MEDIWOOL (Private) Limited v MASWERA (33 of 2025) [2025] ZWHHC 33 (24 January 2025)

8 HH 33-25 HCH 797/24 MEDIWOOL (Private) Limited versus GILBERT KARENGA MASWERA HIGH COURT OF ZIMBABWE MHURI, & MUCHAWA JJ HARARE, 21 May 2024 & 24 January 2025 E T Muhlekiwa, for the Appellant B Mudawu, and P Tichaona, for the Respondent MUCHAWA J: This is an appeal against the whole judgment of the Magistrates Court (Civil Court) sitting at Harare in case number HRE- CCG 1424/23 which was handed down on 30 January 2024. The judgment appealed against dismissed an application for rescission of judgment lodged by the now appellant with costs on the ordinary scale. The grounds of appeal are as follows, The court a quo erred in totally ignoring and failing to determine whether or not the “plaintiff’s pretrial conference minute” in HRE CCG 1424/23 constitutes a valid notice of set down for pretrial conference hearing in terms of Order 19 of the Magistrates Court (Civil) Rules, 2018, which was an issue before it. The court a quo grossly misdirected itself in finding that the appellant and its legal practitioner were aware of the set down of 30 November 2023 when in fact there was no notice of set down for pretrial conference hearing showing the date and time upon which the respondent’s action in HRE, CCG 1424/23 had been set down for pre-trial conference hearing.Even if it is found that the “plaintiff’s pre-trial conference minute” in HRE CCG 1424/23 constituted a valid notice of set down for hearing, the court a quo further grossly misdirected itself in finding that the appellant was in willful default. The appellant’s explanation that this was a case of misdiarisation was not uncontroverted and the appellant’s conduct of attending court on 30 November 2023 at 11.00 am shows that the appellant did not intend to wilfully default attending court. The court a quo erred in discounting the appellant’s explanation that it was coerced into the acknowledgement of debt when there is an extant judgment under the same case number HRE-CCG 1424/23 dismissing the respondent’s motion for summary judgment whose motion was founded on the same acknowledgement of debt. The court a quo erred in not determining the appellant’s grounds of defense appearing in paragraphs 30 to 36 of the appellant’s founding affidavit in the application for rescission of judgment and which grounds had good prospects of reversing the default judgment in favour of the respondent. Furthermore, had the court a quo determined the appellant’s grounds of defense above, it ought to have found that the appellant’s grounds of defense have good prospects of reversing the default judgment and consequently the court a quo should have granted the appellant’s application for rescission of default judgment. The relief sought is as follows: “1. The appeal be and is hereby allowed 2. The judgment of the court a quo is hereby set aside and substituted with the following: - “(i) The default judgment granted on 30 November 2023 in favour of the respondent be and is hereby set aside. (ii) The respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client scale.” 3. The respondent be and is hereby ordered to pay the costs of the appeal on a legal practitioner and client scale.” The brief background facts to the matter, are that the now respondent issued out summons under case number HRE CCG 1424/23 against the now appellant. The particulars of the claim were that the parties had entered into a lease agreement on 1 October 2020 wherein the respondent had leased his premises known as stand number 17042 A Culton Road, Graniteside, Harare to the defendant to run its cotton processing business from there. Rentals are alleged to have been agreed on at an initial amount of USD 600 then USD 700 for December 2020 to January 2021. It was to be USD 900 for February to March 2021, then USD 1000 for April to May 2021. This amount would go up to USD 1430 for June to July 2021 and thereafter USD 1700 from August 2021 to April 2023 which was the date of summons. It was alleged that by the date of issuing summons, the appellant was in arrears of rentals amounting to USD 30 031.00 and had failed, neglected or refused to pay this amount and to vacate the premises. Judgement was therefore sought for payment of the arrear rentals, an order evicting the defendant from the premises, payment of interest at the prescribed rate from the date of issuance of the summons to date of full payment. The appellant entered appearance to defend the claim. An application for summary judgment was subsequently filed as there was an acknowledgement of debt allegedly executed by the appellant. The application for summary judgment was dismissed as the court a quo found that there were a number of issues in respect of rentals that should be ventilated on trial. It was directed that the matter should proceed to trial in terms of the rules. Meanwhile under case number HRE C-CG 1426/23 the respondent had filed an ex-parte application for rent attachment against the appellant on the pretext that the appellant had indicated its intention to vacate the premises without paying off all the rent arrears. This was granted and on 2 June 2023, the Messenger of Court enforced the rent attachment order upon the appellant’s assets. Once it was directed that the matter proceeds in terms of the Rules, to trial, a pre-trial conference was to be held on 30 November 2023 and the appellant was in default. Default judgment was entered for the Respondent granting the arrear rentals and ejectment of the appellant. Thereafter the appellant applied for rescission of judgment which application was dismissed, hence this appeal. At the hearing of the matter parties made submissions on points in limine and the merits. The points in limine are as follows: An application for amendment of appeal ground 3.Whether appeal grounds 3 and 6 are concise.Whether the appeal is now academic as it has been overtaken by events.Whether the appellant has approached the court with dirty hands.Whether the grounds of appeal are defective for failure to raise any point of law We reserved our ruling on these. Hereunder is the ruling and we deal with each point in limine in turn below and thereafter proceed to the merits. Points In Limine The application for amendment of appeal ground 3 Mr Muhlekiwa applied for the amendment of ground 3 of appeal by deleting the word “not” in the second sentence, and for the sentence to read as follows: “The appellant’s explanation that this was a case of mis-diarisation was uncontroverted and……” Instead of: “The appellant’s explanation that this was a case of mis-diarisation was not uncontroverted….” Mr Mudawu was opposed to the application for amendment of the ground on the basis that the laid down procedure to be followed in such an amendment had not been followed. Such procedure is said to be laid down in the case of Sambaza v AI Shams Global B.V Ltd SC 3/18. What is involved is to either make a chamber application or notice of amendment and serve it on the other party to enable it to take a position and deal with potential prejudice. Mr Muhlekiwa, in his reply, distinguished the Sambaza case as it dealt with a notice of appeal and prayer which were both entirely defective and was dealt with in terms of r32 of the Supreme Court Rules which is not similar to the High Court Rules. It was argued that in this case the amendment sought does not alter the complexion of the appeal or submissions made by the parties and what is merely sought is to correct the grammar in the sentence so