MATANDA-MOYO J: This application is an application
for rescission of judgment entered against applicants on 18 January 2011. From
a reading of the facts of this matter applicants became aware of the judgment
in May and June of 2011. Rule 63(1) of the High Court Rules provides;
“Court may set aside judgment given in default
(i)
A party against whom judgment has been given in default, whether under these
rules or under any other law, may make a court application not later than one
month after he has had knowledge of the judgment to be set aside.”
Applicants counsel conceded that the application for
rescission of judgment was filed without condonation from court and that before
condonation was granted such application was not properly before the court.
Such concession was properly made. It is a settled principle of law that in
terms of r 63(1) a defendant against whom default judgment has been granted has
a period of one month from date he became aware of the judgment, to apply for
rescission. If he does not meet such deadline, he must first make an
application for condonation for late noting of an application for such
rescission. There must also be an explanation for the delay in seeking
condonation see also Viking Woodworks (Pvt) Ltd v Blue Bells
Enterprises Ltd 1998 (2) ZLR 249 (S) and Ngwende (Estate) v Masomera
HC 1308/10. Applicants counsel sought to make an oral application for
condonation for late noting of an application for rescission. I obliged him.
It is my finding however that the oral application made by
applicants counsel was defective in that no evidence was placed before the
court orally. The court had no evidence before it to come to any meaningful
decision on the application. Without such evidence the court has no option but
to dismiss the oral application for condonation for want of evidence.
On the application for rescission of judgment, it is my
finding that without condonation having granted such application was not
properly before the court see: John Harries Jones v Kim Graham
Strong SC 67/03 where the court held that failure to obtain condonation is
fatal to the proceedings.
Accordingly the application for condonation fails and is
dismissed.
Consequently the application for rescission of judgment is
not properly before the court. Applicants are also ordered to pay costs on an
attorney and client scale.
GN Mlotshwa & Company, applicants' legal
practitioners
Messrs
Sawyer & Mkushi, respondent's legal
practitioners
