The applicants seek the grant of interim relief in the form of a provisional order staying execution of a writ issued against them pending the determination of an application for rescission of judgment. This follows a default judgment granted under HC.,.

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal.

These are the reasons:-

The respondent was appointed executor of the estate of the late Phineas Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende.

This application was for condonation of late filing of an application for rescission of a default judgment granted by this court on 23 August 2010.

The bare bones of the matter are that prior to his demise, the late Lovemore Ngwende had instituted a court application, under case number HC1308/10, challenging the validity of the second Will said to have been executed by his late father, Phineas Ngwende. Apparently, a default judgment was granted against Lovemore Ngwende in that case after which he lodged an application for its rescission which he failed to prosecute timeously, prompting the respondent to make a chamber application, under case number HC5285/10, to have the application dismissed for want of prosecution.

On 23 August 2010, MUSAKWA J granted the chamber application by way of this order:

“Court application for Rescission of Default Judgment (sic) Case No. HC1308/10 be and is hereby dismissed for want of prosecution. First respondent pays costs of suit.”

In the present application, filed on 14 April 2011, the applicant was seeking condonation for late noting of an application for the rescission of MUSAKWA J's order of 23 August, 2010.

The law in an application of this nature is now trite.

In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (SC) A it was held that in terms of Rule 63(1) a defendant against whom a default judgment has been granted has a period of one month from the date he became aware of the judgment to apply for rescission of that judgment. If he does not make the application within that period, but wants to make it after the period has expired, he must first make an application for condonation of the late filing of the application. If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for rescission but also for the delay in seeking condonation. There are thus two hurdles to overcome. See also Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135..,.

In the instant case, the default order sought to be rescinded was granted on 23 August 2010. The late Lovemore Ngwende died in December 2010. The application for condonation was only filed on 14 April 2011. The applicant is non-committal as to when exactly he became aware of the default order save to say in the founding affidavit;

“We only became aware of the existence of the application (sic) when the respondent wrote a letter threatening to sell the house in Highfield which the window (sic) of late Lovemore Ngwende is residing…,. We could not challenge the application (sic) during the relevant time before the appointment of executor hence this delay. The delay was not wilful.”

The papers filed of record ventilate that at least by 3 January 2011 the widow of the late Lovemore Ngwende had become aware of the default order of 23 August 2010 for on that date she wrote to the Master of this Court complaining about the respondent's threat to dispose of the Highfield house to offset the liabilities of the estate. Even if the court were to be benevolent and accept that both the application for the rescission of the order as well as for condonation could not be filed before appointment of the executor, I would still be minded to find the explanation for the delay unacceptable.

The applicant was appointed executor dative of the late Lovemore Ngwende's estate on 1 March 2011. By then, Lovemore Ngwende's widow had long been aware of the existence of the default order. The application for condonation of late filing of the application for rescission of the default order was only filed on 14 April 2011 – one month 14 days after the appointment of the executor. The peroration in the applicant's founding affidavit that the delay was occasioned by the wait to have the executor appointed amounts to digging in the ashes. No explanation as to why the condonation was not sought as soon as possible after 1 March 2011 or why the application for rescission was also not filed soon after that date, or, at most, within one month post 1 March 2011 has been proferred.

In the event, the two hurdles the applicant had the onus of scaling remained insurmountable to him.

Even if one were to look at the prospects of success regarding the default order sought to be impugned, the complaint is that a matter should not be dismissed for want of prosecution due to a delay of only four months, I would still find the applicant non-suited if account is had to Order 32 Rule 236(3)(b). It provides that where the respondent has filed a notice of opposition and an opposing affidavit and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent may, on notice to the applicant, make a chamber application to dismiss the matter for want of prosecution.

This is exactly what the respondent did and I have no reason to doubt that my brother MUSAKWA J, in granting the chamber application, was satisfied, on the papers before him, that the requirements of the relevant Rule had been complied with.

It is not sufficient for the applicant in casu to merely baldly allege that he was not served with the notice for the chamber application or that the matter had been set down for hearing. If that was so then the proper procedure was for the applicant to invoke Rule 449(1)(a) for it would have been clear that the order was granted in error.

The applicant also attempted to go further on prospects of success regarding the main matter of challenging the Will.

While that aspect does not fall within the realm of the present application it behoves me to utter some strictures concerning it vis-à-vis the principle of finality to litigation. The first and final distribution account of the late Phineas Ngwende was approved by the Master of the High Court and the plot in contention, which the first Will had bequeathed to the late Lovemore Ngwende but was later bequeathed to Lovemore's stepmother and two stepbrothers in equal shares by the second Will has long been sold by private treaty for value and transferred to an innocent third party and the proceeds shared amongst the beneficiaries and dissipated. The prospects of success, even in the main matter, seem to be only a pie in the sky.

The foregoing were the reasons why the application for condonation for late filing of the application for rescission was dismissed with costs.

This is an opposed application for rescission of an order of divorce granted by this court on 19 May 2011 in case No. HC3037/10.

The order sought by the applicant is couched in the following terms;

“IT IS ORDERED

1. That the judgment that was issued in default of filing of a plea by the applicant in case Number 3037/10 on 17 May 2011 (sic) be and is hereby rescinded.

2. That the applicant will file her plea within 48 hours of this order being issued.

3. That there will be no order of costs if this application is not opposed.”

The background facts giving rise to this application can be summarised as follows;

The applicant was married to the respondent in terms of the Marriage Act [Chapter 5:11]; which marriage was solemnised on 8 December 1989. There are now only two minor children born out of that marriage, namely, Blessing Tawanda Zulu born on 26 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000.

The applicant has been ordinarily resident in the United Kingdom for some time where she is said to be working as a nurse at the same time seeking to regularise her resident status. The applicant is in custody of the two minor children in the United Kingdom and the Magistrates Court in Zimbabwe granted a contributory maintenance order against the respondent in respect of the minor children in case No. M333/11. The respondent is resident in Zimbabwe.

On 7 May 2010, the respondent issued summons out of this court seeking a decree of divorce, an order governing division of matrimonial assets, an order governing custody of the minor children and cost of suit if the matter is defended.

