BARBOSA DE SA v BARBOSA DE SA
SUPREME COURT, HARARE
[Civil Appeal SC 34-16]
October 30, 2014 and July 21, 2016
GARWE, HLATSHWAYO AND GUVAVA JJA
Practice and procedure – Application made under rule 63 – When court can determine it under rule 449.
A judge has the power, and is obliged to mero motu premise his decision on r 449 (1)(a) of the High Court Rules, 1971, despite the application having been made in terms of r 63, where it is clear from the papers that default judgment was granted in error.
Associated Provincial Picture Houses Ltd v Wednesbury Corp  EWCA Civ 1;  1 AC 223;  1 KB 223;  2 All ER 680; (1947) 177 LT 641; (1947) 63 TLR 623; (1947) 45 LGR 635;  LJR 190; (1947) 112 JP 55, referred to
Marimo v Mpofu 2004 (2) ZLR 73 (H), referred to
Mukambirwa & Ors v The Gospel of God Church International 1932 2014 (1) ZLR 207 (S), followed
Munyimi v Tauro 2013 (2) ZLR 291 (S), followed
Zvokusekwa v Bikita Rural District Council SC 44-15 (unreported), followed
High Court Rules, 1971 (RGN 1047 of 1971), O 9 r 63, O 49 r 449 (1)
Supreme Court Rules, 1964 (SI 380 of 1964), rr 32, 43 (1)
T Magwaliba, for the appellant
EWW Morris, for the respondent
This is an appeal against the judgment of the High Court dated 28 May 2014. The background to this matter may be summarised as follows:
The appellant and the respondent are siblings. The appellant, through his company Carnerstown SA based in Geneva, had a 100 per cent shareholding in Zincar (Pvt) Ltd (“Zincar”), a company duly incorporated in Zimbabwe. On 29 May 1995, the appellant sold to the respondent 15 per cent of the shares in Carnerstown SA. In terms of their agreement, the respondent was entitled to 50 per cent of the net profit in Zincar at the end of each financial year. In March 2007, Carnerstown sold its shareholding in Zincar to a South African company for US$ 1 500 000 at which point the appellant allegedly undertook to pay to the respondent the sum of US$ 191 250, which sum represented the 15 per cent share of the proceeds of the sale of Zincar after deducting expenses.
The US$ 191 250 was to be paid by way of instalments which were to be staggered as follows:
• US$ 16 000 initial instalment, and
• Instalments of US$ 15 937 every 60 days.
The appellant is alleged to have paid only US$ 32 000 of the US$ 191 250. The respondent thereafter caused summons to be issued against the appellant in the court a quo claiming an amount of US$ 155 000. The matter was set down for trial on 18 June 2008. The appellant was in default and judgment was entered against him.
The appellant then filed an application for the rescission of the default judgment. During the hearing in the court a quo it was not in dispute that the appellant had not been aware of the trial date as there was a mix up of notices of set down emanating from the Registrar’s office. The court a quo nevertheless proceeded to dismiss the application on the basis that the appellant had not established “good cause” in terms of O 9 r 63 (2) of the High Court Rules, 1971, (RGN 1047 of 1971) such as would have warranted the rescinding of the judgment. The court stated the following on 5 of the cyclostyled judgment:
“Should I therefore exercise my discretion in favour of the applicant and grant him the indulgence of rescission? I think not. There is nothing that the applicant can present to the trial court as a meaningful defence. Mr Morris was right in saying that he possesses ‘no earthly prospect of a defence’ to the claim.”
Aggrieved by this decision, the appellant approached this Court on the following grounds:
“(a) The honourable court a quo erred in law in dismissing the application for rescission of default judgment without affording the appellant an opportunity to be heard at trial.
(b) The honourable court a quo erred in dismissing the application even though respondent conceded that there was no wilful default on the part of the appellant and notwithstanding that appellant demonstrated the existence of triable issues which were bona fide in nature and which prima facie carried some prospects of success at trial.
(c) The honourable court a quo, with respect, erred in finding that the respondent’s claim against the appellant in his personal capacity, when the transaction involved Carnerstown Corporation SA of Monrovia, which sold its shares in Zincar (Pvt) Ltd to another entity, which sale proceeds accrued to Carnerstown Corporation SA and not the appellant, which issue can only be determined and resolved at a trial.
(d) The honourable court a quo erred at law in its finding that it had jurisdiction to hear the matter notwithstanding that Carnerstown Corporation is domiciled in Switzerland and does not conduct its business in Zimbabwe. The purported cause of action thus arose from the sale of shares in a jurisdiction outside Zimbabwe and should be determined in that jurisdiction.”
Three preliminary points were raised by the respondent in his heads of argument and at the hearing as follows:
(1) Appellant filed his heads of argument out of time;
(2) Appellant’s grounds of appeal were meaningless and did not comply with r 32 of the Supreme Court Rules, 1964; and
(3) Appellant’s notice of appeal was fatally defective.
The first preliminary point raised by Mr Morris for the respondent was that the appellant had filed his heads of argument out of time. In terms of r 43 (1) of the Supreme Court Rules, 1964 (SI 380 of 1964), the Registrar is required to call upon the appellant to file heads of argument once he has received the record of proceedings. Correspondence in the record reveals that the Registrar made it clear to the parties that they would be advised to file their heads of argument once he had received the record. This letter was issued by the Registrar on 2 September 2014. A perusal of the record of proceedings shows that the record was only received by the Registrar on 4 September 2014. The appellant filed his heads of argument on 5 September 2014. It therefore becomes unimaginable how the appellant can be said to have failed to file the heads of argument within the stipulated time, when it is evident that no correspondence was issued by the Registrar calling upon the parties to file heads of argument and they were filed a day after receipt of the record by the Registrar. As such, this preliminary point in my view has no merit and is dismissed.