that the sentence has meaning as it has two negatives. It was pointed out that the Respondent had not pointed to any prejudice to be suffered by it, if the amendment was effected. Furthermore, Mr Muhlekiwa stated that what is required is for a party to specify the grounds to be amended and show how they are to be amended and that such amendment can be sought on the day of hearing or by chamber application. I agree with Mr Muhlekiwa that the case of Sambaza supra is totally distinguishable. It dealt with a notice of appeal which was found not to be compliant with r29 (1) (a) to (f) of the Supreme Court Rules which are mandatory. It was held that a notice of appeal which does not comply with the Rule is fatally defective and cannot be amended as there will be nothing to amend. It is a trite legal position that a nullity cannot be amended. The facts in this case are entirely different. It is not alleged that the ground of appeal sought to be amended is not compliant with any High Court Rule. No prejudice was alleged which would arise from the amended ground of appeal. It is a purely grammatical amendment. Counsel for the Respondent was advised of this before the hearing. Due to the nature of the amendment sought, the Respondent had enough time to consider any likely prejudice. As none was indicated, there must be none. We are alive to the need to give notice to the other side and allow a response when an amendment is sought. This was adequately done in the circumstances of this case. In the result, the amendment sought by the appellant is hereby granted. The ground therefore now reads as follows: - “3 Even if it is found that the “plaintiff’s pre-trial conference minute in HRE C- CG1424/23 constituted a valid notice of set down for hearing, the court a quo further grossly misdirected itself in finding that the appellant was in willful default. The appellant’s explanation that this was a case of mis-diarisation was uncontroverted and the appellant’s conduct of attending court on 30 November 2023 at 11:00 am shows that the appellant did not intend to willfully default attending court.” Whether grounds of appeal 3 and 6 are concise Mr Mudawu submitted that grounds of appeal 3 and 6 are not concise but are argumentative and therefore fatally defective. Ground 3 was said to cover 7 lines and that the second part is argumentative. Ground 6 was said to be totally unnecessary. On the strength of the cases of Chikura N.O and Anor v AI Shams Global BVI Ltd SC 17/17 and Songono v Minister of Law and Order 1996 (4) SA 384, it was prayed that these grounds should be struck out. Mr Muhlekiwa submitted that ground 3 is concise as it attacks a misdirection that even if it is held that there was proper notice, the particular and specific misdirection is set out in the second sentence otherwise the ground of appeal would be general. Furthermore, it was conceded that ground 6 supplements ground 5. At the same time, it was averred that ground 5 is more or less similar to ground 1 as the court a quo should have considered whether there were arguable grounds for defence. In support of its argument, the appellant referred the court to the case of Zvokusekwa v Bikita RDC SC 44/15 which held that the court should be guided by the substance of the grounds of appeal and not the form. The learned authors Herbstein and Van Winsen, The Civil Practice of the High Court of South Africa, 5th edition volume 2 at page 1158 wrote: “It has been held that the grounds of appeal………. must be clearly and succinctly set out in clear and unambiguous terms so as to enable the court and the respondent to be fully informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal.” In Xayimpi v Chairman Judge White Commission [2006] 2 ALL SA 442 (E) at 446 and No- Italy Phandirre Mtirara (Pty) Ltd and 10 others ZA ECHC/2007 /116 it was held that: “The application for leave to appeal is not a model of good craftsmanship and clarity. It is not only argumentative but also prolix and the proposed ground of appeal is not clearly and succinctly set out in clear and unambiguous terms as proclaimed in various judicial authorities.” By his own admission, counsel for the appellant submitted that ground of appeal 6 is supplementary to ground 5. The extension of ground 5 into ground 6 does result in an argumentative and prolix ground of appeal. That is undesirable and to that end, ground 6 cannot therefore escape being struck out. Ground 3 is not a model of good draftsmanship. It is drawn out and clearly argumentative. The ground of appeal could just have ended at stating that the court a quo erred in finding that the appellant was in willful default. The second sentence puts in the argument which would be better placed in the head of argument in support of the ground of appeal. This fact does not, however, make the ground ambiguous. It makes clear, though not succinctly, the case which the respondent is to meet in opposing the appeal. Because of this ground 3 escapes the chop. This point in limine partly succeeds and ground of appeal 6 is struck out. Whether The Appeal is Now Academic as It has Been Overtaken by Events Mr Madawu submitted that the order which the appellant intended to set aside by way of an application for rescission in the court a quo has been executed through a writ dated 4 December 2023 authorized by the Magistrates Court. The appellant is said to have been successfully ejected from the premises in issue on 12 December 2023. Regarding the recovery of arrear rentals in terms of the order, a sale in execution was done on 29 December 2023 following an order for rent attachment executed on 2 June 2023 under case number HRE- CCG 1426/23. The court was referred to the cases of Africa Distillers Ltd v Zietkwiecz 1980 ZLR 113 (H) and Sergio Tarwireyi v Samuel Mboneli Kunene HH 19-18 wherein it was held that the court will not concern itself with suits in which the resulting judgment will be no more than brutum fulmen. It was contended that even if the application for rescission succeeded it would be merely academic, and moot and the court should not waste its time on such a venture. On the other hand, Mr Muhlekiwa urged the court to exercise its discretion to hear the matter. The law on mootness was covered by reference to the case of Erica Ndewere v President of Zimbabwe N.O and Another SC 57/22. It was held that a matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable. The position was more succinctly set out in the case of Thokozani Khupe and Another v Parliament of Zimbabwe and others CCZ 20/19 at p7 where it was held as follows “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances, the court’s jurisdiction ceases, and the case becomes moot ------The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of such a nature that the decision sought will have no practical effect or result.” The court was referred to a two stage approach set out in Zimsec v Mukomeka and Anor SC10/20 wherein the Supreme Court of Canada in Borowski v Canada (Attorney General ) [1989] 1 SCR 342 is cited with approval. It was held as follows: “It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic if so, it is then necessary to decide if the court should exercise its discretion to hear the case.” “The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy consideration underlying the doctrine of mootness- Borowski’s case, supra. The overriding consideration is whether or not it is in the interest of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11: “……. discretion must be exercised according to what