PETER BASIL CONSTAN TATOS and OTHERS v VAFEAS and OTHERS (228 of 2025) [2025] ZWHHC 228 (31 March 2025)

5 HH 228-25 HCHC 574-24 PETER BASIL CONSTAN TATOS And TATOS BROTHERS PRIVATE LIMITED And TATOS BROTHERS GWERU PRIVATE LIMITED And STATION STORE PRIVATE LIMITED And BENTATO PRIVATE LIMITED Versus DIMITRI PANTELIS VAFEAS And THOMAS ANTHONY VAFEAS And REGISTRAR OF COMPANIES HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 21 January and 31 March 2025 Opposed application J. Wood for the applicants G. Madzoka for first and second respondents No appearance for third respondent CHILIMBE J INTRODUCTION [1] A long running shareholder vendetta between the Tatos and Vafeas dynasties founds the dispute behind the present application for rescission of judgment. The Tatos family is herein represented by first applicant Peter Basil Constan Tatos. The Vafeas family comprises of first and second respondents Dimitris Pantelis Vafeas and Thomas Anthony Vafeas. The assets at the heart of the conflict are second to fifth applicants herein referred to collectively as the 4 entities. [2] In a kernel, the Vafeas family lay claim to one-third shareholding in each of the 4 entities. The Tatos family on the other hand, insists that Vafeas exited the shareholding in the 4 entities by selling their stake to Tatos 22 years ago. As such, the Tatos family argue that its adversary Vafeas it is not entitled to any shareholding in the said 4 entities. THE DEFAULT JUDGMENT [3] Given the stand-off, the Vafeas family cast the first spear by issuing summons in this court under case number HCHC 706/23 on 31 May 2024. It sought in the main, a declaratur conferring one third of the issued shareholding in the 4 entities to the Vafeas family. The basis thereof being the alleged breach by the Tatos family of a 1997 agreement in terms of which Vafeas sold its one-third shareholding in the 4 entities to Tatos. [4] This suit was withdrawn after the parties conferred in attempts to settle. Only to be replaced by an identical claim launched on 20 November 2023, again by the Vafeas family this time under HCHC 386/24. The Tatos family (also representing the 4 entities) filed a notice of appearance to defend. [5] But Tatos family failed to file a plea in terms of r 12 of the High Court (Commercial Division) Rules SI 123-2020 (“the Commercial Court Rules”). The Vafeas family proceeded to take judgment in default. The default order read as follows; - “1. Chamber application for default judgment be and is hereby granted. 2. Consequently, first and second applicants are hereby declared lawful holders of rights, title, and interests in respect of one third shareholding in the second, third, fourth and fifth defendants. 3. It is ordered that first and second applicants are entitled to exercise all the rights, and privileges arising out their holding of shares in the second, third, fourth, and fifth defendant, including, but not limited to access to financial records of the defendant companies, and receipt of their share of dividends. 4. That there shall be no order as to costs.” THE APPLICATION FOR DEFAULT JUDGMENT EXPLANATION FOR THE DEFAULT [6] In essence, the applicants Tatos family accuse the Vafeas family of snatching a judgment through their default application. It was Mr. Tatos`s explanation herein that upon receipt of the second summons, the applicants took steps to file an exception. In doing so, the applicants relied upon r 42 of the High Court Rules SI 202/2021 which prescribes the procedure to be followed when filing an exception. [7] Rule 42 (3) in particular, obliges an excipient to issue written notice seeking correction of the defect before filing its exception. In that regard, as the applicants awaited this process to run, the Vafeas family, who took a very different view on the applicable procedure, proceeded to secure a default judgment in terms of r 14 of the Commercial Court Rules. [8] This rule entitles a plaintiff whose case is not met by a plea filed in terms of r 12, to apply for default judgment. Rule 12 (1) prescribes that a plea, special plea or exception to a plaintiff`s summons shall be filed 7 days after service of summons. The respondents therefore insisted that the applicants derelicted by misreading the law. [9] Ms Wood for the applicants sustained the position that in the very least, the respondents` legal practitioners ought to have alerted applicants` of the discrepancy in the rules. Citing the decisions of Deputy Sheriff Harare v Mahleza & Anor 1997 (2) ZLR 425, Zimbabwe Banking Corporation v Masendeke 1995 (2) ZLR 400 (S) and Founders Building Society v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 256 (H), counsel prayed for a punitive