Misheck Rueben Chipisa v Estate Late Bob Rivete and The Messenger of Court

The appellant had filed an application for rescission of judgment before the Magistrate's Court on 6 February 2020. The first respondent filed a notice of opposition on 20 February 2020, raising a point in limine that the appellant could not be heard without payment of security for costs. In his answering affidavit sworn on 25 February 2020, the appellant averred that security costs had been paid, but did not attach proof of payment. The record showed that security costs were actually only paid on 2 March 2020. The Magistrate's Court dismissed the appellant's application for rescission of judgment on the basis that security for costs had not been paid. The appellant appealed to the High Court.

• Whether the Magistrate's Court misdirected itself by dismissing the appellant's rescission application on the basis that security for costs had not been paid, when there was evidence by way of receipt that costs were paid on 2 March 2020
• Whether the Magistrate's Court erred at law by dismissing the application instead of removing the matter from the roll
• Whether an applicant who makes a false averment about payment of security costs in an answering affidavit is duty-bound to subsequently prove payment to the court once payment is made

The appeal was dismissed. The decision of the Magistrate's Court dismissing the application for rescission of judgment was upheld.

When a party avers in an affidavit that security for costs has been paid and is challenged on this point through a point in limine, that party is duty-bound to attach proof of payment to the court papers. A court cannot be expected to search the record for evidence of compliance. Where a party makes a false averment about payment in court papers (because payment had not yet been made at the time of swearing the affidavit), and subsequently makes payment, that party remains duty-bound to alert and prove to the court that payment has now been made, particularly where the issue of payment is before the court. Failure to do so does not constitute a misdirection by the court in finding that security costs had not been paid.

The court noted that while the appellant submitted on the second ground of appeal that the learned Magistrate should have struck the matter off the roll instead of dismissing it, the appellant paradoxically sought an order that the court should dismiss that finding and order the court a quo to proceed to hear the matter on the merits. The court observed that it could not proceed in that manner given that proof of payment for security costs had not been tendered before the learned Magistrate at the time of dealing with the issue.

This case establishes important principles regarding procedural obligations in relation to security for costs in rescission applications. It clarifies that when a party makes averments about compliance with procedural requirements (such as payment of security costs) in court papers, they bear the burden of proving such compliance, particularly when challenged. The case also emphasizes that parties cannot make false averments and then expect the court to search the record for subsequent compliance. It reinforces the duty of candour owed by litigants to the court.