the interest of justice require. A prerequisite for the exercise of the discretion is that any order which thus Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.” I turn to apply this test to the facts in issue. The first step is to decide whether the tangible and concrete dispute has disappeared rendering the issues academic. The claim in the summons had two basic issues to it. One was for ejectment of the appellant and the other for arrear rentals in the amount of USD 30 031.00. The appellant was already ejected from the premises on 12 December 2023. On the arrear rental, a sale in execution was conducted on 29 December 2023. The sale realized about USD 25 000 yet the judgment debt was USD 31 031 plus the messenger of Court Commission and VAT at 15%. Should the court exercise its jurisdiction on the basis of the outstanding amount owed in the judgment debt? Mootness cannot apply as the amount of rentals owed is in issue and an amount is still outstanding. This could very well give rise to a claim for damages. We find therefore that it is in the interests of justice to hear this case on the merits as the order to be made by the court will have some practical effect regarding the amount of arrear rentals owed, whether the whole, less or an excess amount has been recovered. It is for this reason that this point in limine is dismissed. Whether the Appellant Has Approached the Court with Dirty Hands As Mr Mudawu elected to abide by the papers filed of record on the rest of the points in limine, I refer to the heads of argument on this point. The respondent’s case is that the appellant has dirty hands. Reliance was placed on the case of Julius Tawona Makoni v Pauline Makoni &Anor SC 7/2018 for the arguement that a litigant who tendered costs cannot obtain a relief stemming from an application or summons filed against a party in whose favour costs have been awarded without the former having paid same. Mr Muhlekiwa distinguished the present case from that of Makoni supra in that in the Makoni supra judgment had been awarded and costs taxed, and further proceedings had been instituted before payment of costs. In casu the respondent wrote a letter of demand requesting costs above USD 10 000.00 yet costs were on an ordinary scale and to the date of the appeal hearing, there were no taxed costs. There is indeed a clear distinction in these cases. Rule 72 (3) of the High Court Rules, 2021 provides for taxation of costs in order to afford the party who has been awarded an order of costs reasonably incurred by him or her in relation to his or her claim or defence and ensure that all costs shall be borne by a party against whom such order has been awarded. In casu as no taxation has been done, the authority of Makoni supra cannot be used. We find thatthe principle of dirty hands does not apply and resultantly dismiss this point in limine. Whether the Grounds of Appeal are defective for failure to raise any point of law The point that grounds of appeal 1 to 6 are defective as they do not raise any question of law but factual issues which the appellate court has no concern with was not persisted with in oral arguments. The only point argued related to ground 3 and 6 not being concise which point I have already dealt with earlier. Even though the respondent elected to abide by its papers on this point, there is no address on each ground of appeal which points to the paucity in each ground in this respect. On the contrary Mr Muhlekiwa argued that ground 1 of appeal raises the issue that the court a quo failed to determine an issue which was before it. The issue was whether the plaintiff’s (respondent’s) pre-trial conference minute constitutes a valid notice of set down for the pre-trial conference as this was the basis for the rescission sought. There is a long line of case law to the effect that where a court fails to determine an issue before it, that amounts to a misdirection. See Nzara v Shumba SC 18/18 and Heywood Investments (Pvt) Ltd t/a GDC Haulers v Pharaoh Zakeyo SC 32/13 and GMB v Muchero SC 59/07. In our view ground 1 of appeal raises a question of law. On ground 2 the appellant contends that the ground attacks the misdirection by the court a quo wherein it found that the appellant was aware of the set down date yet there was no notice of set down. Rule 19 of the Magistrates Court Rules requires that the notice of set down should have a date and time for holding of a pre-trial conference. The court a quo made a finding in the absence of evidence. The case of Reserve Bank of Zimbabwe v Corrine Granger and Anor SC 34-01clearly establishes that a finding of fact that is contrary to the evidence actually presented amounts to a point of law. Ground 3 deals with whether the appellant was in willful default. It is trite that in the application for rescission of judgment, that the question of willfulness of the default is a question of law. See Zimbank Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC) and Neuman (Pvt) Ltd v Marks (2) 1960 SA 170 SR. Ground 4 is self-evident. It attacks the court a quo’s finding that the acknowledgement of debt was properly executed when that same acknowledgement of debt had not been able to sustain an application for summary judgment. This is likened by the appellant to having the court a quo reviewing another magistrate’s decision made in the summary judgment application. Was this proper at law? This therefore presents a question of law for determination. Ground 5 was said to be more or less similar to ground 1 and it was argued that it was incumbent upon the court a quo to consider whether the appellant had any arguable basis for defence. Ground 6 has been struck out. There is no merit in this point in limine which appears to have been taken as a matter of fashion as no arguments were advanced for it. This is undesirable conduct on the part of legal practitioners who seem to do everything possible to avoid going into the merits of a matter. Merits of The Matter In support of ground 1 , Mr Muhlekiwa submitted that there was no notice of set down advising on the date and time of the pretrial conference. Though the appellant was indeed served with PTC papers, there was no notice of set down. Order 19 (1) (3) of the Magistrates Court Rule provides as follows. “If the parties to an action consent to such a course, a pre-trial conference in terms of sub rule (1) shall be held before a magistrate, in chambers, at a date and time fixed by the clerk of court in consultation with the parties.” Order 19 (1) (4) further provides that, “The clerk of court, acting on the instructions of the magistrate may at any time on reasonable notice, notify the parties to an action to appear before a magistrate in chambers, on a date and at a time specified in the notice, for a pretrial conference with the object of reaching agreement on or setting the matters referred to in Sub-rule (2), and the magistrate may at the same time ………” The respondent argued before the court a quo that the pretrial conference minute which it served on the appellant on 22 November 2023 constituted a notice of set down for the pre-trial conference. There was a clear legal issue to be determined by the court a quo which was whether the pre-trial conference minute constituted a valid notice of set down for a pre-trial conference. A perusal of the ruling of the court a quo shows that this issue was not dealt with. This is particularly so as the pre-trial conference minute appearing on page 115 of the consolidated record simply endorses the date of 30 November 2023 