order of costs against respondents` legal practitioners for what she submitted was an unpardonable lack of probity. [10] Counsel also contended that the applicants could not be faulted for processing their exception in terms of r 42 of the High Court Rules. That conclusion, according to Ms Wood, found support in this court`s authorities of Mapuranga & Anor v Carson and Carson Real Estate (Pvt) Ltd & 2 Ors HH 149-23 and Sifara v Jemwa & Anor HCC 28-24. The applicants were therefore not in wilful default, she concluded. [11] Additionally, counsel urged the court to recognise-to the benefit of the applicants- the somewhat confusing provisions in r 12 of the Commercial Court Rules. This rule did not set out the procedure to be followed in progressing an exception with the same clarity as r 42 of the High Court Rules, she submitted. PROSOECTS OF SUCCESS ON THE MERITS [12] On the merits, the Tatos family contradicted the Vafeas family`s version of the history of the matter. The Tatos account went thus; -the 4 entities were built (from scratch) by their patriarch Mr Dimitri Constan Tatos in the 1950s.Along the way, the senior Mr Tatos took in the Vafeas patriarch (referred to in the founding affidavit as) Mr N. Vafeas and offered him one third shareholding initially in second respondent and eventually in all the 4 entities. [13] There was a fall out over the shareholding between the families in 1997. It was resolved via an agreement where under Tatos bought back Vafeas` s one third shareholding in the 4 entities. Whereas Vafeas claimed that Tatos breached the agreement by failing to pay for the shares, Tatos countered under the present application that it is Vafeas who frustrated performance of the contract. THE LAW [14] As a matter of established legal principle, an application for rescission of judgment will be granted where an applicant demonstrates good and sufficient cause. The Supreme Court explained the considerations constituting good and sufficient cause in the following terms per GUBBAY JA (as he then was) Stockil v Griffiths 1992 (1) ZLR 172 (S) (at p 173) that: “The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving "good and sufficient cause", as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported); Roland E & Anor v McDonnell 1986 (2) ZLR 216 (S) at 226EH; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are: (i) the reasonableness of the applicant's explanation for the default; (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.” [15] The principles laid out in Stockil v Griffiths above were further elaborated in the following authorities as follows; - Wilful default; - Deweras Farm (Pvt) Ltd & Ors v Zimbank 1998 (1) ZLR 368 (S) at page 369; “I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I: - “More specifically, in the context of a default judgment, “wilful” connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken.”” Bona fides Robson Makoni v CBZ Bank Limited HH 357-16 per CHITAKUNYE J (as he then was) at page 6, “In order for a defence to be bona fide and to carry some prospects of success it must be credible ex facie. A defence based on misrepresentation of facts may not be such a defence.” Dr Walter Mangezi v Dr Tonderai Irvine Tipere Kasu HH 132-24 at page 14 per MUREMBA J, “This simply means that the applicant’s defence must have a reasonable chance of prevailing or achieving a favourable outcome. The defence should be valid and not futile or purely speculative. It should be sincere, substantive and have a reasonable chance of success. In casu the applicant disputes that he defamed the respondent.” Prospects of success In Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2/24 the court said: “The test for reasonable prospects of success postulates an objective and dispassionate decision, based on the facts and the applicable law, as to whether or not the applicant has an arguable case in the intended application should direct access be granted. The prospects of success must not be remote but must have a realistic chance of succeeding. In this respect, a mere possibility of success will not suffice. There must be a sound rational basis for the conclusion that there are prospects of success in the main matter. This court must be satisfied that the applicant has an arguable prima facie case and not a mere possibility of success. See Essop v S 2016 [ZASCA] 114; S v Dinha CCZ 11-20, at p 6.” APPLICATION OF THE LAW TO THE FACTS THE DEFAULT [16] This matter turns on whether the applicants legal practioners` wisdom in electing to proceed under r 42 of the High Court Rules. The question invites deeper considerations than the conclusions expressed by Mr Madzoka (for the respondents) to the effect