The applicant was served personally with the respondent's declaration at the Magistrates Court (Civil) Harare on 18 February 2011 where she was attending a court hearing - presumably the maintenance case.

On 25 February 2011 the applicant filed an appearance to defend and gave her address of service as that of her legal practitioners who had assumed agency, Mujeyi Manokore Attorneys.

On 23 March 2011, the respondent filed a notice to plead and intention to bar which was served upon the applicant's legal practitioners on the same day.

The applicant did not file the plea and the dias induciae expired which meant that the applicant was barred in terms of the Rules of the court and an endorsement to that effect was made by the Registrar on 11 April 2011.

The respondent proceeded to set the matter down on the unopposed roll and a notice of set down was served on the applicant's legal practitioners on 4 May 2011 and the set down date was on 12 May 2011. The applicant did not attend court, and, on 19 May 2011, my brother judge CHITAKUNYE J granted the following order;

“It is ordered that;

1. Divorce Order:- That a decree of divorce be and is hereby granted.

2. Maintenance:- The plaintiff will pay maintenance as per the Magistrates Court order granted at Harare in case No. M333/11.

3. Custody:- Custody of two minor children, namely, Blessing Tawanda Zulu born on 23 January 1996 and Ezra Munyaradzi Zulu born on 9 June 2000 be and is hereby granted to the defendant. The plaintiff shall enjoy reasonable access.

4. Property:-

4.1 Movable:- It be governed and distributed as per Annexure “B” to this order.

4.2 Immovable: It be governed and distributed as per Annexure B attached to this order.

5. That the defendant pays the costs of suit.”

On 13 June, the applicant filed this court application seeking the rescission of the order granted in default by CHITAKUNYE J.

Let me comment briefly on the distribution of the matrimonial estate as per Annexure B to the order granted in default. Annexure B is similar to Annexure 'B' also attached to the respondent's declaration in the main action. In terms of Annexure B, the respondent was awarded a total of thirty five (35) movable assets including two motor vehicles, Honda Oddysey and Honda Prelude, water bowzer and a trailer. The applicant was awarded a total of forty (40) movable assets including a Mazda B2500 single cab truck and business interests in the Mabvuku Family Clinic and Maternity Home.

In respect of immovable property, the respondent was awarded two immovable properties, namely, the matrimonial home, No.28 Churchill Avenue, Malborough, Harare and a four roomed house in Chipatiko Village in rural Domboshava. The respondent was also awarded business interests in the company known as Germini Medicines Supplies (Pvt) Ltd trading as Pharm Chem. The applicant was awarded also two immovable properties, being No.1034 Shambare Street, Old Mabvuku, Harare and a seven (7) roomed house with several out-buildings in Zimbwa Village in rural Domboshava….,.

I now turn to the merits of the application.

THE LAW

In terms of Order 9 Rule 63 of the High Court Rules, 1971 (hereinafter the Rules) this court may set aside judgment given in default. The relevant provision, Rule 63(2), is couched as follows;

“63 Court may set aside judgment given in default

1….,.

2. If the court is satisfied, on application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”…,.

In terms of the rules, therefore, the applicant has to prove, on a balance of probability, that there is good and sufficient cause to rescind the Divorce Order granted in default.

Counsel for the applicant, in argument, also placed reliance in section 9 of the Matrimonial Causes Act [Chapter 5:13] which provides as follows;

“9 Variation, etc of orders

Without prejudice to the Maintenance Act [Cap 5:05] an appropriate court may, on good cause shown, vary suspend or rescind an order made in terms of section 7 and subsections (2), (3) and (4) of that section shall apply mutatis mutandis, in respect of any such variation, suspension or rescission.”…,.

The above cited provision became more relevant in view of the applicant's position that she has no qualms with parts of the order granted in default by CHITAKUNYE J in relation to decree of divorce in terms of section 5 of the Matrimonial Causes Act [Chapter 5:13] and the order in relation to custody of the two minor children.

Counsel for the applicant argued that the rescission sought is a partial rescission of the order granted in default in relation to the division of the matrimonial estate in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

In my view, this argument can only be relevant if this court is satisfied that there is good and sufficient cause or that good cause has been shown justifying the rescission of the default judgment.

It is now trite law that the court, in setting aside or rescinding a default judgment, considers the following factors;

(i) The explanation for the default. In this regard, the court considers the reasonableness and the acceptability of the explanation given.

(ii) The bona fides of the applicant or application.

(iii) The bona fides of the applicant's defence on the merits as well as prospects of success or the prima facie strength of the applicant's case.

See; Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (1) ZLR 368 (S); Beitbridge Rural District Council v Russel Construction Co (Pvt) Ltd 1998 (2) ZLR 190 (S)…,.

I now proceed to apply these principles to the facts of this case.

1. Applicant's explanation for the default

It is common cause that the applicant was served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b) of the Rules and that after the dies induciae the respondent proceeded to seek a final order in terms of Order 35 Rule 272(2)(b) of the Rules. It is common cause that the applicant, even after being served with the notice of set down in terms of Rule 272(2)(b), did not attend court. The probability is that even if the applicant had attended court on the date of set down the applicant could still not be heard on the merits without seeking the upliftment of the bar in terms of the Rules.

I have to consider whether there is a reasonable and acceptable explanation given by the applicant for failure to comply with Order 35 Rule 272(1)(b), and, to some extent, Rule 272(2)(b) of the Rules.

I am not persuaded by counsel for the applicant's belated submission that I should grant the order sought on the basis of Order 49 Rule 449 which relates to correction, variation and rescission of judgments and orders. The order granted by CHITAKUNYE J, on 19 May 2011, was not issued in error but in terms of Order 35 Rule 272(2)(b).

The explanation given for the default by the applicant is not clear in her founding affidavit. In fact, in her founding affidavit, the applicant did not see it fit and proper to give any reason as to why the order granted by CHITAKUNYE J should be rescinded. The applicant had only this to say:

“The exact details of the order I seek will be expressed in the affidavit that has been deposed to by my attorney, Bruce Mujeyi. I incorporate the contents of his affidavit as is specifically traversed herein.”

