NGUNGUNYANA HOUSING COOPERATIVE versus

EGOROCK INVESTMENTS [PVT] LTD

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE: 19 May 2016 & 5 May 2017

Opposed application

I. Sithole, for the applicant

No appearance for the respondent

MAFUSIRE J: This was an opposed application. I heard it in motion court in Harare on 19 May 2016. There was no appearance by the respondent. But after submissions by applicant's counsel I dismissed the application with no order as to costs. I gave my reasons ex tempore and heard nothing further afterwards. Only in early March 2017, thus almost a year later, and now having been deployed permanently to the newly opened High Court station at Masvingo ^l , was I given the record in the matter, and a letter dated 13 February 2017 from the applicant's legal practitioners requesting "full" reasons for judgment. No details accompanied the request. There was no explanation why the request was coming so late in the day. And since I had given my full reasons for judgment ex tempore, I just supposed that what was sought were, in fact, written reasons. But I have failed to understand such dilatoriness.

Nonetheless, here are the written reasons for my judgment.

The application was for rescission of judgment. It was opposed. I dismissed it for three major reasons, namely, 1] that the application was way out of time and that there was no application for condonation; 2] that the applicant had been in wilful default, and 3] that the applicant had no defence to the respondent's claim on the merits.

Here are the details.

1 With effect from 1 September 2016

The background facts

The "judgment" the applicant sought to rescind was granted in default on 12 December 2012. It was not a judgment per se, but an order of summary judgment.

In the main action, under the case reference no. HC 12041/12, the respondent sued the applicant for $864 563. The applicant entered an appearance to defend. The respondent applied for summary judgment. The applicant filed no opposing papers, hence the default "judgment".

The application for rescission of judgment was filed on 21 March 2014. That was one year and some four months after the default "judgment". Order 9 r 63 of the Rules of this Court provides that a party against whom judgment has been given in default may make a court application to have it set aside, not later than one month after he has had knowledge of the judgment.

b] Non-disclosure or concealment of material facts

The applicant's founding affidavit was by someone calling himself the interim chairman. He said the applicant had got to know about the default judgment only on 5 March 2014 when the respondent's lawyers had telephoned him about the respondent's intention to execute. If that had been the case, then the delay in filing the application would have been a mere sixteen days after knowledge of the judgment, thus well within the one month per10d allowed by the Rules. But that was not the case. The respondent sufficiently demonstrated that the deponent was being untruthful. At best for the deponent, he had deliberately concealed considerable information of crucial relevance. At worst, he was lying openly

The applicant, i.e. the corporate entity itself, not the deponent as an individual, became aware of the judgment soon after it had been granted. Not only that, but also the applicant's deponent himself became aware of it, not on 5 March 2014 as he alleged, but on 14 December 2013.

The applicant was a cooperative society. By s 54, as read with s 57 of the Cooperative Society Act, [Cap 24:05], the management committee of a cooperative society is the one vested with the conduct and management of the affairs and business of the society.

In the founding affidavit, the applicant's deponent concealed the aspect of the unrestrained and prolonged tussle for office by the two factions of the applicant's management committee at about the same time the respondent was suing for its money. The deponent's faction muscled its way into office by deposing the other faction. There was no evidence that the deponent's faction had done so procedurally. On the contrary, the process by which the deponent's faction had seized office manifestly violated s 54[1] of the Act, in that among other things, a management committee assumes office upon being elected at a general meeting, not by coercion. However, I did not have to deal with this particular aspect. It was not an issue before me.

Be that as it may, the most pertinent aspect concealed by the applicant, but revealed by the respondent, was that the faction of the management committee of the applicant then in office at the relevant time had been told about the default judgment on 14 December 2012. That was a mere two days after the default judgment had been entered. The respondent did not merely allege this fact. It actually proved it by, among other things, attaching relevant correspondence. Furthermore, the applicant's deponent, wittingly or unwittingly, confirmed it, not only in the answering affidavit, but also in some supplementary affidavit that, incidentally, purported to re-write the applicant's cause of action afresh.

