NATIONAL INSURANCE CO OF ZIMBABWE v DLAMINI 1999 (2) ZLR 196 (H)

Flynote

Practice and procedure — civil imprisonment — application for — default judgment previously granted — where judgment obtained on default basis, court must be satisfied that judgment was properly entered — summons for damages for negligence not a claim for a debt or a liquidated claim — default judgment inappropriate — application refused

Headnote

â–· The plaintiff secured a default judgment against the defendant in respect of damages he had claimed for repairs to his vehicle arising from a motor vehicle accident. When the defendant failed to pay damages awarded by default, the plaintiff applied for an order of civil imprisonment.

Held, that civil imprisonment is a drastic remedy. A judge will ordinarily presume that the judgment debt in respect of which civil imprisonment is sought is properly entered. The judge, however, should always be satisfied, particularly when the judgment is obtained on a default basis, that the judgment was properly entered. Where the judge is not so satisfied then it is within the discretion of the judge dealing with the civil imprisonment summons to refuse to order civil imprisonment or to give appropriate directions before so ordering.

Held, further, that when the plaintiff had applied for default judgment the way in which he had attempted to set out his cause of action was wholly inadequate. As this was an illiquid claim, there should have been a declaration. This declaration should have contained these details: the nature of the cause of action, the circumstances of the accident, the nature of the negligence alleged, and an allegation that the amount claimed represented the reasonable costs of the repairs to the vehicle. In the present case there was no such declaration and none of the required details had been clearly specified. The judge hearing this matter should have required a proper summons or declaration to be filed. Additionally, as this was a claim for damages and not a claim for a debt or liquidated demand, the application for default judgment should not have been dealt with as a chamber application but should have been made on the unopposed motion roll supported by an affidavit. A further factor was that the defendant entered a belated appearance to defend and requested further particulars. In these circumstances, the default judgment should not have been granted. The execution under such a judgment should accordingly not be allowed to proceed until the defendant had been given an opportunity to seek rescission and the plaintiff had provided satisfactory details of the negligence and had provided proof of reasonable cost of repairs to his motor vehicle.