The applicant, in her wisdom, decided to shy away from proffering any explanation to her default in her founding affidavit which is crucial to her case. In other words, the applicant gave no explanation as to what she did about this case after she instructed her attorneys to enter an appearance to defend on 25 February 2011 until four months later, on 13 June 2011, when she filed an application for rescission of the order granted in default. It is not clear whether she was, during that period, in Zimbabwe or not. She does not explain again if she communicated with her attorneys, and, if so, how she did that. The applicant does not explain if indeed she gave her attorneys any instructions to file a plea to the plaintiff's claim. All these questions are not answered in Mr Mujeyi's supporting affidavit which the applicant seeks to rely upon. It is therefore clear to my mind that the applicant had not, in her founding affidavit, given any explanation for the default save to leave matters in the hands of her erstwhile legal practitioners.

It may be worthy to consider what explanation is given by the applicant's erstwhile legal practitioners Bruce Mujeyi (hereafter Mujeyi). It is pertinent to note that after deposing to the supporting affidavit on 10 June 2011 and filing this application on 13 June 2011, Bruce Mujeyi renounced agency barely two days later, on 15 June 2011.

The thrust of Bruce Mujeyi's supporting affidavit is to try and explain the failure by the applicant, in particular Mujeyi himself, to file a plea after being served with the notice to plead and intention to bar in terms of Order 35 Rule 272(1)(b). Mujeyi's explanation is that after he entered an appearance to defend, on 25 February 2011, he left the country. He does not explain as to when he left the country or where he went or for how long he was out of the country. There is no explanation as to what instructions he left in relation to the applicant's file at his law firm and with whom.

Was it prudent for Bruce Mujeyi to simply enter an appearance to defend and leave the country for an unspecified period without ensuring that other legal practitioners in his firm would attend to his matters in his absence?

That conduct, in my view, is not only unreasonable but unacceptable.

It is not clear as to whether Bruce Mujeyi had been given instructions or taken instructions to file the applicant's plea. All he says is that the notice to plead and intention to bar was served when he was out of the country. Again, it is worthwhile to quote his own words:

“The notice to plead and intention to bar was dealt with in a matter (sic) that decries sheer incompetence by a member of my staff. The document was simply filed away in the file instead of being referred to one of the several legal practitioners in my firm who were there during the time I was away. The matter was subsequently heard as an unopposed matter and judgment was granted on 17 May 2011.”…,.

As already said, there is no explanation as to when Bruce Mujeyi left the country and for how long he was away. In fact, the respondent challenged this averment and said that on the day he served the notice to plead and intention to bar on Bruce Mujeyi's legal firm, Mujeyi was present at the firm. In fact, the respondent said soon after effecting service of this notice to plead he was called by Bruce Mujeyi who was in his office, and, as persons known to each other, they had a discussion on social issues unrelated to the matter.

I am constrained to find that the respondent would lie on this aspect and fabricate such evidence.

In any case, this has not been refuted by Bruce Mujeyi who has not offered any proof to show that he was indeed out of the country, for example, through his passport. He said he only became aware of the default judgment when an unnamed legal practitioner in his firm sent him an e-mail indicating that the applicant was being evicted from the matrimonial house on account of the default judgment.

It is again unclear if by then the applicant was in Zimbabwe. No proof of such an e-mail is provided. It is also important to note that there is no supporting affidavit from the receptionist in Mujeyi's legal firm who received the notice to plead and the notice for set down to confirm the averments by Mujeyi on what happened when Mujeyi was ostensibly out of the country. No explanation for that omission is made. The receptionist would indeed confirm why she would act in the manner alleged and indeed take the blame if it is true that it is what she did.

The explanation given by Mujeyi is that the applicant was not at fault for the default as she was not alerted to the fact that the respondent had filed a notice to plead and intention to bar, and, subsequently a notice of set down. He further avers that the level of delinquency exhibited by his law firm in the matter is deplorable, which blame he shifts to the receptionist, and that this should not be held against the applicant who is not to blame for this fiasco.

I am not persuaded by this argument not only because it had not been shown that what Mujeyi says is indeed correct but also on account of the fact that our courts have long pronounced, loudly and clearly, to all and sundry that where legal practitioners fail to take appropriate action to protect their clients' interest such conduct besides being treated as wilful non-compliance with the rules would be treated as wilful disdain by the clients themselves.

It is not good enough for the applicant to shift the blame to Mujeyi's law firm and for Mujeyi to run away from the blame by shifting blame to an unnamed secretary in the law firm and by renouncing agency in this matter. Mujeyi was the legal representative of the applicant whom the applicant chose herself. I therefore find no reason why, in relation to failure to comply with Rule 271(1)(b) of the Rules, by not entering a plea, the applicant should be absolved from the normal consequences of such a relationship and choice, no matter what the circumstances of the failure are.

The wise words by McNALLY JA in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S)…, apply with equal force in this case;

“The time has come to remind the legal profession of the old adage, vingilantibus non dormientbus jura subvenient - roughly translated, the law will help the vigilant but not the sluggard.”

It is therefore my finding that the applicant has dismally failed to proffer a reasonable and acceptable explanation for her default to enter a plea.

2. The bona fides of the applicant

The applicant's sincerity in the matter is very doubtful. As already explained, besides instructing attorney to file or enter an appearance to defend the applicant does not explain if she took any further action in this matter like instructing her attorney to file a plea or to make any follow ups on such a matter of importance to her. After filing the application for rescission of judgment, in June 2011, and after her erstwhile legal practitioner renounced agency, the applicant simply did nothing in ensuring that the matter is prosecuted. In fact, it is common cause that it is the respondent who had to push for the matter to be heard by setting the matter down. The applicant just filed an application for rescission and abandoned as it were. Even after the matter had been set down, on 1 November 2011, it had to be postponed on account of the applicant who engaged her current legal practitioner of record who was not available. It is therefore doubtful if this application is made in good faith. This point is more pertinent when one considers the next aspect which relates to the prima facie strength of the applicant's case.

3. Prospects of success as prima facie strength of this case

The applicant, in paragraph 4 of her founding affidavit, objects to the award made in respect of the matrimonial house, No.28 Churchill Drive, Malborough, Harare and the family businesses, that is, the clinic in Mabvuku and the medical supply companies. The applicant avers that this property was jointly acquired by the parties and the respondent cannot unilaterally determine how the property should be shared. The applicant's view is that the court should revisit this issue so as to take into account her own contribution to the matrimonial estate.

