MATHONSI J: There are 2 applications before me,
namely an application for condonation of the late filing of an application for
rescission of judgment and the application for rescission of judgment.
The parties agreed that both matters be heard at the same time.
Ideally the application for rescission of judgment should not have been filed
without condonation of its late filing. Filing it at the same time as the
application for condonation does not cure the defect. Now that it has been
filed it still cannot be considered without its late filing being
condoned. Therefore a dismissal of the application for condonation
essentially brings the rescission of judgment application to its knees.
The applicant is barred in both matters by reason of failure to file heads of
argument timeously, it having attempted to file heads of argument this
morning. Mr Dube appearing for the applicant confirmed that the applicant
was served with the respondent's heads of argument on 7 March 2013, almost a
month ago.
I do not agree that whatever order HLATSWAYO J made directing that the 2
matters be set down urgently to be heard at the same time, had the effect of
suspending the operation of the rules of court as argued by Mr Dube. In fact
that argument is simply disingenuous.
In terms of r 238 (2b), I intend to deal with the matter on the merits.
Looking at the application, it is clear that the applicant has not made a case
for condonation especially as the papers show that its predicament is as a
result of its own dilatoriness.
Accordingly both applications are hereby dismissed with costs on a legal
practitioner and client scale.
Cheda & Partners C/o Mawere & Sibanda,
applicant's legal practitioners
Coghlan Welsh & Guest,respondent's
legal practitioners
