CITY LINK COACHES (PRIVATE) LIMITED
Versus
THE SHERRIFF
And
CROCO PROPERTIES (PRIVATE) LIMITED
HIGH COURT OF ZIMBABE
MATHONSI J
HARARE,14 May and 21 May 2014
Opposed
application
J.
Makarichi, for the applicant
Ms E. Shumba, for the respondent
MATHONSI
J: Just how a legal practitioner, who is an officer of this court and is
required to assist the court in dispensing justice can file an application such
as the present, which is completely devoid of merit, fail to file heads of
argument and when he is served with a notice of set down for the hearing of the
application exactly a month before the set down date, fails to do anything only
to file a notice of renunciation of agency a day before the set date, is one of
those mysteries of this profession we will never solve. It is difficult to
comprehend how such a professional is able to find sleep at night and return to
his office the following day expecting the courts to take him seriously.
In Hughber Petroleum (Pvt) ltd and Another
v Nyambuya and Anor HH 78/14
I bemoaned the egregious departures from proper professional behaviour
by legal practitioners which is now the order of the day in this jurisdiction.
It would seem that we are not moving anywhere in the direction of holding legal
practitioners down to proper behaviour as some still regard themselves as
vehicles for abuse of court processes in assisting litigants intent on delaying
the enforcement of just claims. There can be no other explanation for the
filing of this application and then the hasty retreat of the legal practitioner
at the last minute leaving the applicant to his devices ,other than that it was
meant to buy time.
On 8 July the Sheriff
for Zimbabwe served summons in HC 5191/13 , a matter in which the respondent
sued the applicant for payment of US$ 76 288-27 in arrear rentals and operating
costs due in terms of lease agreements entered into between the parties, upon
the applicant through the medium of Mrs Green “ who accepted service on behalf
of the defendant as her receptionist.” Instead of entering appearance, the applicant
promptly vacated the premises and then wrote to the respondent through its
Chief Executive Officer, J Makarichi, on 15 July 2013 in the following;
“REF:
TERMINATION OF LEASE FOR 2ND
FLOOR BB HOUSE
We advise that we
vacated the offices on the second floor of BB House. We move (sic) out during
the weekend of 13th and 14th
July 2013.
We have been facing
operational challenges due to low business volumes and we had no choice but to
restructure and scale down our operations. The rentals had also become quite
high for us and we had to seek cheaper accommodation out of the CBD.
We would like to thank
you for your patience and understanding of our situation during our stay at BB
house. We are now making concerted efforts to settle our rental arrears with
you. We will be advising you on our payment plan proposal once we have settled
in at our new place. We shall send one of our staff members to do the
hand-over-take-over of the offices and return the keys.
Yours faithfully
J.Makarichi
Chief Executive
Officer.”
The respondent moved
for default judgment which was granted on 4 September 2013 and on 16 October
2013 the Sheriff served a writ of execution against property upon “Mr
Makarichi” but having failed to identify attachable property belonging to the
applicant , the Sheriff returned a nulla
bona. This application for recission of judgement was then filed on 24
October 2013.
In his founding
affidavit, Jecksen Makarichi, the applicant’s director,stated that although the
summons was served upon Mrs Green on 8 July 2013, she had no authority to
accept any process of the court on behalf of the applicant and that process was
never forwarded to the applicant’s officers. Had the summons been brought to
the attention of the applicant, appearance to defend would have been entered.
He protested that the applicant was not in wilful default. A supporting
affidavit of Louise Green was also attached in which she states :-
“I, Louise Green , do
herby make oath and state that:
1. I
am not a party to this application and the facts herein understated are to the
best of my knowledge and belief true and correct.
2. I
confirm that I was served with what I am made to believe to have been a copy of
summons and declaration in this matter by the sheriff. I still retain that
documents (sic) in my possession for I did not know what to do with them.
3. I
can confirm that none of the officers of this company were made aware of these
summons to the present date. That is all I wish to say.”
This, coming from a receptionist of a
company manning the front office who had, as illustrated by her signature and
identity number acknowledging receipt of a letter addressed to the applicant on
17 October 2012 by the respondent, received other official documents on behalf
of the applicant ,is a trifle. Green does not say why she did not hand over the
summons to her employers as she was expected to do as a receptionist. She does
not explain why she “still retains” the summons not meant for herself.