without a time and does not purport to be a notice of set down at all even though this is what the respondent relies on. It was incumbent upon the court a quo to determine the issue placed before it. In Nzara v Shumba SC18/18, it was held that the function of a court is to determine disputes placed before it. Had the court a quo engaged with the dispute, it would have more easily resolved the question of whether the appellant was in willful default. In Zimbabwe Banking Corp v Masendeke 1995 (2) ZLR 400 (S) it was held that willful default occurs when a party with full knowledge of the service of set down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing. It is clear that the court a quo erred in failing to determine whether the appellant had been served with a proper/ valid notice of set down. Ground 1 therefore succeeds. Ground 2 also succeeds on the above reasoning. There was no proper notice of set down for the pre- trial conference. The pre-trial conference minute simply endorsed a date without a time as required by Order 19 (1) (3) and (1) (4). Order 19 (1) (3) provides as follows: “If the parties to an action consent to such a course, a pre-trial conference in terms of subrule (1) shall be held before a magistrate, in chambers, at a date and time fixed by the clerk of court in consultation with the parties.” (my emphasis) Order 19 (1) (4) further provides that, “The clerk of court, acting on the instructions of the magistrate may at any time on reasonable notice, notify the parties to an action to appear before a magistrate in chambers, on a date and at a time specified in the notice, for a pretrial conference with the object of reaching agreement on or setting the matters referred to in Sub-rule (2), and the magistrate may at the same time ………” (my emphasis) In such circumstances, how could the appellant have been found to be in willful default? Ground 3 also flows from the findings in grounds 1 and 2. An explanation of misdiarisation in the face of no set down time can never be anything except a reasonable explanation. In the absence of a time endorsed on the pre-trial conference minute, the appellant had worked on its own assumptions. Grounds of appeal 4 and 5 seem to address whether the appellant had a bona fide defence to the claim. The appellant’s case is that it had raised several defences against the respondent ‘s claim. The court a quo is alleged to have singled out one defence being that the acknowledgment of debt had not been validly executed. The others were totally ignored. This amounts to a misdirection. On the acknowledgment of debt, it was argued that there is an extant ruling of the court a quo which dismissed an application for summary judgment which had been based on the same acknowledgment of debt. In that respect, there was therefore a judgment of a competent court with similar jurisdiction. It was therefore a misdirection on the part of the court a quo to turn around and accept that acknowledgement of debt as valid. Some of the defences not canvassed by the court a quo, were an allegation that rent was over charged from August 2021 at USD 1 700 instead of USD 1430. The second was that, contrary to the agreement between the parties, the respondent unlawfully appropriated the sum of USD 6 250 paid as rent towards interest. It was also alleged that an amount of USD 4 000 paid as rent in February 2023, had not been taken into account. It was also alleged and stood unrefuted that the respondent maintained a well inside the rented premises in breach of the lease agreement. The appellant’s claim that he had incurred renovation costs in excess of USD 10 000 was brushed away by the respondent as operational costs. The appellant insisted that it had been agreed that these were to be set off against rent payable. Finally, eviction had been resisted on account of there being a valid extant lease agreement. As the respondent had not denied most of the above averments, it was argued that they should be taken as admitted. See Shumba and Anor v Zec and Anor 2008 (2) ZLR 65 (S). There was even a dispute on the tenure of the lease agreement between the parties with the appellant claiming it was a five- year lease agreement and the respondent saying it was a one-year lease. Flowing from this, it was argued that if indeed the parties had a one-year lease agreement the claim for arrear rentals would be bad at law and the respondent should have claimed holding over damages instead. Mr Mudawu submitted that the appellant had no bona fide defence as it did not indicate when it had paid the claimed rentals. It was averred that the acknowledgment of debt had been validly executed. Benson Tamirepi who was appellant’s representative and who signed the acknowledgement of debt in April 2023 had not filed an affidavit confirming the appellant’s assertion that he signed under duress. The challenge to the acknowledgment of debt coming only in December 2023 was said to point to the validity of the acknowledgment of debt. The respondent denied ever having locked the appellant out of the premises, particularly as there was no application for a spoliation order. A perusal of the appellant’s founding affidavit in the application for rescission of judgment, in particular on page 142 -143 of the consolidated record from paras 29 to 36 indeed shows the several grounds of defence raised by the appellant. A consideration of the court a quo’s ruling on the application for rescission shows that the court did not engage with any of the other defences outlined above. It limited itself to accepting the acknowledgment of debt as valid. It did not comment on the fate of the other defences. The manner in which the court proceeded is what was cautioned against in Gwarawadzimba v CJ Pertron and Company (Pty) Ltd SC12/16 wherein it was held that: “The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, “unless the issue so determined can put the whole matter to rest.” In casu it was not made clear whether the determination of the issue of the acknowledgement of debt was determined to have put everything else to rest. It was also held in Gwaradzimba case supra, that: “The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed the failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of trial.” In casu, the order of the court a quo in the application for summary judgment is telling on the existence of a dispute on rentals. I reproduce the order below: “IT IS ORDERED THAT: There present application does not meet the requirements of summary judgment. There are a number of issues in respect of rentals that should be ventilated on trial. The matter should be ventilated on trial. The matter should therefore proceed to trial in terms of the rules.” It is our finding therefore that the court a quo erred in not determining whether the appellant had a bona fide defence in the other grounds placed before it. These grounds raised issues with the rentals claimed. Wherefore we make the following order: The appeal be and is hereby allowed. The judgment of the court a quo is hereby set aside and substituted with the following: - The default judgment granted on 30 November 2023 in favour of the respondent be and is hereby set aside.The respondent be and is hereby ordered to pay the costs of suit on the legal practitioner and client scale. The respondent be and is hereby ordered to pay costs of the apeal on an ordinary scale. Muchawa J……………………………………………………. Mhuri J AGREES……………………………………………… Muhlekiwa Legal Practice, Appellant’s Legal Practitioners Chatsama And Partners, Respondent’s