The applicant also indicates that she would want the issue of maintenance of the two minor children to be revisited without explaining in what regard.

In my view, the applicant does not explain why the order granted in default should be deemed unfair. The applicant does not explain how the matrimonial estate should have been distributed.

The complaint raised by the applicant, in relation to the maintenance order granted by the Magistrates Court being incorporated in the Divorce Order is difficult to appreciate as the applicant does not explain why she did not appeal against the maintenance order at the time it was granted or seek an upward variation of the order. The applicant does also not explain at all why she has not enforced her rights in terms of the Maintenance Act [Chapter 5:09] if the respondent is not complying with the maintenance order. I am surprised that Bruce Mujeyi, in his supporting affidavit, would also raise this issue of non-compliance with the maintenance order by the respondent! One would expect him to be better informed on how to enforce compliance with such an order rather than to seek a rescission of the relevant order.

I have already alluded to how the matrimonial estate was distributed as per Annexure B to the Divorce Order. The applicant would have no qualms with the decree of divorce, the custody of minor children, and distribution of most of the movable property. The division of the matrimonial estate, at divorce, is in accordance with section 7 of the Matrimonial Causes Act [Chapter 5:13].

The factors which the court has to consider are listed on section 7(4)(a)–(g) of the Matrimonial Causes Act [Chapter 5:13]. The only factor the applicant has alluded to is her alleged contribution to the matrimonial estate. The applicant does not explain how the order granted did not take this into account in view of what was awarded to both parties. The applicant only made a bold and unsubstantiated assertion that the division of the matrimonial estate was unfair and unjust without explaining how with specific reference to Annexure B. These omissions in the applicant's founding affidavit are fatal as such averments are crucial as her application is premised within the four corners of the founding affidavit.

There is therefore nothing in the applicant's founding affidavit to show that the matrimonial estate was not justly and equitably shared taking into account the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13].

All in all, the applicant did not address her mind to the fairness or otherwise of the distribution of the matrimonial estate as per Annexure B. In my view, both the movable and immovable property was shared in almost equal proportions between the parties. The applicant admits that the marriage has irretrievably broken down and that the decree of divorce is in order.

The applicant accepts that it was proper for her to be awarded custody of the two minor children.

The issue pertaining to the current maintenance order can be dealt in the context of other domestic remedies available.

The applicant raises no issue with the respondent's rights to reasonable access to the minor children.

No wonder why counsel for the applicant conceded that he was now seeking a partial rescission of the order contrary to the order initially prayed for. I am therefore of the view that the applicant has not shown, on a balance of probability, any prospects that the matrimonial estate may be distributed in a different manner if the default judgment is rescinded.

The applicant did not even explain why it would be unfair to award the matrimonial house to the respondent who is residing in Zimbabwe while she is resident in the United Kingdom with the children.

Lastly, counsel for the applicant raised the issue that I should rescind the Divorce Order granted in default on account of the fact that there was no personal service effected upon the applicant in terms of Rule 272(2)(b) of the Rules in relation to the notice of set down. Reference was made to the case of Le Roux v Le Roux 1957 R & N 831 (SR)…, in which BEADLE J…, discusses the effect of the non-compliance with the provision of a similar provision to Rule 272(2)(b) of the Rules. See also Butler v Butler 1951 SR 122.

It is considered view that Rule 272(2)(b) of the rules requires that the notice of set down shall be served upon the defendant and that the court can only proceed if it is satisfied that personal notice of the defendant has been drawn to the fact that the matter had been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.

In casu, default judgment was granted on account of non–compliance with Rule 272(1)(b) – failure to enter a plea. In addition to that the respondent complied with Rule 272(2)(b) by serving notice of set down on the applicant's legal practitioners of record.

It would be absurd, in my view, where, like in this case, the applicant was represented and had given her address of service as that of her legal practitioners to expect the respondent to serve the notice of set down upon both the applicant and also on her legal practitioners of record.

In casu the applicant, who is resident in the United Kingdom, had given an address of service in Zimbabwe which is of her legal practitioners of record. One may therefore ask where in the United Kingdom would the respondent have been expected to serve the notice of set down and would such notice be proper when it is not given at the applicant's address of service. I am satisfied that the court which granted the default judgment was properly satisfied that the notice of set down had been drawn to the personal notice of the applicant as it was served upon her legal practitioners of record at her instance. The manner in which Rule 272(2)(b) is drafted, in my view, is different from Rule 39(1) of the Rules.

I am therefore satisfied that the judgment was granted in compliance with Rule 272(2)(b) of the Rules.

It is my finding that the applicant has failed to establish good and sufficient cause to warrant the rescission of this default judgment granted on 19 May 2011.

Accordingly, the application is dismissed with costs.

The applicant seeks rescission of an order of this court granted against him in favour of the first respondent.

The order was granted on 10 March 2011 under case number HC205/11. Under case number 205/11 the first respondent instituted proceedings through summons against the applicant seeking the transfer of Stand Number 70250/2 New Lobengula to herself from the applicant. The applicant entered an appearance to defend, but did so outside the prescribed time specified in the High Court Rules, 1971. The first respondent then proceeded to make an application for default judgment as the applicant had been barred automatically, which application was granted on 10 March 2011.

Pursuant to the above, the applicant then made this application for rescission of judgment. The first respondent is opposed to the application.

This application is made in terms of Rule 63 of the High Court Rules.

The applicant has to show, before the indulgence of rescission is granted, that he has sufficient cause for the indulgence. The applicant has not shown any good and sufficient cause for the court to rescind the judgment. The reason that he proffers for not having filed his appearance to defend on time is that the respondent's lawyers knew that the matter was defended, and, as such, they should have informed his lawyers that he should file the plea.

The applicant cannot expect for the respondent to litigate and defend on his behalf. His lawyers are the ones who were supposed to file his defence and they failed to do so. In the circumstances, the applicant does not have an acceptable reasonable explanation. In any event, applicant's legal practitioners were advised of the late filing of the appearance to defend and they ignored this. The letter reads:

“The above matter refers.