that r 42 of the High Court Rules does not apply. I say so for the following reasons; - [17] Whenever the rules of one Superior Court cross reference to those of another, then the applicable formula must be recognised. See. Rule 4 (1) of the Commercial Court Rules provides that; - 4 (2) To the extent that any procedural matter arises during any proceedings before the court, which matter is not specifically regulated or provided for under these rules, then in such event the High Court Rules, 2021 (hereinafter referred to as “the High Court Rules”) shall apply mutatis mutandis). [18] It is noteworthy that r 4 (2) is a last resort cross referencing because in many other instances, the Commercial Court Rules specifically adopt or refer to the High Court Rules1.It must, in the same vein, be accepted that the Commercial Court is a specialised Division of the High Court . [19] For that reason, one must be circumspect when resorting to r 4 (2) because the rules of the Commercial Court were purpose-built. It must thus be demonstrated that an apparent omission of a specific procedure in the Commercial Court Rules is in fact an (a) an omission rather than (b) a deliberate adoption of a different adjectival approach. [20] A look at rr 5 and 7 of the Commercial Court confirms the need for a litigant to reflect over the effect of these rules on procedure. These rules direct a party to establish which route between the action and motion options, would best progress their suit. These rules must then be regarded against r 4 (2). [21] And to be further read with r 25 (1) of the Commercial Court Rules (which deals with “… all applications made for whatever purpose in terms of these rules or any other law…...”). Lastly, that repertoire must scope in the case management procedure under rr 16 to 22 to ascertain whether further procedural options are not therein built. [22] In the absence of fully-fledged argument focussed on these dimensions, and given the nature of application before me, I am inclined to extend a benefit to the applicants for the course taken by their legal practitioners. This should not in any way, be construed as a ruling on whether r 42 of the High Court Rules should be adopted in moving exceptions in the Commercial Court. [23] Which draws me to address possible misconceptions arising from Mapuranga, a matter that I decided. The primary issue for resolution by the court in Mapuranga was whether an excipient needed to file a bundle given the nature of an exception. The parties proceeded to make concessions based on the assumption that r 42 (2) applied to exceptions filed in the Commercial Court. [24] These assumptions were not tested by focussed argument which explored the issues I related to in the preceding paragraphs. The applicability of r 42 was therefore not the ratio decidendi in Mapuranga whose focus was trained on the need to temper adjectival excursions with rationality. THE BONA FIDES AND PROSPECTS OF SUCCESS [25] I propose to revert to basics in disposing of this point. The main dispute involves the interpretation of a contract in order to ascertain the parties` respective rights and obligations. And secondly, for the court to rule as to the parties` respective performance under such contract meaning of course, breach or compliance of contractual terms whose performance was due almost thirty years ago. [26] The contractual clauses in the sale of shares agreement do set out the transaction`s terms with clarity. I need not restate them other than in passing commentary. In essence, one party sold its shares in the 4 entities to the other. But it was not a straight-line transaction involving a swap of money for the property. [27] A number of formalities were structured into the preliminary conditions. These included the need for a valuation of the 4 entities` selected assets in order to determine the purchase price. A firm of auditors -Coopers and Lybrand was appointed to carry out that task. The said firm was thereafter mandated by clause 4 to ascertain the dividends due as well as balances on the loan account for purposes of updating the balance sheet in preparation for transfer of the said items` balances to the purchaser. Payment was to be made by 31 December 1998. [28] Each side to this contract now raises a catalogue of allegations of breach against the other. The sellers -Vafeas family, allege that the Tatos family never paid for the shares. The purchasers Tatos family recriminate that the sellers` frustrated performance and that their purported cancellation was invalid. Further issues arise on valuation as well as the other contractual formalities including the lodgement of share certificates plus pre-executed share