Legal Practitioners 8 HH 33-25 HCH 797/24 8 HH 33-25 HCH 797/24 MEDIWOOL (Private) Limited versus GILBERT KARENGA MASWERA HIGH COURT OF ZIMBABWE MHURI, & MUCHAWA JJ HARARE, 21 May 2024 & 24 January 2025 E T Muhlekiwa, for the Appellant B Mudawu, and P Tichaona, for the Respondent MUCHAWA J: This is an appeal against the whole judgment of the Magistrates Court (Civil Court) sitting at Harare in case number HRE- CCG 1424/23 which was handed down on 30 January 2024. The judgment appealed against dismissed an application for rescission of judgment lodged by the now appellant with costs on the ordinary scale. The grounds of appeal are as follows, The court a quo erred in totally ignoring and failing to determine whether or not the “plaintiff’s pretrial conference minute” in HRE CCG 1424/23 constitutes a valid notice of set down for pretrial conference hearing in terms of Order 19 of the Magistrates Court (Civil) Rules, 2018, which was an issue before it. The court a quo grossly misdirected itself in finding that the appellant and its legal practitioner were aware of the set down of 30 November 2023 when in fact there was no notice of set down for pretrial conference hearing showing the date and time upon which the respondent’s action in HRE, CCG 1424/23 had been set down for pre-trial conference hearing. Even if it is found that the “plaintiff’s pre-trial conference minute” in HRE CCG 1424/23 constituted a valid notice of set down for hearing, the court a quo further grossly misdirected itself in finding that the appellant was in willful default. The appellant’s explanation that this was a case of misdiarisation was not uncontroverted and the appellant’s conduct of attending court on 30 November 2023 at 11.00 am shows that the appellant did not intend to wilfully default attending court. The court a quo erred in discounting the appellant’s explanation that it was coerced into the acknowledgement of debt when there is an extant judgment under the same case number HRE-CCG 1424/23 dismissing the respondent’s motion for summary judgment whose motion was founded on the same acknowledgement of debt. The court a quo erred in not determining the appellant’s grounds of defense appearing in paragraphs 30 to 36 of the appellant’s founding affidavit in the application for rescission of judgment and which grounds had good prospects of reversing the default judgment in favour of the respondent. Furthermore, had the court a quo determined the appellant’s grounds of defense above, it ought to have found that the appellant’s grounds of defense have good prospects of reversing the default judgment and consequently the court a quo should have granted the appellant’s application for rescission of default judgment. The relief sought is as follows: “1. The appeal be and is hereby allowed 2. The judgment of the court a quo is hereby set aside and substituted with the following: - “(i) The default judgment granted on 30 November 2023 in favour of the respondent be and is hereby set aside. (ii) The respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client scale.” 3. The respondent be and is hereby ordered to pay the costs of the appeal on a legal practitioner and client scale.” The brief background facts to the matter, are that the now respondent issued out summons under case number HRE CCG 1424/23 against the now appellant. The particulars of the claim were that the parties had entered into a lease agreement on 1 October 2020 wherein the respondent had leased his premises known as stand number 17042 A Culton Road, Graniteside, Harare to the defendant to run its cotton processing business from there. Rentals are alleged to have been agreed on at an initial amount of USD 600 then USD 700 for December 2020 to January 2021. It was to be USD 900 for February to March 2021, then USD 1000 for April to May 2021. This amount would go up to USD 1430 for June to July 2021 and thereafter USD 1700 from August 2021 to April 2023 which was the date of summons. It was alleged that by the date of issuing summons, the appellant was in arrears of rentals amounting to USD 30 031.00 and had failed, neglected or refused to pay this amount and to vacate the premises. Judgement was therefore sought for payment of the arrear rentals, an order evicting the defendant from the premises, payment of interest at the prescribed rate from the date of issuance of the summons to date of full payment. The appellant entered appearance to defend the claim. An application for summary judgment was subsequently filed as there was an acknowledgement of debt allegedly executed by the appellant. The application for summary judgment was dismissed as the court a quo found that there were a number of issues in respect of rentals that should be ventilated on trial. It was directed that the matter should proceed to trial in terms of the rules. Meanwhile under case number HRE C-CG 1426/23 the respondent had filed an ex-parte application for rent attachment against the appellant on the pretext that the appellant had indicated its intention to vacate the premises without paying off all the rent arrears. This was granted and on 2 June 2023, the Messenger of Court enforced the rent attachment order upon the appellant’s assets. Once it was directed that the matter proceeds in terms of the Rules, to trial, a pre-trial conference was to be held on 30 November 2023 and the appellant was in default. Default judgment was entered for the Respondent granting the arrear rentals and ejectment of the appellant. Thereafter the appellant applied for rescission of judgment which application was dismissed, hence this appeal. At the hearing of the matter parties made submissions on points in limine and the merits. The points in limine are as follows: An application for amendment of appeal ground 3. Whether appeal grounds 3 and 6 are concise. Whether the appeal is now academic as it has been overtaken by events. Whether the appellant has approached the court with dirty hands. Whether the grounds of appeal are defective for failure to raise any point of law We reserved our ruling on these. Hereunder is the ruling and we deal with each point in limine in turn below and thereafter proceed to the merits. Points In Limine The application for amendment of appeal ground 3 Mr Muhlekiwa applied for the amendment of ground 3 of appeal by deleting the word “not” in the second sentence, and for the sentence to read as follows: “The appellant’s explanation that this was a case of mis-diarisation was uncontroverted and……” Instead of: “The appellant’s explanation that this was a case of mis-diarisation was not uncontroverted….” Mr Mudawu was opposed to the application for amendment of the ground on the basis that the laid down procedure to be followed in such an amendment had not been followed. Such procedure is said to be laid down in the case of Sambaza v AI Shams Global B.V Ltd SC 3/18. What is involved is to either make a chamber application or notice of amendment and serve it on the other party to enable it to take a position and deal with potential prejudice. Mr Muhlekiwa, in his reply, distinguished the Sambaza case as it dealt with a notice of appeal and prayer which were both entirely defective and was dealt with in terms of r32 of the Supreme Court Rules which is not similar to the High Court Rules. It was argued that in this case the amendment sought does not alter the complexion of the appeal or submissions made by the parties and what is merely sought is to correct the grammar in the sentence so that the sentence has meaning