IN THE HIGH COURT OF ZIMBABWE Case No /04

HELD AT HARARE ref. case no HC 10720/04

In the matter between:

ZIMNAT LIFE ASSURANCE COMPANY LIMITED Applicant

and

CHALLENGE W. P. MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE Respondent

APPLICATION FOR RESCISSION OF JUDGEMENT

TAKE NOTICE that the Applicant intends to apply to the High Court at Harare for an
Order in terms of the Draft Order annexed to this notice and that the accompanying
affidavit/s and documents will be used in support of the application.

Dated at Harare this 1st Day of November 2004.

_______________________
Mawere & Sibanda
Applicant’s Legal Practitioners
10th Floor Southampton House
1st Street/Union Avenue
Harare (01/Z016/001/TM/bp)

To: The Registrar

High Court
Harare

And

to: Kawonde and Company

Respondent’s Legal Practitioners
6th Floor Pax House
89 Union Avenue
Bulawayo
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IN THE HIGH COURT OF ZIMBABWE Case No /04

HELD AT HARARE ref. case no HC 10720/04
In the matter between:

ZIMNAT LIFE ASSURANCE COMPANY LIMITED Applicant

and

CHALLENGE W. P. MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE Respondent

SUPPORTING AFFIDAVIT OF FANNIE BERNARD JASI-

KANYEMBA
_______________________________________________________

I, the undersigned,

FANNIE BERNARD JASI-KANYEMBA

do hereby make oath and state that:

1. The facts I depose to herein are true and correct to the best of my knowledge,
information and belief.

2. I am a former employee of Applicant having been employed by Applicant as a

Property Analyst/Manager.

3. I was responsible for the overseeing and management of the property department
and amongst my duties and responsibilities was coordinating the refurbishment of
ZIMNAT Group properties and buildings.

4. I was also heavily involved with the project that is the subject matter of the
dispute on hand.

5. On or about 9th of September 2004 the Deputy Sheriff served upon me a copy of a
summons issued by the Respondent against the Applicant, in which the former
claimed payment as against the latter of the sum of $ 52 987 500.00 together with
interest thereon from the 23rd of November 2003 to date of payment.

6. A copy of the summons is attached to the Founding Affidavit of

******************* and marked annexure “A”.

7. On or about the 15th of September 2004 I wrote a letter to Applicant’s legal

practitioners at the time, Atherstone and Cook, advising them of matter which
lead to the issuing of the summons and of the summons itself. I attached a copy of
the summons to the letter and had the documents hand delivered by a massager in
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the employ of the Applicant known to me only as Tanganyika. I attach hereto as

Annexure “E” a copy of the letter I wrote to Atherstone and Cook.

8. On the 23rd of September 2004 this being the date upon which the dies indicia was
set to expire I called Mr Chagonda of Atherstone and Cook to enquire of the
progress in the matter. I was however advised by Mr Chagonda’s secretary
Catherine that he was in a meeting and that the summons was on his desk and that
he was attending to it. I attach hereto a copy of the file note I placed in the file as
proof of the conversation, which note I have marked Annexure “F”.

9. This was the last I heard of the matter until Mr. Mawere of Mawere & Sibanda
called me in connection with the matter.

Signed and sworn to at Harare on this 1st day of November 2004.

____________________________
FANNIE BERNARD JASI-KANYEMBA
Before me

______________________________
COMMISSIONER OF OATHS
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IN THE HIGH COURT OF ZIMBABWE Case No /04

HELD AT HARARE ref. case no HC 10720/04
In the matter between:

ZIMNAT LIFE ASSURANCE COMPANY LIMITED Applicant

and

CHALLENGE W. P. MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE Respondent

SUPPORTING AFFIDAVITS OF INNOCENT CHAGONDA

I, the undersigned,

INNOCENT CHAGONDA

do hereby make oath and state that:

1. I am a duly registered Legal Practitioner in terms of the Legal Practitioners Act,

Chapter 27:07 and practicing at Atherstone & Cook Legal Practitioners as a
Partner.

2. I was at all material Applicant’s Legal Practitioner.

3. The facts I depose to herein are within my personal knowledge.

4. On or about the 15th September 2004 I received a letter from the Applicant with
summons attached thereto.

5. Upon receipt of the same I did ****************************************.

Signed and sworn to at Harare on this day of November 2004.

____________________________
INNOCENT CHAGONDA
Before me

______________________________
COMMISSIONER OF OATHS
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IN THE HIGH COURT OF ZIMBABWE Case No /04

HELD AT HARARE ref. case no HC 10720/04
In the matter between:

ZIMNAT LIFE ASSURANCE COMPANY LIMITED Applicant

and

CHALLENGE W. P. MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE Respondent
_______________________________________________________

FOUNDING AFFIDAVIT OF ****************************

_______________________________________________________

I,

*****************************************,

do hereby make oath and state that;

PARTIES

1. I am the Applicant’s *********************************. I am authorized to

swear to this affidavit, which I do for and on behalf of Applicant. The facts I
swear to herein are within my personal knowledge.

2. Applicant is ZIMNAT LIFE ASSURANCE COMPANY LIMITED a company

with limited liability duly incorporated in terms of the laws of Zimbabwe and
whose address for service is c/o Mawere & Sibanda Legal Practitioners, 10 th
Floor, Southampton House, First Street/Union Avenue, Harare.