transfer forms with Coopers and Lybrand. [29] Counsel from both sides referred to a wealth of authorities in defence of the respective propositions. Having regard to the concretion of the issues involved and the history of the dispute, it is not feasible to reach a conclusion as urged by counsel purely on the papers before me. Either side on paper does enjoy prospect of success should its version be accepted as the truth. This is a matter in which the credibility of either side will depend on the evidence led. On the papers before me, I am satisfied that the applicants have demonstrated the required bona fides and prosects of success on the merits. THE QUESTION OF SECURITY FOR COSTS IN TERMS OF RULE 15 (e) OF THE COMMERCIAL COURT RULES [30] Mr Madzoka protested that the applicants did not fulfil the requirement in r 15 (2) (e) to pay the judgment creditor`s security for costs. I note that in the main matter, it is the respondents themselves (as peregrini) who were required to pay security for costs but they did not. It is imperative that applicants comply with the requirement to pay security for costs in terms of this rule. A court may very well consider either denying them audience or the relief prayed for itself. Given the fulfilment of the rest of the requirements in r 15 (2) , I do not believe that the requirements of r 15 (1) should bar the applicants` access to the relief sought. DISPOSITION [31] The applicants` prayer will be granted but given the comments raised regarding the applicability of r 42, and how both sides to the dispute missed the key issues to consider, I find it just that each party meets its own costs. It is therefore ordered that The application for rescission of judgment be and is hereby granted.The judgment issued in default by this Court on 25 July 2024 under case number HCHC 386/24 be and is hereby set aside.In terms of r 15 (3) of the Commercial Court Rules 2020, the draft plea and summary of evidence filed together with the application for rescission of judgment shall immediately become the Plea and Summary of Evidence of Record upon such filing.Each party to bear its own costs. Warhurst Attorneys -applicants` legal practitioners Mavhunga and Associates-first and second respondents` legal practitioners [CHILIMBE J____31/03/25] 1 See for example rules 8-11;23 ,35(2),35 (3) (a), and 37 (2). 5 HH 228-25 HCHC 574-24 5 HH 228-25 HCHC 574-24 PETER BASIL CONSTAN TATOS And TATOS BROTHERS PRIVATE LIMITED And TATOS BROTHERS GWERU PRIVATE LIMITED And STATION STORE PRIVATE LIMITED And BENTATO PRIVATE LIMITED Versus DIMITRI PANTELIS VAFEAS And THOMAS ANTHONY VAFEAS And REGISTRAR OF COMPANIES HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 21 January and 31 March 2025 Opposed application J. Wood for the applicants G. Madzoka for first and second respondents No appearance for third respondent CHILIMBE J INTRODUCTION [1] A long running shareholder vendetta between the Tatos and Vafeas dynasties founds the dispute behind the present application for rescission of judgment. The Tatos family is herein represented by first applicant Peter Basil Constan Tatos. The Vafeas family comprises of first and second respondents Dimitris Pantelis Vafeas and Thomas Anthony Vafeas. The assets at the heart of the conflict are second to fifth applicants herein referred to collectively as the 4 entities. [2] In a kernel, the Vafeas family lay claim to one-third shareholding in each of the 4 entities. The Tatos family on the other hand, insists that Vafeas exited the shareholding in the 4 entities by selling their stake to Tatos 22 years ago. As such, the Tatos family argue that its adversary Vafeas it is not entitled to any shareholding in the said 4 entities. THE DEFAULT JUDGMENT [3] Given the stand-off, the Vafeas family cast the first spear by issuing summons in this court under case number HCHC 706/23 on 31 May 2024. It sought in the main, a declaratur conferring one third of the issued shareholding in the 4 entities to the Vafeas family. The basis thereof being the alleged breach by the Tatos family of a 1997 agreement in terms of which Vafeas sold its one-third shareholding in the 4 entities to Tatos. [4] This suit was withdrawn after the parties conferred in attempts to settle. Only to be replaced by an identical claim launched on 20 November 2023, again by the Vafeas family this time under HCHC 386/24. The Tatos family (also representing the 4 entities) filed a notice of appearance to defend. [5] But Tatos family failed to file a plea in terms of r 12 of the High Court (Commercial Division) Rules SI 123-2020 (“the Commercial Court Rules”). The Vafeas family proceeded to take judgment in default. The default order read as follows; - “1. Chamber application for default judgment be and is hereby granted. 