as it has two negatives. It was pointed out that the Respondent had not pointed to any prejudice to be suffered by it, if the amendment was effected. Furthermore, Mr Muhlekiwa stated that what is required is for a party to specify the grounds to be amended and show how they are to be amended and that such amendment can be sought on the day of hearing or by chamber application. I agree with Mr Muhlekiwa that the case of Sambaza supra is totally distinguishable. It dealt with a notice of appeal which was found not to be compliant with r29 (1) (a) to (f) of the Supreme Court Rules which are mandatory. It was held that a notice of appeal which does not comply with the Rule is fatally defective and cannot be amended as there will be nothing to amend. It is a trite legal position that a nullity cannot be amended. The facts in this case are entirely different. It is not alleged that the ground of appeal sought to be amended is not compliant with any High Court Rule. No prejudice was alleged which would arise from the amended ground of appeal. It is a purely grammatical amendment. Counsel for the Respondent was advised of this before the hearing. Due to the nature of the amendment sought, the Respondent had enough time to consider any likely prejudice. As none was indicated, there must be none. We are alive to the need to give notice to the other side and allow a response when an amendment is sought. This was adequately done in the circumstances of this case. In the result, the amendment sought by the appellant is hereby granted. The ground therefore now reads as follows: - “3 Even if it is found that the “plaintiff’s pre-trial conference minute in HRE C- CG1424/23 constituted a valid notice of set down for hearing, the court a quo further grossly misdirected itself in finding that the appellant was in willful default. The appellant’s explanation that this was a case of mis-diarisation was uncontroverted and the appellant’s conduct of attending court on 30 November 2023 at 11:00 am shows that the appellant did not intend to willfully default attending court.” Whether grounds of appeal 3 and 6 are concise Mr Mudawu submitted that grounds of appeal 3 and 6 are not concise but are argumentative and therefore fatally defective. Ground 3 was said to cover 7 lines and that the second part is argumentative. Ground 6 was said to be totally unnecessary. On the strength of the cases of Chikura N.O and Anor v AI Shams Global BVI Ltd SC 17/17 and Songono v Minister of Law and Order 1996 (4) SA 384, it was prayed that these grounds should be struck out. Mr Muhlekiwa submitted that ground 3 is concise as it attacks a misdirection that even if it is held that there was proper notice, the particular and specific misdirection is set out in the second sentence otherwise the ground of appeal would be general. Furthermore, it was conceded that ground 6 supplements ground 5. At the same time, it was averred that ground 5 is more or less similar to ground 1 as the court a quo should have considered whether there were arguable grounds for defence. In support of its argument, the appellant referred the court to the case of Zvokusekwa v Bikita RDC SC 44/15 which held that the court should be guided by the substance of the grounds of appeal and not the form. The learned authors Herbstein and Van Winsen, The Civil Practice of the High Court of South Africa, 5th edition volume 2 at page 1158 wrote: “It has been held that the grounds of appeal………. must be clearly and succinctly set out in clear and unambiguous terms so as to enable the court and the respondent to be fully informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal.” In Xayimpi v Chairman Judge White Commission [2006] 2 ALL SA 442 (E) at 446 and No- Italy Phandirre Mtirara (Pty) Ltd and 10 others ZA ECHC/2007 /116 it was held that: “The application for leave to appeal is not a model of good craftsmanship and clarity. It is not only argumentative but also prolix and the proposed ground of appeal is not clearly and succinctly set out in clear and unambiguous terms as proclaimed in various judicial authorities.” By his own admission, counsel for the appellant submitted that ground of appeal 6 is supplementary to ground 5. The extension of ground 5 into ground 6 does result in an argumentative and prolix ground of appeal. That is undesirable and to that end, ground 6 cannot therefore escape being struck out. Ground 3 is not a model of good draftsmanship. It is drawn out and clearly argumentative. The ground of appeal could just have ended at stating that the court a quo erred in finding that the appellant was in willful default. The second sentence puts in the argument which would be better placed in the head of argument in support of the ground of appeal. This fact does not, however, make the ground ambiguous. It makes clear, though not succinctly, the case which the respondent is to meet in opposing the appeal. Because of this ground 3 escapes the chop. This point in limine partly succeeds and ground of appeal 6 is struck out. Whether The Appeal is Now Academic as It has Been Overtaken by Events Mr Madawu submitted that the order which the appellant intended to set aside by way of an application for rescission in the court a quo has been executed through a writ dated 4 December 2023 authorized by the Magistrates Court. The appellant is said to have been successfully ejected from the premises in issue on 12 December 2023. Regarding the recovery of arrear rentals in terms of the order, a sale in execution was done on 29 December 2023 following an order for rent attachment executed on 2 June 2023 under case number HRE- CCG 1426/23. The court was referred to the cases of Africa Distillers Ltd v Zietkwiecz 1980 ZLR 113 (H) and Sergio Tarwireyi v Samuel Mboneli Kunene HH 19-18 wherein it was held that the court will not concern itself with suits in which the resulting judgment will be no more than brutum fulmen. It was contended that even if the application for rescission succeeded it would be merely academic, and moot and the court should not waste its time on such a venture. On the other hand, Mr Muhlekiwa urged the court to exercise its discretion to hear the matter. The law on mootness was covered by reference to the case of Erica Ndewere v President of Zimbabwe N.O and Another SC 57/22. It was held that a matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable. The position was more succinctly set out in the case of Thokozani Khupe and Another v Parliament of Zimbabwe and others CCZ 20/19 at p7 where it was held as follows “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances, the court’s jurisdiction ceases, and the case becomes moot ------The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of such a nature that the decision sought will have no practical effect or result.” The court was referred to a two stage approach set out in Zimsec v Mukomeka and Anor SC10/20 wherein the Supreme Court of Canada in Borowski v Canada (Attorney General ) [1989] 1 SCR 342 is cited with approval. It was held as follows: “It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic if so, it is then necessary to decide if the court should exercise its discretion to hear the case.” “The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy consideration underlying the doctrine of mootness- Borowski’s case, supra. The overriding consideration is whether or not it is in the interest of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11: “……. discretion must be exercised according to what the interest of justice require. A