The applicant's deponent, both in the answering affidavit as well as the putative supplementary affidavit, also confirmed that indeed his team was one of two factions fighting for control of the applicant's management committee. His faction ended up reporting the other faction to the police for alleged fraudulent dealings or corruption or non-disclosure of pecuniary interests or conflict of interest in the contract between the applicant and the respondent. His faction also ended up reporting the applicant's erstwhile legal practitioners to the Law Society of Zimbabwe for alleged unprofessional or dishonourable conduct in allegedly having allowed the default summary judgment to be entered in their wake and then failing or neglecting to take steps to rescind it. However, these erstwhile lawyers easily proved to the Law Society that there had been two factions fighting for control of the applicant's management committee; that the faction in office at the time the summary judgment had been entered had accepted their wise counsel that the money was due and that therefore an application for rescission of judgment would be an abuse of the court process; that the applicant, through the old management committee, had then made arrangements to pay the judgment amount; but that before payment could be made, the applicant's deponent and his faction had seized office, and that he and his team were now trying to reverse everything done by the old committee.

What was lost to the applicant, and incredibly, to its counsel as well, was that it was not the date when the deponent purportedly became aware of the judgment that the dies induciae for rescission would be calculated, but rather, the date when the applicant, through the management committee then in office at the time, had become aware. That date was a mere two days after the default judgment had been entered. The date the deponent himself had allegedly become aware of the judgment was irrelevant. He and/or his faction were not the applicant. The applicant was the corporate entity which, in terms of s 21 of the Act, was, among other things, capable of suing and being sued in its own registered name.

But the respondent also proved that the applicant's deponent himself became aware of the judgment, not on 5 March 2014 as he alleged, but, at the very least, on 14 December 2013. At around that time, the respondent's officers were engaged in amicable efforts with the applicant's old management committee for a payment plan that would avert the writ of execution. That was when the deponent's faction deposed the old faction from office. It went on to place adverts in the print media advising of its coming into office. One of the adverts caught the respondent's attention. Its officers immediately caused its lawyers, in their presence, to talk to the applicant's deponent about the judgment and the efforts already underway to have it liquidated. To all this detail, and more, the applicant's deponent, in the answering affidavit, simply said "No issues"! How could there be no issues when the respondent was directly contradicting and refuting the very essence of the applicant's cause of action and the fåctum probandum in the founding affidavit?

Therefore, quite apart from the fact that the applicant had got to know about the judgment two days after it was granted as shown above, its deponent had personally become aware of the judgment on 14 December 2013. Going by the one-month rule of r 63, and even accepting for a moment that it is only from the date when the deponent had personally become aware of the judgment that the dies induciae would start to run, which of course, is not correct, then it means the applicant had until 14 or 15 January 2014, or even up to the end of that month, if allowance should be made for weekends and public holidays, to apply for summary judgment. But as already been said, the application was only filed on 13 March 2014. By then, the application was way out of time.

In my view, a party that conceals material information must be unworthy of protection or assistance by the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter, even those that you may perceive to be adverse to the relief that you want.

c] Application out of time, and no condonation sought

Where a litigant is out of time for doing something authorised by the Rules, for example, applying for rescission of judgment within the one month window period, he or she may apply for condonation in terms of Order 1 r 4, showing why he or she was out of time; by how much he was out of time; how reasonable his explanation for the delay is; what his prospects of success on the merits are, and so on: see Kombayi v Berkhout² .

In this case, I never had to deal with an application for condonation. The applicant steadfastly refused or refrained from making one. This refusal was made unequivocally not only in the answering affidavit after the respondent had pointed out the omission in its opposing affidavit, but also in the heads of argument, and in oral submissions at the hearing. The applicant insisted that it was not out of time and said the dies induciae started to run only from 5 March 2014 when its deponent allegedly became aware of the judgment. That was odd. The applicant was playing Russian roulette. So having made its bed of roses, it had to lie on it.

