 of 2006, Civil Appeal 90 of 2006) [2006] ZWSC 40 (06 December 2006);

Law report citations
Media neutral citation
[2006] ZWSC 40


REPORTABLE ZLR (48)









Judgment
No. SC.40/06


Civil
Appeal No. 90/06









CHRISTOPHER ZVINAVASHE v
NOBUHLE NDLOVU








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & GWAUNZA JA


HARARE,
OCTOBER 31 & DECEMBER 7 2006








K
Gama
, for the
appellant





D
Dindikwa
, for the
respondent









GWAUNZA
JA: The appellant purports to appeal against a judgment of the High
Court, which was granted in default after he, as the
applicant, had
failed to appear.







The respondent, in the court a
quo,
issued summons
against the appellant for recovery or transfer to her of certain
items of property acquired during the period in which
the two
co-habitated. It is not in dispute that the appellant failed to
timeously enter appearance to defend the action, leading
to a default
judgment being entered against him. The appellant subsequently filed
two applications; the first one for rescission
of the judgment
entered in default of his appearance and the second one for a
provisional order interdicting the respondent from
executing the
judgment pending the determination of the application for rescission.






On
the date of hearing of the application for rescission of judgment,
the appellant was in default, a circumstance that led to the
respondent’s legal practitioner successfully applying for the
dismissal of the application for want of prosecution.






It is at this juncture pertinent
to refer to Rule 62 of the High Court Rules, which deals with just
such a situation. It reads:






“62
When on the calling of any case the defendant appears in court
                 personally,
or by his legal practitioner, 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.”










There
can be no dispute that the defendant/respondent can only be
“absolved” from the suit or action in question, through the
dismissal of the plaintiff’s - in this case, the applicant’s
case.







The court a
quo
did dismiss the
application, as it properly was entitled to do in terms of Rule 62.
The court also discharged the provisional order
referred to.
However, before dismissing the application, the learned Judge
considered it “proper and prudent” to deal with the
matter on the
merits as they appeared from the papers filed of record.







The appellant does not dispute
that he was in default on the day his application for rescission of
this judgment was to be heard.
Nor does he dispute that, under these
circumstances, the court was entitled to enter default judgment
against him. He however,
takes issue with the fact that, in
dismissing his application, the court
a
quo
had delved into the merits of the matter and given its reasons for
the judgment against him. He contents the resultant judgment
is
appealable.







In reality, as is evident from
its judgment, the court
a
quo
, did not deal only
with the merits of the application for rescission of judgment, it
went beyond that to consider the merits of the
main dispute between
the parties, that is, the action instituted by the respondent
in
casu
, for recovery of
the property referred to earlier.







Although the parties cited
other cases
1,
in support of their respective contentions, they have both in
addition cited the case of
Sibanda
& Ors v Nkayi Rural

District Council
1991 (1) ZLR 32, as authority for the proposition that a default
judgment cannot be appealed against. Rather the proper procedure
is
for the aggrieved party to seek rescission of the judgment.







The appellant, however, calls
upon this Court to “clarify”
Sibanda’s
case (
supra)
in view of the following comments, made by the learned Judge therein:







“That order of 23 May 1997,
as I understand it, was effectively a
                        default judgment.
The practitioner who appeared for the appellants
                        presented
no submissions on the merits. There were no reasons given
                        for
judgment. Once postponement was refused the appellants were
                        effectively
in default.”






The
appellant’s contention, therefore is that the present case, having
been determined on the merits, with reasons for judgment
being given,
was appealable. In other words, the appellant is arguing that the
tendering of reasons for the judgment had, somehow,
divested what
otherwise would have been an ordinary default judgment, of its
“default” nature, and left in its place a judgment
that was
appealable.







I do not find the appellant’s
argument to be persuasive. The defining feature or essence of a
judgment granted after a party
fails to appear is the “default”
of the absent party, that is his failure to do what he ought to have
done.
In
casu,
what the appellant failed to do was to appear and prosecute the
application. Hence a judgment by default has been defined as one
obtained by “non resistance” (per JARVIS CJ in
Prev
v Square
10 CB 915,
cited in Strouds Judicial Dictionary 5 ed at p 659).