2. Consequently, first and second applicants are hereby declared lawful holders of rights, title, and interests in respect of one third shareholding in the second, third, fourth and fifth defendants. 3. It is ordered that first and second applicants are entitled to exercise all the rights, and privileges arising out their holding of shares in the second, third, fourth, and fifth defendant, including, but not limited to access to financial records of the defendant companies, and receipt of their share of dividends. 4. That there shall be no order as to costs.” THE APPLICATION FOR DEFAULT JUDGMENT EXPLANATION FOR THE DEFAULT [6] In essence, the applicants Tatos family accuse the Vafeas family of snatching a judgment through their default application. It was Mr. Tatos`s explanation herein that upon receipt of the second summons, the applicants took steps to file an exception. In doing so, the applicants relied upon r 42 of the High Court Rules SI 202/2021 which prescribes the procedure to be followed when filing an exception. [7] Rule 42 (3) in particular, obliges an excipient to issue written notice seeking correction of the defect before filing its exception. In that regard, as the applicants awaited this process to run, the Vafeas family, who took a very different view on the applicable procedure, proceeded to secure a default judgment in terms of r 14 of the Commercial Court Rules. [8] This rule entitles a plaintiff whose case is not met by a plea filed in terms of r 12, to apply for default judgment. Rule 12 (1) prescribes that a plea, special plea or exception to a plaintiff`s summons shall be filed 7 days after service of summons. The respondents therefore insisted that the applicants derelicted by misreading the law. [9] Ms Wood for the applicants sustained the position that in the very least, the respondents` legal practitioners ought to have alerted applicants` of the discrepancy in the rules. Citing the decisions of Deputy Sheriff Harare v Mahleza & Anor 1997 (2) ZLR 425, Zimbabwe Banking Corporation v Masendeke 1995 (2) ZLR 400 (S) and Founders Building Society v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 256 (H), counsel prayed for a punitive order of costs against respondents` legal practitioners for what she submitted was an unpardonable lack of probity. [10] Counsel also contended that the applicants could not be faulted for processing their exception in terms of r 42 of the High Court Rules. That conclusion, according to Ms Wood, found support in this court`s authorities of Mapuranga & Anor v Carson and Carson Real Estate (Pvt) Ltd & 2 Ors HH 149-23 and Sifara v Jemwa & Anor HCC 28-24. The applicants were therefore not in wilful default, she concluded. [11] Additionally, counsel urged the court to recognise-to the benefit of the applicants- the somewhat confusing provisions in r 12 of the Commercial Court Rules. This rule did not set out the procedure to be followed in progressing an exception with the same clarity as r 42 of the High Court Rules, she submitted. PROSOECTS OF SUCCESS ON THE MERITS [12] On the merits, the Tatos family contradicted the Vafeas family`s version of the history of the matter. The Tatos account went thus; -the 4 entities were built (from scratch) by their patriarch Mr Dimitri Constan Tatos in the 1950s.Along the way, the senior Mr Tatos took in the Vafeas patriarch (referred to in the founding affidavit as) Mr N. Vafeas and offered him one third shareholding initially in second respondent and eventually in all the 4 entities. [13] There was a fall out over the shareholding between the families in 1997. It was resolved via an agreement where under Tatos bought back Vafeas` s one third shareholding in the 4 entities. Whereas Vafeas claimed that Tatos breached the agreement by failing to pay for the shares, Tatos countered under the present application that it is Vafeas who frustrated performance of the contract. THE LAW [14] As a matter of established legal principle, an application for rescission of judgment will be granted where an applicant demonstrates good and sufficient cause. The Supreme Court explained the considerations constituting good and sufficient cause in the following terms per GUBBAY JA (as he then was) Stockil v Griffiths 1992 (1) ZLR 172 (S) (at p 173) that: “The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving "good and sufficient cause", as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S-16-86 (not reported); Roland E & Anor v McDonnell 1986 (2) ZLR 216 (S) at 226EH; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are: (i) the reasonableness of the applicant's explanation