Please take note that your client's appearance to defend was filed out of time, and, as such, your clients are barred.

Further, what exactly are your client's defence when they know that they sold the said property to the plaintiff, we wonder!!

We advise that we are proceeding to set this matter down as your clients are barred.

Be well advised….,.”

This letter was written to the applicant's erstwhile legal practitioners on 16 February 2011. The applicant's legal practitioners did nothing until the 10^th of March 2011 when the order under HC205/11 was granted. The applicant's legal practitioners should have known the next step to take.

The letter was delivered to the address provided in the appearance to defend.

The applicant does not say exactly how his erstwhile legal practitioner let him down. In fact, he tries to defend him and blame the respondent's legal practitioners. I am, therefore, unable to assess his erstwhile legal practitioner's moral blameworthiness. He has not even sought an affidavit from the erstwhile legal practitioner explaining why he did not regularize the appearance to defendant by seeking condonation – Independence Mining (Pvt) Ltd v Soko SC188-93; Cobra and the Wildcat (Pvt) Ltd v Tundu Distributors (Pvt) Ltd 1990 (1) ZLR 133 (H); and Challenge Auto (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd 2003 (1) ZLR 17 (H).

The applicant was informed of the non-compliance with the Rules in the abovementioned letter. About a month later he had not done anything to seek the court's indulgence to condone the non-timeous filing of the appearance to defend. His explanation, as alluded to above, is not reasonable.

His case, on the merits, is not convincing.

He was sued together with his maternal aunt Sepelong Nyathi. They were both represented by the same legal practitioner when they attempted to file the appearance to defend. Yet, in this application, he states that the said aunt committed a fraud by forging his signature and other contractual documents. The respondent bought the disputed property and paid for it. Assuming what he is saying now is part of the instructions given to his erstwhile legal practitioner I wonder how the latter would have proceeded to represent both of them.

The explanation for the dilatoriness lacks bona fides. The applicant's case is weak on the merits. The convenience of the court demands that there be finality in this matter. The case of Ndebele v Ncube 1992 (1) ZLR 288 (SC) is instructive on the penalization of a party for the negligence of lawyers and a failure to follow or to comply with court rules. At 290C-E, McNALLY JA has this to say –

“It is a policy of law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays, either by the individual or his lawyers, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt – roughly translated; the law will help the vigilant but not the sluggard.”

See also Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; and V. Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H).

In casu, this application is devoid of merit and is accordingly dismissed with costs.

The basic requirements for the application of rescission of judgment to succeed were laid down way back sixty years ago.,. In that case BRINK J had occasion to remark that:

"I am of the opinion that an applicant who claims relief under Rule 43 should comply with the following:

(a) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance.

(b) His explanation must be bona fide and not made with the intention of merely delaying the plaintiff's claim.

(c) He must show that he has a bona fide defence to the plaintiff's claim. It is sufficient if he makes a prima facie defence in the sense of setting out averments which if established at trial would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probalities are actually in his favour."

On 1 June 2009 this court granted an order that case numbers HC2190/09 and HC2224/09 be heard urgently and simultaneously, consequent to an application that the matters be heard on an urgent basis and simultaneously. For ease of reference, I will refer to the parties as they are cited herein in both matters.

The brief background to the matter is that on 13 May 2009, this court, and on the unopposed roll, granted an order(“the order”) directing that the applicants and all persons acting on their authority shall forthwith vacate Homefield Farm or any portion of the farm and that they pay the respondents' costs. On 14 May 2009 the applicants filed an application for the rescission of that judgment. On 15 May 2009 the Deputy Sheriff attempted to serve the order. A disagreement arose between the applicants on one side and the first and second respondents and the Deputy Sheriff on the other side. It degenerated into an assault on the Deputy Sheriff and the first respondent.

The court order was finally served on 18 May 2009.

On 19 May 2009 the applicants filed an application for stay of execution of the order pending the determination of the application for rescission of judgment. On 20 May 2009 the respondents filed an application for contempt of court for failure to abide by the order served on them on 18 May 2009 by the applicants.

On 4 June 2009, the parties entered a gentlemen's agreement whereby the respondents undertook not to enforce the order pending the determination of the matters before me.

At the hearing of the matters, I decided to deal with case number HC2224/09 which is the application for rescission of judgment.

In this matter, the respondents raised a point in limine to the effect that the applicants cannot be heard as they were in contempt of the order referred to above. My reasoning was that if I upheld the point in limine, then the application will be dismissed at that stage. If I dismissed the point in limine, I would then proceed to determine the issue of rescission of judgment. It was also my reasoning that the arguments advanced in respect of the point in limine in HC2224/09 would assist in disposing of case number HC2190/09.

The point was taken, by the respondents, that the applicants should not be heard as they were in contempt of court. The order of 13 May 2009 directed that the applicants vacate the farm forthwith. The applicants remain in occupation.

The applicants deny that they are in contempt of court and advance, in the main, three reasons;

(i) Firstly, they contend that prior to 18 May 2009, the order had not been served on them personally. Upon being served with the order, they applied, on a certificate of urgency, for stay of execution.

(ii) Secondly, that the applicants immediately filed an application for rescission of judgment. The application was filed within twenty-four hours of the judgment being granted.

(iii) Thirdly, that the order was vague by its use of the word “forthwith”.

(iv) Fourthly, that the applicants could not be in contempt of court after the “gentlemen's agreement” entered into on 4 June 2009....,.

The applicants submitted that they were not in contempt of the order as they immediately filed an application for rescission of judgment. It was further argued that the Rules give the defendant a window period of one month to set aside a judgment granted in default and that the application for rescission suspended the order until the determination of the application.

This is a novel argument.

It is a settled position in our law that an application for rescission does not suspend an order of court. If that was the position, the procedure of an application for stay of execution would not have been necessary. Instead, there would have been a provision for an application for execution pending the determination of the application for rescission of judgment. We do not have such a procedure as an application for rescission does not suspend the order. The applicants must have been aware of this position and this explains why they proceeded to file an application for stay of execution on 19 May 2009.