Counsel for the respondent
contends correctly that a default judgment can only be set aside by a
successful application for rescission
of the judgment under the rules
of the relevant court. The application must be made by the
defaulting party himself, as indicated
by the expression, “purging
his default”. It follows that
in
casu,
the appellant’s
default remained unpurged even as the learned Judge
a
quo
considered the
merits of the matter and gave reasons for his judgment. By virtue of
Rule 62 the learned Judge
a
quo
could simply have
“absolved” the respondent from the application, that is,
dismissed it, as long as he was not considering postponing
the
application or making any other order. The consideration by the
Judge
a quo
of the merits of the case, and the giving of his reasons for
judgment, therefore had no effect on the status of the judgment
given,
which remained that of a default judgment.







It should be noted that the
court normally considers issues like the explanation for a default,
the
bona fides
of the applicant and the prospects of success on the merits, within
the context of an application for rescission of judgment or
condonation
of the late filing of papers required by the rules of the
court, to be filed within a given time frame. There was, in my view,
therefore
no call for the court
a
quo
to consider such
issues in its determination of an oral application for the dismissal,
for want of prosecution, of the appellant’s
application for
rescission of judgment. This is because the very same issues would
come in for consideration in the event that the
appellant
in
casu
decides to approach the court
a
quo
- as he can still
do - for rescission of its judgment dismissing his application.







There was, also, no call for
the court
a
quo
to consider the merits, on the papers, of what in effect was an
action which, in the ordinary course of events, fell to be determined
upon consideration of oral evidence led during trial.







Be that is it may, the decision
by the court
a quo
to dismiss the appellant’s application, effectively for want of
prosecution, was correct. As has already been explained, that
decision remained a default judgment whose setting aside could only
follow a successful application for its rescission.







For the avoidance of doubt, it
is declared that the giving of reasons for the default judgment in
question, by the court
a
quo,
was unnecessary
and consequently, of no force or effect. It does not convert the
default judgment into a judgment on the merits.


Sibanda’s
case
(supra)
in my opinion, does not need any clarification, despite its reference
to reasons for judgment not having been given. Having read
that
judgment in full, I am satisfied the appellant has misinterpreted the
import of the comments cited. In that case the applicants
in an
application for rescission of a default judgment sent their legal
counsel to appear on the scheduled hearing date, with instructions
not to prosecute the application, but to seek a postponement. The
court turned down the request for postponement and proceeded to
dismiss the application, prompting the applicants to file an appeal
to this Court. The learned Judge of Appeal noted that the judgment
was effectively a default judgment which could only be set aside
through an application for its rescission. The comments in question,
in my view, were made by way of emphasising why the judgment was
regarded as a default judgment, as opposed to one that was reached
after consideration of submissions on the merits. The absence of
submissions on the merits, and the lack of the resultant reasons
for
judgment, are characteristics of a judgment given in default. I am
satisfied the comments cannot and should not be, interpreted
to mean
that a default judgment in which, rightly or not, reasons for
judgment are given, is appealable. As I have already made
clear,
reasons or no reasons, a default judgment remains that until it is
set aside in the prescribed manner.






This
“appeal” was in reality not properly before this Court. I have
made reference to “appeal” and “appellant” merely
for
convenience.





In
the result the appeal, such as it is, is struck off the roll with
costs.














CHIDYAUSIKU
CJ: I agree.














SANDURA
JA: I agree.















Madzivanzira & Partners,
appellant's legal practitioners


Muskwe
& Associates
,
respondent's legal practitioners









1Ramvali
Trust’s Trustees v UDC & Ors 1998 (1) ZLR 110; Sparks v David
Polliack & Co (Pty) Ltd 1963 (2) SA 491; Argos Fishing
Co Ltd v
Friopesca SA 1991 (3) SA 255