prerequisite for the exercise of the discretion is that any order which thus Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.” I turn to apply this test to the facts in issue. The first step is to decide whether the tangible and concrete dispute has disappeared rendering the issues academic. The claim in the summons had two basic issues to it. One was for ejectment of the appellant and the other for arrear rentals in the amount of USD 30 031.00. The appellant was already ejected from the premises on 12 December 2023. On the arrear rental, a sale in execution was conducted on 29 December 2023. The sale realized about USD 25 000 yet the judgment debt was USD 31 031 plus the messenger of Court Commission and VAT at 15%. Should the court exercise its jurisdiction on the basis of the outstanding amount owed in the judgment debt? Mootness cannot apply as the amount of rentals owed is in issue and an amount is still outstanding. This could very well give rise to a claim for damages. We find therefore that it is in the interests of justice to hear this case on the merits as the order to be made by the court will have some practical effect regarding the amount of arrear rentals owed, whether the whole, less or an excess amount has been recovered. It is for this reason that this point in limine is dismissed. Whether the Appellant Has Approached the Court with Dirty Hands As Mr Mudawu elected to abide by the papers filed of record on the rest of the points in limine, I refer to the heads of argument on this point. The respondent’s case is that the appellant has dirty hands. Reliance was placed on the case of Julius Tawona Makoni v Pauline Makoni &Anor SC 7/2018 for the arguement that a litigant who tendered costs cannot obtain a relief stemming from an application or summons filed against a party in whose favour costs have been awarded without the former having paid same. Mr Muhlekiwa distinguished the present case from that of Makoni supra in that in the Makoni supra judgment had been awarded and costs taxed, and further proceedings had been instituted before payment of costs. In casu the respondent wrote a letter of demand requesting costs above USD 10 000.00 yet costs were on an ordinary scale and to the date of the appeal hearing, there were no taxed costs. There is indeed a clear distinction in these cases. Rule 72 (3) of the High Court Rules, 2021 provides for taxation of costs in order to afford the party who has been awarded an order of costs reasonably incurred by him or her in relation to his or her claim or defence and ensure that all costs shall be borne by a party against whom such order has been awarded. In casu as no taxation has been done, the authority of Makoni supra cannot be used. We find thatthe principle of dirty hands does not apply and resultantly dismiss this point in limine. Whether the Grounds of Appeal are defective for failure to raise any point of law The point that grounds of appeal 1 to 6 are defective as they do not raise any question of law but factual issues which the appellate court has no concern with was not persisted with in oral arguments. The only point argued related to ground 3 and 6 not being concise which point I have already dealt with earlier. Even though the respondent elected to abide by its papers on this point, there is no address on each ground of appeal which points to the paucity in each ground in this respect. On the contrary Mr Muhlekiwa argued that ground 1 of appeal raises the issue that the court a quo failed to determine an issue which was before it. The issue was whether the plaintiff’s (respondent’s) pre-trial conference minute constitutes a valid notice of set down for the pre-trial conference as this was the basis for the rescission sought. There is a long line of case law to the effect that where a court fails to determine an issue before it, that amounts to a misdirection. See Nzara v Shumba SC 18/18 and Heywood Investments (Pvt) Ltd t/a GDC Haulers v Pharaoh Zakeyo SC 32/13 and GMB v Muchero SC 59/07. In our view ground 1 of appeal raises a question of law. On ground 2 the appellant contends that the ground attacks the misdirection by the court a quo wherein it found that the appellant was aware of the set down date yet there was no notice of set down. Rule 19 of the Magistrates Court Rules requires that the notice of set down should have a date and time for holding of a pre-trial conference. The court a quo made a finding in the absence of evidence. The case of Reserve Bank of Zimbabwe v Corrine Granger and Anor SC 34-01clearly establishes that a finding of fact that is contrary to the evidence actually presented amounts to a point of law. Ground 3 deals with whether the appellant was in willful default. It is trite that in the application for rescission of judgment, that the question of willfulness of the default is a question of law. See Zimbank Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC) and Neuman (Pvt) Ltd v Marks (2) 1960 SA 170 SR. Ground 4 is self-evident. It attacks the court a quo’s finding that the acknowledgement of debt was properly executed when that same acknowledgement of debt had not been able to sustain an application for summary judgment. This is likened by the appellant to having the court a quo reviewing another magistrate’s decision made in the summary judgment application. Was this proper at law? This therefore presents a question of law for determination. Ground 5 was said to be more or less similar to ground 1 and it was argued that it was incumbent upon the court a quo to consider whether the appellant had any arguable basis for defence. Ground 6 has been struck out. There is no merit in this point in limine which appears to have been taken as a matter of fashion as no arguments were advanced for it. This is undesirable conduct on the part of legal practitioners who seem to do everything possible to avoid going into the merits of a matter. Merits of The Matter In support of ground 1 , Mr Muhlekiwa submitted that there was no notice of set down advising on the date and time of the pretrial conference. Though the appellant was indeed served with PTC papers, there was no notice of set down. Order 19 (1) (3) of the Magistrates Court Rule provides as follows. “If the parties to an action consent to such a course, a pre-trial conference in terms of sub rule (1) shall be held before a magistrate, in chambers, at a date and time fixed by the clerk of court in consultation with the parties.” Order 19 (1) (4) further provides that, “The clerk of court, acting on the instructions of the magistrate may at any time on reasonable notice, notify the parties to an action to appear before a magistrate in chambers, on a date and at a time specified in the notice, for a pretrial conference with the object of reaching agreement on or setting the matters referred to in Sub-rule (2), and the magistrate may at the same time ………” The respondent argued before the court a quo that the pretrial conference minute which it served on the appellant on 22 November 2023 constituted a notice of set down for the pre-trial conference. There was a clear legal issue to be determined by the court a quo which was whether the pre-trial conference minute constituted a valid notice of set down for a pre-trial conference. A perusal of the ruling of the court a quo shows that this issue was not dealt with. This is particularly so as the pre-trial conference minute appearing on page 115 of the consolidated record simply endorses the date of 30 November 2023 without a time and does not