The first and second respondents rely on a written Agreement of Sale which was allegedly entered into by the parties. The applicants deny that an Agreement of Sale was concluded.

In the declaration filed under case number HC456/07, the averment is made that the applicants were represented by the third respondent. There is no averment that the applicants signed the Agreement.

In an application of this nature, all an applicant has to show is that he has a defence to the claim. The court cannot, at this stage, subject that defence to close scrutiny as long as prima facie there appears, to the court, sufficient reason for allowing the defendant to lay before the court the facts he thinks necessary to meet the plaintiff's claim.

In this matter, there is no signed Agreement between the parties, the Agreement having been signed by the Purchasers and the estate agent. The applicants deny that they concluded an agreement for the sale of the Stand, and from the inception of the dispute they have adopted this stance. They have shown a prima facie defence and should be given an opportunity to place facts before the court on which their defence is reliant.

I will therefore issue an order in the following terms:

1. The automatic bar operating against the applicants as a result of their not having entered appearance to defend the summons issued against them in case number HC2383/08 be and is hereby uplifted.

2. The first and second respondents be and are hereby ordered to arrange service of the summons referred to in para 1 above at their correct addresses, or upon their legal practitioners of record.

This is an application for rescission of a default judgment that was granted against the deceased, Andrew Benjamin Woodburn Charumbira, who was the applicant's husband.

In case number HC2534/06, the deceased instituted proceedings against the first respondent for the transfer of Stand 776 Fort Victoria Township of Victoria District. The matter was set down for 16 January 2008 when it was dismissed for want of appearance on the part of the deceased.

In her founding affidavit, the applicant states that the deceased died on 17 December 2006. The applicant was subsequently appointed executor of the estate on a date not specified. However, annexure “A” to the founding affidavit purports that an edict meeting was held on 18 December 2006. She advertised the estate in the Government Gazette of 15 June 2007 as well as in The Masvingo Mirror of 28 August 2007. She gave her address as 30 Elliot, Rhodene, Masvingo.

No process in the name of the deceased was ever brought to her attention. Thus, she contends that there was no wilful default.

On the merits, she contends that there is a good claim against the first respondent as he conducted a double sale. It is also her contention that since the deceased's claim is one of real rights, it is transmissible to his estate.

The second issue raised by counsel for the first respondent was that the applicant had not demonstrated why she believes she has prospects if rescission is granted.

This is because she did not show that there is a prima facie claim against the first respondent apart from making a bald averment that the deceased purchased the disputed property from the first respondent.

It is further contended that the applicant must show that the claim against the respondent has prospects of success. The issue of a double sale was never raised by the applicant's late husband when he instituted the application.

It is also contended that the applicant's late husband failed to provide proof that he paid the full purchase price for the property.

As regards an application for rescission of judgment, it is a requirement that an applicant has to establish the following –

(a) An explanation for the default.

(b) The bona fides of the application for default.

(c) The bona fides of the applicant's case on the merits.

In this respect, see the cases of Roland & Another v McDonnell 1986 (2) ZLR 216 (S) and Washaya v Washaya 1989 (2) ZLR 195.

Regarding the bona fides of an applicant's case on the merits, McNALLY JA had this to say in the case of Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (SC)..., -

“Before I go further, I think it is necessary to say something about the kind of allegations one may expect from an applicant for rescission of judgment. The effect of the cases is summed at p371 of the edition of Herbstein and van Winsen: The Civil Practice of the Superior Courts in South Africa as follows –

'the applicant must show that he has a bona fide defence to the plaintiff's claim, it being sufficient if he sets out averments which, if established at the trial, would entitle him to the relief asked for, he need not deal with the merits of the case or produce evidence that the probabilities are actually in his favour.'”

Now, in the present matter, the applicant claims that the deceased was first to purchase the house in question, and that the first respondent subsequently sold it to another.

Although not stated, it is also common cause that the applicant is in occupation of the house.

It cannot be said that on the face of it the applicant has no prospects of success in her claim.

I note that the first respondent's defence is that he cancelled the Agreement of Sale because he did not receive the purchase price in full. Suffice to further note that the Agreement of Sale was subsequently amended in respect of the purchase price and vacant possession. That is why the deceased was able to assume occupation. In his notice of opposition, the first respondent does not explain how the Agreement was cancelled.

In the result, the application is granted in terms of the draft order save that costs shall be on the ordinary scale.

This is an application for a rescission of judgment.

The applicant is the Executrix Dative of the Estate Late Clement Ndlovu, and is also the surviving spouse. During his lifetime, Clement Ndoluvu entered into an Agreement of Sale of an immovable property with the first respondent on the 26^th of July 2001. One of the terms of the Agreement was that the first respondent was to pay an initial deposit and thereafter pay the first instalment on or before the 30^th of August 2001. She, however, failed to pay the other instalments for three months.

On the 22^nd of October 2001, Clement Ndlovu gave the first respondent a grace period up to 30 November 2001 to remedy the breach, at the same time advising her that in the event of her failure then the Agreement would be cancelled.

Unknown to the applicant, the first respondent paid $205,000=, which was twelve months after the first breach.

In October 2002, the first respondent mounted a legal action against the late Clement Ndlovu, which was opposed. However, the first respondent did nothing from June 2003 to April 2006. Clement Ndlovu passed away in August 2006. After his death, the first respondent filed her Heads of Argument.

The question then is, was the late Clement Ndlovu in wilful default.

It is the applicant's argument that he was not, as he was under the impression that the first respondent had abandoned her claim. It is a fact that the first respondent did nothing until after Clement Ndlovu's death.

In order for an application for a rescission of a judgment to succeed, it is trite that the applicant must show that he was not in wilful default and that he had a bona fide defence.

It is a fact that the late Clement Ndlovu genuinely believed that the first respondent had abandoned her claim as she did not pursue it for so many years, but, only to do so immediately after his death.

As to whether or not the applicant had a genuine defence, one has to look at the first respondent's action right from the beginning of this matter.

Upon realizing that the first respondent had breached the contract, he advised her of the breach and the consequences thereof. The first respondent did not heed this advice and only paid after twelve months.