On the applicant’s defence to the claim
Makarichi began by stating that there is no privity of contract between the
parties because the lease agreements were concluded between the respondent
and “City Link” as opposed to “City Link
Coaches (Pvt) Ltd”. As “City link” is not a legal persona it cannot contract in
law. It is however, common cause that ‘City Link” is the applicant’s trading
name but in the summons the applicant was correctly cited by its registered
name. Nothing more really needs to be said about this issue which is kindergarten.
Makarichi also questioned the validity of
the second lease agreement relating to 2nd floor BB House because,
although it has a heading citing the parties correctly , clause 2 purports that
the agreement is entered with J Makarichi personally. The import of the
agreement does not change and again nothing
more has to be said about this shouting in the wilderness.
He went on to say that the applicant was
not liable for operating costs even though clause 3 of the leases make it clear
that the tenant is liable for operating costs and that these shall be fixed
monthly by the landlord.
The application is opposed by the
respondent on the basis that not only was the applicant in wilful default in
its failure to enter appearance to defend, it having admitted liability
throughout, it possesses no conceivable earthly defence to the respondent’s
claim. I agree.
Although the applicant made a mess of
the citation of the rules in terms of which this application was made, claiming
it was made in terms of “: para (a) of sub rule (1) of r 226 as read with Order
9 r 7 of the High Court Rules,” there can be no doubt that this is a r 63
application. That rule allows the court to rescind a judgment given in default
if satisfied that there is good and sufficient cause to do so. In other words
the applicant must set out good and sufficient cause for the judgment to be
rescinded.
In Roland and Anor v McDonnell 1986 (2) ZLR 216 (S) at 226 good and sufficient cause was
interpreted in the following :-
“In coming to a final
decision one has to ask whether the defendant has shown ‘good and sufficient cause’ within the
meaning of r 63 of the High Court Rules. Did the court a quo take into account:-
(a) The
defendant’s explanation of his default ,
(b) The
bona fides of the application to
rescind the judgement , and
(c) The
bona fides of the applicant’s defence
on the merits of the case, and and did the court normally consider these
matters in conjunction with each other and cumulatively?
See also Georgias and Anor v Standard Charted Finance Zimbabwe Ltd 1998 (2) 488 (S): Stockill
v Griffiths 1992 (1) ZLR (S) 173 D-F.
The
explanation tendered by the applicant for its failure to act on the summons is
that its receptionist accepted the summons when she had no authority to do so
and kept the summons to herself until the present day. Surely that is taking
the court for granted. Rule 39 0f the High Court Rules provides for the manner
of service of process and in terms of that rule service on a body corporate should
be by delivering to a responsible person at the place of business or registered
office. Not only is a receptionist a responsible person in respect of a body
corporate , she also accepted the process. To my mind this was proper service.
In addition to that , the applicant responded
to the summons by vacating the premises stating that it could no longer afford
to pay the rental. It also pointed out that it would soon provide a payment
plan. Of course it never did.
The applicant does not begin to present a
defence. It cannot ,especially after admitting liability. While in the founding
affidavit , the applicant attacked the claim for operating costs even when
those are provided for in clause 3 of the 2 lease agreements , at the hearing
of the matter, Mr Makarichi conceded liability for those costs but maintained
that they were excessive. He admitted that there were rent arrears. The
applicant agreed to let the respondent fix the operating costs monthly. It is
bound by the contract which it entered into freely and with its eyes open. It
is not for the court to make a contract for the parties but to observe and
protect the sanctity of such contract: Delta
Operations (Pvt) Ltd v Origen Corp (Pvt)Ltd 2007 (2) ZLR 81 (S)86 F-G.
Having
read the foregoing it boggles the mind that Mr Chinyama agreed to file the
application for rescission of judgement. It should have been apparent to him
that there was no merit in such misadventure. His conduct subsequent to the
filing of the application is consistent with someone who was aware of that
reality and merely filed an application to enable the applicant to gain an
unfair advantage over the respondent. He did not bother to prosecute the
application. Even after being served with the respondents’ heads of argument on
27 January 2014 he did not bother to file his heads of argument until he was
barred. As already stated he beat a hasty retreat at the eleventh hour without
the slightest hint of irony. This is unacceptable conduct on the part of an
officer of this court.
I conclude therefore that this application is
devoid of merit. Accordingly I make the following order, that
1. The
application is hereby dismissed
2. The
applicant shall bear the costs of suit on a legal practitioner client scale.
Shumba
and Partners,respondent’s legal practitioners
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