for the default; (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.” [15] The principles laid out in Stockil v Griffiths above were further elaborated in the following authorities as follows; - Wilful default; - Deweras Farm (Pvt) Ltd & Ors v Zimbank 1998 (1) ZLR 368 (S) at page 369; “I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I: - “More specifically, in the context of a default judgment, “wilful” connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken.”” Bona fides Robson Makoni v CBZ Bank Limited HH 357-16 per CHITAKUNYE J (as he then was) at page 6, “In order for a defence to be bona fide and to carry some prospects of success it must be credible ex facie. A defence based on misrepresentation of facts may not be such a defence.” Dr Walter Mangezi v Dr Tonderai Irvine Tipere Kasu HH 132-24 at page 14 per MUREMBA J, “This simply means that the applicant’s defence must have a reasonable chance of prevailing or achieving a favourable outcome. The defence should be valid and not futile or purely speculative. It should be sincere, substantive and have a reasonable chance of success. In casu the applicant disputes that he defamed the respondent.” Prospects of success In Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2/24 the court said: “The test for reasonable prospects of success postulates an objective and dispassionate decision, based on the facts and the applicable law, as to whether or not the applicant has an arguable case in the intended application should direct access be granted. The prospects of success must not be remote but must have a realistic chance of succeeding. In this respect, a mere possibility of success will not suffice. There must be a sound rational basis for the conclusion that there are prospects of success in the main matter. This court must be satisfied that the applicant has an arguable prima facie case and not a mere possibility of success. See Essop v S 2016 [ZASCA] 114; S v Dinha CCZ 11-20, at p 6.” APPLICATION OF THE LAW TO THE FACTS THE DEFAULT [16] This matter turns on whether the applicants legal practioners` wisdom in electing to proceed under r 42 of the High Court Rules. The question invites deeper considerations than the conclusions expressed by Mr Madzoka (for the respondents) to the effect that r 42 of the High Court Rules does not apply. I say so for the following reasons; - [17] Whenever the rules of one Superior Court cross reference to those of another, then the applicable formula must be recognised. See. Rule 4 (1) of the Commercial Court Rules provides that; - 4 (2) To the extent that any procedural matter arises during any proceedings before the court, which matter is not specifically regulated or provided for under these rules, then in such event the High Court Rules, 2021 (hereinafter referred to as “the High Court Rules”) shall apply mutatis mutandis). [18] It is noteworthy that r 4 (2) is a last resort cross referencing because in many other instances, the Commercial Court Rules specifically adopt or refer to the High Court Rules1.It must, in the same vein, be accepted that the Commercial Court is a specialised Division of the High Court . [19] For that reason, one must be circumspect when resorting to r 4 (2) because the rules of the Commercial Court were purpose-built. It must thus be demonstrated that an apparent omission of a specific procedure in the Commercial Court Rules is in fact an (a) an omission rather than (b) a deliberate adoption of a different adjectival approach. [20] A look at rr 5 and 7 of the Commercial Court confirms the need for a litigant to reflect over the effect of these rules on procedure. These rules direct a party to establish which route between the action and motion options, would best progress their suit. These rules must then be regarded against r 4 (2). [21] And to be further read with r 25 (1) of the Commercial Court Rules (which deals with “… all applications made for whatever purpose in terms of these rules or any other law…...”). Lastly, that repertoire must scope in the case management procedure under rr 16 to 22 to ascertain whether further procedural options are not therein built. [22] In the absence of fully-fledged argument focussed on these dimensions, and given the nature of application before me, I am inclined to extend a benefit to the applicants for the course taken by their legal practitioners. This should not in any way, be construed as a ruling on whether r 42 of the High Court Rules should be adopted in moving exceptions in the Commercial Court. [23] Which draws me to address possible misconceptions arising from Mapuranga, a matter that I decided. The primary issue for resolution by the court in Mapuranga