It is clear, therefore, that the late Clement Ndlovu has always wanted to defend this matter which therefore shows his bona fides.

In my opinion, the first respondent's argument is baseless and cannot be believed. She failed to prosecute her claim timeously, only to do so immediately after the late Clement Ndlovu's death, and she had, after all, breached the contract as she had defaulted in her payments.

In light of the above, the application succeeds and the following order is made:-

1. The Judgment which was granted in the first respondent's favour under Case Number HC 2631/02 be and is hereby rescinded.

2. Applicants be and are hereby authorised to defend the said action.

3. Applicants shall file their Heads of Argument in the abovementioned action within fourteen days of this Order.

This is an application for rescission of judgment.

The first respondent has raised a point in limine that this application is not properly before this court in that it was not heard and determined within thirty (30) days of the default judgment being granted.

The first respondent is saying that the application should have been heard and determined before 14 October 2007. Failing which, the applicants should have applied for condonation. In other words, the point raised by the first respondent is that the application for rescission has been made outside the thirty days period set under Order 9 Rule 63(1), High Court Rules, 1971.

The first respondent argues that the interpretation and impact of Order 9 Rule 63(1) was put to rest by the Supreme Court in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S) and Highline Motor Spares (1933) (Pvt) Ltd & Ors v ZIMBANK Corporation Ltd 2002 (1) ZLR 514 (S) – see also Theunissen v Payne 1940 TPD 680...,.

The applicants' case is that the first respondent's argument is not in tandem with the Rules of this court, which are peremptory and ought to be complied with by the applicants.

It is argued that Rule 226(1) requires that all applications shall, for whatever purpose, be made -

(a) As a court application; or

(b) As a Chamber application.

In other words, all applications have to comply with Order 32.

The pith and marrow of the argument are the following.

First, there is no way an application of this nature can be filed, heard, and determined within a thirty (30) day period. The periods referred to..., as stipulated in Order 32, exceed thirty (30) days.

Second, in terms of the Rules and the Bulawayo High Court Practice Note 1 of 2003, the applicant does not set down the matter. Such set down is the province of the Deputy Registrar and the judge allocated the application.

The delay in set down beyond the thirty (30) day period is beyond the applicants' control.

In casu, the application was filed on time, i.e. the first working day after the granting of the default judgment. The delay in the set down of the matter cannot be attributed to the applicants, as such why should they apply to be condoned?

This is an appealing argument in terms of logic.

But, the Supreme Court has decided to follow the decision in the Theunissen v Payne 1940 TPD 680 case, that the making of the application is when the application is set down and not merely when it is filed – see Sibanda v Ntini 2002 (1) ZLR 264 (S)..., and Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S) case. This reasoning of the Supreme Court may seem unfair to the litigants who file their applications within thirty days but the same are not set down by the judge, or the Registrar, within thirty days.

But the law is now settled, if the application for rescission is not heard and determined within thirty days, the applicant must first seek an indulgence, or condonation, before the application for rescission is heard.

This court is bound by the precedents set by the Supreme Court. To argue against such Supreme Court decisions is the domain of academics and not this court.

After hearing both counsel, I dismissed the application with costs and indicated that my written reasons would follow in due course. These are they.

On 15 January 2009, the first and second respondents, who were applicants in that matter, sought and were granted an order by default against the present applicant jointly with the present third, fourth and fifth respondents.

In essence, the order was to the effect that the notice gazetted by the Minister, on 26 September 2008, purporting to acquire the piece of land under consideration be declared unlawful and invalid to the extent that such action was in breach of the terms of the Certificate of No Present Interest issued in favour of the first respondent on 4 September 2008 pursuant to the provisions of section 47 of the Land Acquisition Act [Chapter 20:11].

Consequently, the executor i.e. Jan David Gutherless, was granted leave to proceed with the transfer of the said property in favour of Donald Mazwi Sibindi, the second respondent herein, in terms of the Agreement of Sale entered into by the parties on 19 September 2008.

The Registrar of Deeds was authorized and directed to register the Deed of Transfer in favour of the second respondent.

Castro Ndlovu, together with all those who claimed through him, were ordered to vacate the property immediately so as to give vacant possession to the executor who, in turn, gave vacant possession to Donald Mazwi Sibindi, as stipulated in the Agreement of 19 September 2008.

In the event that Castro Ndlovu, and all those who derived claims through him, failing to vacate the said property, the Deputy Sheriff of this Court was authorized to evict them from the property.

He claimed to have proffered a reasonable explanation for failing to defend the matter timeously, and believed that he had a good defence to the respondent's claim. In any event, the respondent would suffer no prejudice if execution is stayed pending the application for rescission.

It was his view that the scales of justice were heavily tilted in his favour.

The respondent contended that the applicant's explanation for failure to defend the matter was unreasonable and unacceptable.

Castro Ndlovu was personally served with the court application on 17 December 2008. He is a well-educated and sophisticated businessman who decided to ignore court process. His reason for doing so was that after he had received the court application, he went to consult a lands officer who, according to him, advised him to ignore the court process.

No affidavit was obtained from such land officer to support the applicant's allegation.

The applicant's explanation is grossly unreasonable.

A reasonable person of his status is not expected to believe that a lands officer's authority supercedes that of a court of law. An ordinary Zimbabwean who receives court process would either seek legal advice from a legal practitioner, or would approach the court to find out what one is expected to do. Yet, the applicant, who is a sophisticated businessman, chose to consult a lands officer..,.

It is trite law that the factors which are taken into account in deciding whether default judgment should be rescinded are –

(a) The reasonableness of the applicant's explanation for the default;

(b) The bona fides of the application to rescind the judgment; and

(c) The bona fides of the defence on the merits of the case and whether that defence carried some prospect of success – Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86; Roland & Anor v McDonnell 1986 (2) ZLR 216 (S)...,.; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)...,; Stockil v Griffiths 1992 (1) ZLR 172 (S)...,.; Mdokiwa v Shoniwa 1992 (1) ZLR 269 (S) and Ndebele v Ncube 1992 (1) ZLR 288 (S).

I propose to consider these factors in turn.