purport to be a notice of set down at all even though this is what the respondent relies on. It was incumbent upon the court a quo to determine the issue placed before it. In Nzara v Shumba SC18/18, it was held that the function of a court is to determine disputes placed before it. Had the court a quo engaged with the dispute, it would have more easily resolved the question of whether the appellant was in willful default. In Zimbabwe Banking Corp v Masendeke 1995 (2) ZLR 400 (S) it was held that willful default occurs when a party with full knowledge of the service of set down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing. It is clear that the court a quo erred in failing to determine whether the appellant had been served with a proper/ valid notice of set down. Ground 1 therefore succeeds. Ground 2 also succeeds on the above reasoning. There was no proper notice of set down for the pre- trial conference. The pre-trial conference minute simply endorsed a date without a time as required by Order 19 (1) (3) and (1) (4). Order 19 (1) (3) provides as follows: “If the parties to an action consent to such a course, a pre-trial conference in terms of subrule (1) shall be held before a magistrate, in chambers, at a date and time fixed by the clerk of court in consultation with the parties.” (my emphasis) Order 19 (1) (4) further provides that, “The clerk of court, acting on the instructions of the magistrate may at any time on reasonable notice, notify the parties to an action to appear before a magistrate in chambers, on a date and at a time specified in the notice, for a pretrial conference with the object of reaching agreement on or setting the matters referred to in Sub-rule (2), and the magistrate may at the same time ………” (my emphasis) In such circumstances, how could the appellant have been found to be in willful default? Ground 3 also flows from the findings in grounds 1 and 2. An explanation of misdiarisation in the face of no set down time can never be anything except a reasonable explanation. In the absence of a time endorsed on the pre-trial conference minute, the appellant had worked on its own assumptions. Grounds of appeal 4 and 5 seem to address whether the appellant had a bona fide defence to the claim. The appellant’s case is that it had raised several defences against the respondent ‘s claim. The court a quo is alleged to have singled out one defence being that the acknowledgment of debt had not been validly executed. The others were totally ignored. This amounts to a misdirection. On the acknowledgment of debt, it was argued that there is an extant ruling of the court a quo which dismissed an application for summary judgment which had been based on the same acknowledgment of debt. In that respect, there was therefore a judgment of a competent court with similar jurisdiction. It was therefore a misdirection on the part of the court a quo to turn around and accept that acknowledgement of debt as valid. Some of the defences not canvassed by the court a quo, were an allegation that rent was over charged from August 2021 at USD 1 700 instead of USD 1430. The second was that, contrary to the agreement between the parties, the respondent unlawfully appropriated the sum of USD 6 250 paid as rent towards interest. It was also alleged that an amount of USD 4 000 paid as rent in February 2023, had not been taken into account. It was also alleged and stood unrefuted that the respondent maintained a well inside the rented premises in breach of the lease agreement. The appellant’s claim that he had incurred renovation costs in excess of USD 10 000 was brushed away by the respondent as operational costs. The appellant insisted that it had been agreed that these were to be set off against rent payable. Finally, eviction had been resisted on account of there being a valid extant lease agreement. As the respondent had not denied most of the above averments, it was argued that they should be taken as admitted. See Shumba and Anor v Zec and Anor 2008 (2) ZLR 65 (S). There was even a dispute on the tenure of the lease agreement between the parties with the appellant claiming it was a five- year lease agreement and the respondent saying it was a one-year lease. Flowing from this, it was argued that if indeed the parties had a one-year lease agreement the claim for arrear rentals would be bad at law and the respondent should have claimed holding over damages instead. Mr Mudawu submitted that the appellant had no bona fide defence as it did not indicate when it had paid the claimed rentals. It was averred that the acknowledgment of debt had been validly executed. Benson Tamirepi who was appellant’s representative and who signed the acknowledgement of debt in April 2023 had not filed an affidavit confirming the appellant’s assertion that he signed under duress. The challenge to the acknowledgment of debt coming only in December 2023 was said to point to the validity of the acknowledgment of debt. The respondent denied ever having locked the appellant out of the premises, particularly as there was no application for a spoliation order. A perusal of the appellant’s founding affidavit in the application for rescission of judgment, in particular on page 142 -143 of the consolidated record from paras 29 to 36 indeed shows the several grounds of defence raised by the appellant. A consideration of the court a quo’s ruling on the application for rescission shows that the court did not engage with any of the other defences outlined above. It limited itself to accepting the acknowledgment of debt as valid. It did not comment on the fate of the other defences. The manner in which the court proceeded is what was cautioned against in Gwarawadzimba v CJ Pertron and Company (Pty) Ltd SC12/16 wherein it was held that: “The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, “unless the issue so determined can put the whole matter to rest.” In casu it was not made clear whether the determination of the issue of the acknowledgement of debt was determined to have put everything else to rest. It was also held in Gwaradzimba case supra, that: “The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed the failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of trial.” In casu, the order of the court a quo in the application for summary judgment is telling on the existence of a dispute on rentals. I reproduce the order below: “IT IS ORDERED THAT: There present application does not meet the requirements of summary judgment. There are a number of issues in respect of rentals that should be ventilated on trial. The matter should be ventilated on trial. The matter should therefore proceed to trial in terms of the rules.” It is our finding therefore that the court a quo erred in not determining whether the appellant had a bona fide defence in the other grounds placed before it. These grounds raised issues with the rentals claimed. Wherefore we make the following order: The appeal be and is hereby allowed. The judgment of the court a quo is hereby set aside and substituted with the following: - The default judgment granted on 30 November 2023 in favour of the respondent be and is hereby set aside. The respondent be and is hereby ordered to pay the costs of suit on the legal practitioner and client scale. The respondent be and is hereby ordered to pay costs of the apeal on an ordinary scale. Muchawa J……………………………………………………. Mhuri J AGREES……………………………………………… Muhlekiwa Legal Practice, Appellant’s Legal Practitioners Chatsama And Partners, Respondent’s Legal Practitioners