was whether an excipient needed to file a bundle given the nature of an exception. The parties proceeded to make concessions based on the assumption that r 42 (2) applied to exceptions filed in the Commercial Court. [24] These assumptions were not tested by focussed argument which explored the issues I related to in the preceding paragraphs. The applicability of r 42 was therefore not the ratio decidendi in Mapuranga whose focus was trained on the need to temper adjectival excursions with rationality. THE BONA FIDES AND PROSPECTS OF SUCCESS [25] I propose to revert to basics in disposing of this point. The main dispute involves the interpretation of a contract in order to ascertain the parties` respective rights and obligations. And secondly, for the court to rule as to the parties` respective performance under such contract meaning of course, breach or compliance of contractual terms whose performance was due almost thirty years ago. [26] The contractual clauses in the sale of shares agreement do set out the transaction`s terms with clarity. I need not restate them other than in passing commentary. In essence, one party sold its shares in the 4 entities to the other. But it was not a straight-line transaction involving a swap of money for the property. [27] A number of formalities were structured into the preliminary conditions. These included the need for a valuation of the 4 entities` selected assets in order to determine the purchase price. A firm of auditors -Coopers and Lybrand was appointed to carry out that task. The said firm was thereafter mandated by clause 4 to ascertain the dividends due as well as balances on the loan account for purposes of updating the balance sheet in preparation for transfer of the said items` balances to the purchaser. Payment was to be made by 31 December 1998. [28] Each side to this contract now raises a catalogue of allegations of breach against the other. The sellers -Vafeas family, allege that the Tatos family never paid for the shares. The purchasers Tatos family recriminate that the sellers` frustrated performance and that their purported cancellation was invalid. Further issues arise on valuation as well as the other contractual formalities including the lodgement of share certificates plus pre-executed share transfer forms with Coopers and Lybrand. [29] Counsel from both sides referred to a wealth of authorities in defence of the respective propositions. Having regard to the concretion of the issues involved and the history of the dispute, it is not feasible to reach a conclusion as urged by counsel purely on the papers before me. Either side on paper does enjoy prospect of success should its version be accepted as the truth. This is a matter in which the credibility of either side will depend on the evidence led. On the papers before me, I am satisfied that the applicants have demonstrated the required bona fides and prosects of success on the merits. THE QUESTION OF SECURITY FOR COSTS IN TERMS OF RULE 15 (e) OF THE COMMERCIAL COURT RULES [30] Mr Madzoka protested that the applicants did not fulfil the requirement in r 15 (2) (e) to pay the judgment creditor`s security for costs. I note that in the main matter, it is the respondents themselves (as peregrini) who were required to pay security for costs but they did not. It is imperative that applicants comply with the requirement to pay security for costs in terms of this rule. A court may very well consider either denying them audience or the relief prayed for itself. Given the fulfilment of the rest of the requirements in r 15 (2) , I do not believe that the requirements of r 15 (1) should bar the applicants` access to the relief sought. DISPOSITION [31] The applicants` prayer will be granted but given the comments raised regarding the applicability of r 42, and how both sides to the dispute missed the key issues to consider, I find it just that each party meets its own costs. It is therefore ordered that The application for rescission of judgment be and is hereby granted. The judgment issued in default by this Court on 25 July 2024 under case number HCHC 386/24 be and is hereby set aside. In terms of r 15 (3) of the Commercial Court Rules 2020, the draft plea and summary of evidence filed together with the application for rescission of judgment shall immediately become the Plea and Summary of Evidence of Record upon such filing. Each party to bear its own costs. Warhurst Attorneys -applicants` legal practitioners Mavhunga and Associates-first and second respondents` legal practitioners [CHILIMBE J____31/03/25] 1 See for example rules 8-11;23 ,35(2),35 (3) (a), and 37 (2). 1 See for example rules 8-11;23 ,35(2),35 (3) (a), and 37 (2).