The application for rescission of judgment being way out of time, and there being no application for condonation, the applicant was non-suited. That really should have been the end of the matter. But it was not. In an application for rescission of judgment under r 63 the court can set aside the default judgment if it is satisfied that there is good and sufficient cause to do so. The phrase "good and sufficient cause" has been explained in a glut of cases to mean that the applicant has to give a reasonable explanation for the default; show the bona fides of his application for rescission, and show his prospects of success on the merits: see Roland & Anor v McDonne11³ ; Songore v Olivine Industries (Pvt) Ltd; and Stockill v Griffiths⁵ . These aspects are considered, not individually, but cumulatively in conjunction with one another and with the application as a whole: Stockill's case at 1731) - F.

d] No good and sufficient cause shown

² 1988 [1] ZLR 53 [SC] ³ 1986 [2] ZLR 216 ⁴ 1988 [2] ZLR 210 [S] ⁵ 1992 [1] ZLR 172 (S]

In the founding affidavit, the applicant's deponent claimed, among other things, that the applicant had parted ways with its erstwhile lawyers when the respondent's summons in then main action was served. As such, he said, no instructions were given to those lawyers.

But curiously, those same lawyers had gone on to enter an appearance to defend on behalf of the applicant. The default only came about when no opposing papers were filed to the application for summary judgment.

That default to the application for summary judgment was wilful. The debt in question was already being admitted. On this aspect, the applicant's erstwhile lawyers explained in its letter to the Law Society of Zimbabwe dated 23 June 2014 as follows:

"When the cooperative breached the contract the letter of demand was written and later on summons were issued and we entered appearance to defend. The cooperative through a letter dated 15 March 2013 even acknowledged owing and even requested to be given time to pay.

. I wish to state that the contractor used to issue certificates showing the job that would have been done and [the] balance owing. The members of the management committee were aware of the debt and that there was no defence. Considering that this was a public the only honourable option was to negotiate a payment plan." [my emphasis]

The fact that the debt was at all times being admitted was also the reason why there was no application for rescission of judgment seriously made at any time until the applicant's deponent's faction took office. For example, the City of Harare, the local authority which, among other things, had allocated to the applicant for housing development, the land the respondent had to develop, and which would approve any developmental plans had, at some meeting attended by the parties ' representatives, demonstrated the work done by the respondent and the adjustments remaining to be made. The City of Harare's representatives had implored the applicant to tender a payment plan. The applicant's deponent did not refute this. All he said was that at that time the old management committee had fallen out of favour with the members of the applicant. But I have already shown the folly of this argument.

Furthermore, and as already demonstrated, the applicant became aware of the default judgment two days after it was entered. Thereafter, the parties did enter into negotiations for the liquidation of the judgment amount. From the putative supplementary affidavit by the applicant, it emerged that its erstwhile lawyers had at one time been pressurised to apply for rescission of judgment and that they had actually filed some papers under HC 3901/13. However, good conscience and common sense had apparently prevailed eventually. The applicant accepted wise counsel. The application was abandoned. Efforts were then devoted towards settling the judgment debt. It was all there in the applicant's own papers, albeit filed after the event. Therefore, it was very difficult to discern on what leg the applicant was possibly standing to prove good and sufficient cause,

The same situation abounded with regards to the prospects of success of the applicant' s defence on the merits.

The applicant's deponent claimed the respondent was not due the judgment amount because, allegedly, it had done half, or less than half, of what it had been contracted to do. The deponent extrapolated some figures and some information and came to the conclusion that the respondent had in fact been overpaid for the little job it had done. He went on to allege that a refund was due to the applicant and that it would sue for it.

The respondent demonstrated how misinformed the deponent was. The original contract had been revised. Following corrective advice by the City of Harare, the job to be undertaken would now be expanded considerably. It would involve, among other things, greater depths for trenches; the use of more extensive materials; the construction of additional infrastructure and the re-designing of some works. All this translated to almost double the original cost. The respondent supplied facts and figures to back up its claim. In contrast, the applicant's deponent resorted to tortuous deductive reasoning. He was just being argumentative.

The applicant had no case.

5 May 2017

Mangwana & Partners, applicant's legal practitioners

Gumbo & Associates, respondent's legal practitioners