KAMOCHA J: The
applicant in this matter seeks an order in the following terms:
“It is ordered that:-
(1)
Application
be and is hereby granted;
(2)
Rescission
of judgment in case number HC 2168/07 be and is hereby granted;
(3)
Applicant
is authorized to proceed to request for a pre-trial conference date within
ten(10) days of this order;
(4)
No
order as to costs.”
The applicant and his legal practitioner failed to arrive on
time for a pre-trial conference which he had requested. He did arrive at his legal practitioner's
office at 0830 hours. His legal
practitioner advised him that the pre-trial conference was schedule for 1000
hours in the judges' chambers. The legal
practitioner filed an affidavit wherein he conceded his error and accepted that
the fault was entirely his. He
erroneously believed that the pre-trial conference was at 1000 hours instead of
an hour earlier. He and his client got
to court at 0940 hours only to be told that they were late. The matter had been disposed of at 0900 hours
and a judgment was granted against him in default.
This explanation in my view seems reasonable and
acceptable. There can be no doubt that
applicant wanted to prosecute his case except that his legal practitioner made
an error. He takes the blame for it.
Applicant seems to have a defence on
the question of prescription. He alleged
irregularities the manner the power of attorney was executed. He similarly alleged further irregularities
about the alleged donation to the 1st respondent. The matter deserves to be properly ventilated
at a trial.
Prescription in this matter was
subject to judicial interruption in terms of section 7 of the Prescription Act
[Chapter 8:11] see section 7(2) and (3).
In the result I would grant the
order sought in terms of the draft as amended.
The applicant is a man of straw who
cannot afford an award for costs.
There will therefore be no order for
costs.
Bulawayo Legal Projects Centre, applicant's legal practitioners
Messrs Moyo and Nyoni, 1st
respondent's legal practitioners
