CHIHWAYI ENTERPRISES (PVT) LTD v ATISH INVESTMENTS (PVT) LTD 2007 (2) ZLR 89 (S)

Flynote

C Evidence — affidavits — what is not denied in affidavits must be taken to be admitted

Legal practitioner — conduct and ethics — preparation by legal practitioner of affidavits which are false and misleading — legal practitioner should not appear in subsequent legal proceedings — duty in such cases

D Practice and procedure — affidavits — what is not denied in affidavits must be taken to be admitted

Practice and procedure — judgment — default judgment — rescission — court empowered to grant rescission for "sufficient cause" — what must be shown to establish "sufficient cause"

E Practice and procedure — judgment — default judgment — rescission — judgment obtained improperly or fraudulently — not a judgment granted under the rules of court — no need to seek condonation for delay in applying for rescission

Headnote

The simple rule of law is that what is not denied in affidavits must be taken to be admitted (dicta per McNally JA in Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121, (S) at 127F, followed). Where a legal practitioner has prepared and signed a certificate of service, on behalf of his client, which contained false and misleading information, it is undesirable that he should appear for his client in subsequent legal proceedings. He should rather have filed an affidavit explaining the role he played in the matter.

Rule 63 of the High Court Rules 1971 (RGN 1047 of 1971) which relates to court applications for rescission of judgment only applies to the rescission ofa judgment given "under these rules or under any other law". The rule would not apply to the rescission of a default judgment obtained fraudulently or improperly, because such a default judgment could not be described as a default judgment granted "under these rules or under any other law."

A claim for rescission of judgment must be considered in terms of the common law which empowers the court to rescind a judgment obtained in default of appearance, provided sufficient cause therefor has been shown. The term "sufficient cause" (or "good cause") defies precise or comprehensive definition, for many and various factors require to be considered. But it is clear that in principle and in the long standing practice of our courts two essential elements of "sufficient cause" for rescission of judgments are that: 1. the party seeking relief must present a reasonable and acceptable explanation for his default; and 2. on the merits such party has a bona fide defence which, prima facie, carries some prospect of success (dicta per Miller JA in Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764-765C followed).