Procedural Law-viz rescission of judgment re rescission of default judgment.
Procedural Law-viz default judgment re Rule 57.
Procedural Law-viz rules of court re High Court Rules iro Rule 57.
Procedural Law-viz High Court Rules re Rule 57 iro default judgment.
Procedural Law-viz default judgment re failure to serve notice of appearance to defend,
Procedural Law-viz manner of proceedings re filing of notice of appearance to defend iro Rule 49.
Procedural Law-viz form of proceedings re fining of notice of appearance to defend,
Procedural Law-viz nature of proceedings re filing of notice of appearance to defend.
Procedural Law-viz rules of court re High Court Rules iro Rule 49.
Procedural Law-viz High Court Rules re Rule 49 iro filing of notice of appearance to defend.
Procedural Law-viz automatic bar re failure to file notice of appearance to defend on notice to the other party iro Rule 50.
Procedural Law-viz rescission of judgment re rescission of default judgment iro Rule 63.
Procedural Law-viz rules of court re High Court Rules iro Rule 63.
Procedural Law-viz High Court Rules re Rule 63 iro rescission of default judgment.
This
is an application for rescission of judgment. The salient facts of the case are
the following.
The
respondent issued summons for debt collection against the applicant under case
number HC514/10. The applicant was served with the summons on 8 March 2010. The
applicant entered an appearance to defend the action on 22 March 2010 but did
not serve the notice on the respondent.
The applicant's legal practitioners renounced agency on 31 March 2010.
The respondent made an application for default judgment in terms of Order 9
Rule 57 and it was granted on 1 April 2010. A warrant of execution against
property was issued by the respondent on 14 April 2010. The Deputy Sheriff
attached property at the applicant's address and failed to remove because the
premises were locked. On 22 April 2010, the respondent's legal practitioners
were served with a provisional order granted by this court staying execution of
the order under case number HC415/10. The applicant also served the respondent
with an application for rescission.
It
is beyond dispute that the applicant did not serve his notice of appearance to
defend on the respondent. He was required to do so by Order 7 Rule 49 of the
High Court Rules, 1971. The notice was not in the file at the time the
respondent made his application for default judgment.
The
applicant was barred from the foregoing.
The
applicant's notice of appearance was not good or proper as it does not comply
with Order 7 Rule 49.
In
terms of Rule 49, a defendant shall, within 24 hours of entry of appearance, serve
a written notice on the plaintiff or his legal practitioner. In terms of Rule
50, the defendant shall be deemed to be barred for failure to comply with the
provisions of Rule 49.
The
applicant was therefore in willful default at the time the respondent applied
for a rescission of judgment – Zimbabwe Banking Corporation v Masendeke 1995
(2) ZLR 400 (S) and V. Satis & Co (Pvt) Ltd v Fenlake (Pty) Ltd 2002 (1)
ZLR 378 (H). From these authorities, the test for rescission of judgment under
Rule 63 of the High Court Rules is whether the applicant has established a good
and sufficient cause for the relief sought. Absence of willful default does not
necessarily mean that rescission must be granted; the applicant must still
establish a good and sufficient cause for rescission.
In
casu, the default was willful on
account of failure to comply with Rule 49.
The
applicant's argument on the merits is scant.
He
merely makes a naked averment that he denies receiving the amount of the loan
and agreeing on the rate of interest. His case is weak on the merits. The
cumulative effect of the willful default and a weak case on the merits is that
the application is devoid of merit.
Accordingly,
the application for rescission is dismissed with costs.
NDOU J: This
is an application for rescission of judgment.
The salient facts of the case are the following. The respondent issued summons for debt
collection against the applicant under case number HC 514/10. The applicant was served with the summons on
8 March 2010. The applicant entered an
appearance to defend the action on 22 March 2010 but did not serve the notice
on the respondent. The applicant's legal
practitioners renounced agency on 31 March 2010. The respondent made an application for
default judgment in terms of Order 9 Rule 57 and it was granted on 1 April
2010. A warrant of execution against
property was issued by respondent on 14 April 2010. The Deputy Sheriff attached property at the
applicant's address and failed to remove because the premises were locked. On 22 April 2010, the respondent's legal
practitioners were served with a provisional order granted by this court
staying execution of the order under case number HC 415/10. The applicant also served the respondent with
an application for rescission. It is
beyond dispute that the applicant did not serve his notice of appearance to
defend on the respondent. He was
required to do so by Order 7 Rule 49 of the High Court Rules, 1971. The notice was not in the file at the time
the respondent made his application for default judgment. The applicant was barred from the foregoing.
The applicant's notice of appearance
was not good or proper as it does not comply with Order 7 Rule 49. In terms of Rule 49 a defendant shall within
24 hours of entry of appearance serve a written notice on the plaintiff
or his legal practitioner. In terms of
Rule 50, the defendant shall be deemed to be barred for failure to comply with
the provisions of Rule 49.
The applicant was therefore in
willful default at the time the respondent applied for a rescission of judgment
– Zimbabwe Banking Corporation vs Masendeke 1995 (2) ZLR 400 (S) and V. Satis & Co (Pvt) Ltd vs Fenlake (Pty) Ltd 2002 (1) ZLR 378
(H). From these authorities the test for
rescission of judgment under Rule 63 of the High Court Rules, supra, is whether the applicant has
established a good and sufficient cause for the relief sought. Absence of willful default does not
necessarily mean that rescission must be granted; the applicant must still
establish a good and sufficient cause for rescission. In casu,
the default was willful on account of failure to comply with Rule 49, supra.
The applicant's argument on the merits is scant. He merely makes a naked averment that he
denies receiving the amount of the loan and agreeing on the rate of interest. His case is weak on the merits. The cumulative effect of the willful default
and a weak case on the merits is that the application is devoid of merit.
Accordingly, the application for
rescission it dismissed with costs.
Webb, Low & Barry,
respondent's legal practitioners