3. Respondent is CHALLENGE W. P. MUKAMBA a duly registered Architect

practicing in Harare under the style MUKAMBA ARCHITECTURAL
PRACTICE, whose address for service for the purpose of this suit is that of his
legal practitioners Kawonde and Company Legal Practitioners, 6th Floor Pax
House, 89 Union Avenue, Harare.

THE FACTS

1. I beg leave to refer, as if specifically traversed herein, to the entire file of

documents in the matter HC 10720/04.

2. To avoid burdening the Court unduly I will not re-state all the facts that appear
upon reference to the said file. I specifically however, incorporate such facts into
this affidavit.
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3. For ease of the Court’s reference I will where I deem it necessary, attach certain
documents that are filed in the matter HC 10720/04 to this affidavit.

4. A reference to the file in the matter HC 10720/04 will show that in that matter:

1.1 The Respondent hereto issued summons against the Applicant with this
Honourable Court on the 1st of September 2004. I have attached hereto as
proof thereof a copy of the summons and marked it Annexure “A”;

1.2 Summons was served on the Applicant on the 9th of September 2004. I
have attach hereto as Annexure “B” a copy of the Deputy Sheriff’s return
of service;

1.3 As there was no Appearance to Defend filed by the Applicant, Respondent

applied for Default judgement on the 30th September 2004 which judgment
was granted by this Honourable Court on the 13th of October 2004. I attach
hereto as Annexures “C” and “D” respectively copies of the Application
for Default Judgment and the subsequent order granted pursuant thereof.

2. I refer this Honourable Court to the Supporting affidavits of FANNIE BERNARD

JASI-KANYEMBA and Innocent Chagonda for the reason for the default.

3. The Applicant only became aware of the Default on the **** of October 2004
when***************************************.

4. I am further advised by Applicant’s legal practitioners of record, which advice I

accept that an application of this kind (i.e. an Application for Rescission of
Judgment) is governed by Rule 63(2) of the High Court Rules which Rule reads
as follows; -

“ If the court is satisfied on an application in terms of subrule (1) that there is

good and sufficient cause to do so, the court may set aside the judgement
concerned and give leave to the defendant to defend or to the plaintiff to
prosecute his action, on such terms as to costs and otherwise as the court
considers just.”

5. I am further advised by Applicant’s legal practitioners of record, which advice I

accept that an Applicant who petitions the Court for leave to defend an action
wherein judgment has been entered against him in his default must show good
and sufficient cause why this should be done.

6. I am further advised by Applicant’s legal practitioners of record, which advice I

accept that in principle and in the long-standing practice of our Courts, two
essential elements of ‘sufficient cause’ for rescission of a judgment by default are:

6.1 That the party seeking relief must present a reasonable and acceptable
explanation for his default; and
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6.2 That on the merits, such party has a bona fide defence which prima facie
carries some prospect of success.

7. I verily believe that the Applicant in this matter has good and sufficient cause for
the Court to exercise its discretion and grant the indulgence sought by the
Applicant.

8. In support of my belief I beg that this Honourable Court take note of the
following;-

EXPLANATION FOR THE DEFAULT

9. The reason for the default is evident from a perusal of the Supporting Affidavit of
FANNIE BERNARD JASI-KANYEMBA and that of Innocent Chagonda.

10. A reference to the Affidavit of FANNIE BERNARD JASI-KANYEMBA and that

of Innocent Chagonda will show that in that;-

10.1 Summons was served upon the Applicant on the 9 th of September 2004, by
serving the same upon FANNIE BERNARD JASI-KANYEMBA who
was at the time employed by the Applicant as a Property
Analyst/Manager. This is evident from a perusal of Annexure “B”;

10.2 Upon receipt of the summons FANNIE BERNARD JASI-KANYEMBA

forwarded the same to Applicant’s legal practitioners at the time
Atherstone and Cook;

10.3 ************************************************************
***

10.4 ;

DEFENCE ON THE MERITS

11. ******************************************************************
*****.

12. I verily believe that the Applicant has a reasonable and acceptable explanation for
its default and that on the merits, Applicant has a bona fide defence, which prima
facie carries some prospect of success.

WHEREFORE the Applicant prays for an order in terms of the draft.

Signed and sworn to at Harare on this day of November 2004.

____________________________
*******************************
Before me
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______________________________
COMMISSIONER OF OATHS

IN THE HIGH COURT OF ZIMBABWE Case No /04

HELD AT HARARE ref. case no HC 10720/04
In the matter between:

ZIMNAT LIFE ASSURANCE COMPANY LIMITED Applicant

 9

and

CHALLENGE W. P. MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE Respondent

DRAFT ORDER

HARARE the day of 2004.

Before the Honourable Mr/Mrs Justice

, Legal Practitioner for Applicant

, Legal Practitioner for Respondent

WHEREUPON after reading the documents filed of record and hearing counsel for the
parties.

IT IS ORDERED THAT:

1 The Default Judgement granted by this Court in the matter HC 10720/04 on the
13th of October 2004 be and is hereby rescinded.

2 The Registrar is hereby directed to set the matter down for another hearing.

BY THE COURT

JUDGE/DEPUTY REGISTRAR