(a)  The reasonableness of the applicant's explanation for the default

The applicant's explanation is that she initiated the application and thereafter left for her communal home to plough. She was represented by one Alpheus Ncube, who she thought was an estate agent. Alpheus Ncube referred her to one Elder Sam, who was said to be a lawyer.

Alpheus Ncube was not an estate agent, and Elder Sam was not a legal practitioner.

Elder Sam consulted with her, and filed a court application under HC2612/07 on her behalf.

She trusted Elder Sam when he said he would do everything on her behalf thereafter, and she proceeded to her communal home to do the ploughing...,. She was content with Elder Sam's ability to do her legal work after seeing that he had managed to file the said court application.

In the circumstances, she said it was not by design that she did, initially, file her answering affidavit under HC 2612/07 timeously, nor was it by design that she did not file, right away, a notice of opposition under HC40/08. She was not in Bulawayo, and Elder Sam did not communicate these issues to her. She said that she was ignorant of court practice, and she was under the mistaken belief that Elder Sam was a lawyer, and was in control of the situation. Upon her return from the communal lands she went to see Elder Sam, only to be told more papers needed to be done so that she could sign them.

Her explanation is, briefly, that she had been duped by Alpheus Ncube, and Elder Sam, into believing that the latter is a legal practitioner capable of handling the matter on her behalf.

There is no suggestion that her explanation is false, but, certainly, she was gullible. Her gullibility, bearing in mind she is a rural dweller who trusted the wrong guys, does not make the explanation unreasonable. She should not be condemned for being a victim of deceit.

Her explanation for the default is, therefore, reasonable.

(b) The bona fides of the explanation for rescission

It is not clear which is the correct purchase price. There are two prices given, viz. $600 million and $300 million. It does seem to me that one of the prices was given to cheat the Zimbabwe Revenue Authority of the capital gains tax. This is what I glean from the papers.

With such unexplained disparity of the purchase price, it is difficult to determine the merits of the cancellation of the Agreement of Sale.

(c) The bona fides of the defence on the merits

I have already alluded to the problem on the purchase price. There is, it seems, the correct price in the minds of the parties, and another price for tax evasion. The applicant and the estate agent seem to know of the price of $600 million. The conclusion, and execution, of the Agreement is characterized by misrepresentations to the applicant...,. She was deceived by a person who purported to be an estate agent and another who purported to be a lawyer...,. The impact of these issues have to be examined vis-a-vis the legality of the contract.

In the circumstances, the applicant has made out a case for the order sought.

Accordingly, it is ordered as follows:-

(a) That the order of this court granted on 6 February 2008, under case number HC40-08 be and is hereby rescinded.

(b) That the second respondent be and is hereby interdicted from allowing the transfer of Stand Number 4656 Nketa 7, Bulawayo, registered under Deed of Transfer..., 611/08, to anyone else, pending the outcome of this matter.  

This is an application for rescission of judgment.

The default judgment was entered on 26 July 2007 in favour of the respondent. The applicant states that he became aware of the judgment on 31 July 2007. This application was filed on 16 August 2007. By 30 August 2007 the application had not been set down by the applicant. In fact, over a year and a half later, still, the applicant had not set down the application

Even this set down was at the behest of the respondent.

The respondent's case is that the interpretation and impact of Order 9 Rule 63(1) was put to a rest by the Supreme Court in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S); and Highline Motor Spares (1933) (Pvt) Ltd & Ors v Zimbank Corporation Ltd 2002 (1) ZLR 514 (S). See also Theunissen v Payne 1940 TPD 680..., and Dube & Anor v Zondo & Anor HB28-09.

The law is now settled that if the application for rescission is not heard, and determined, within thirty days, the applicant must seek an indulgence, or condonation, before the rescission is heard.

This court is bound by the precedents set by the Supreme Court. Arguing against such clear decisions of the Supreme Court is the province of academics and not this court.

The respondent has raised a point in limine that the application is not properly before this court in that it has not been heard, and determined, within thirty (30) days of the default judgment being granted.

The respondent is saying that the application should have been heard within thirty days of the date on which the applicant had knowledge of the default judgment, or that an application for condonation of non-compliance with Rule 63(1) has been made and granted. In other words, the point raised by the respondent is that the application for rescission has been made outside the thirty day period set under Order 9 Rule 63(1), High Court Rules, 1971.

In casu, this point in limine was taken as early as December 2007. Over one and a half years later the applicant has not applied for condonation. It is not clear whether this was out of ignorance, arrogance, or negligence.

The third defendant, who was alleged to have bought the vehicle, was served with summons on 24 August 2006, and entered appearance to defend on 29 August 2006. He, thereafter, did not do anything further about the matter.

The plaintiff moved that a default judgment against him be granted in favour of the plaintiff.

This is an application for rescission of judgment.

Before the applicants made their submissions, the respondents, through their legal practitioner..., raised a point in limine, being that the applicants should not be heard on the merits because they failed to comply with Order 9 Rule 63(1) which states -

“63(1) 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 knowledge of the judgment, for the judgment to be set aside.”

That the applicant did not apply for the setting aside of the judgment granted in default within one month admits of no doubt. It is for that fact that the respondents argue that the applicants should not be heard as they have not complied with that Rule.

Counsel for the applicants, while acknowledging that, indeed, the applicants did not file their application for rescission timeously, and did not apply for condonation of the late filing of the same, sought to argue that this court had discretion to hear the application for condonation together with the application on the merits.

Counsel for the respondents has argued that Rule 63 shows that the applicant should make the said application, and have it set down for hearing, and subsequent hearing, within thirty days.

 In Viking Woodwork (Pvt) Ltd v Bluebell Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)..., SANDURA JA stated -

“In terms of Rule 63(1), a defendant against whom default judgment has been granted has a period of one month from the time he becomes aware of the judgment, within which to file an application for the rescission of judgment. If he does not make the application within that period, but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application. This should be done as soon as he realizes that he has not complied with the rule. If he does not seek condonation as soon as possible, he should give an acceptable explanation, not only for the delay in making the application for rescission of the default judgment, but also for the delay in seeking condonation.”

Counsel for the applicants has argued that the interpretation of Rule 63 relates to the filing only, and not to the filing and hearing. This, he further argued by deduction, means that the application can still be entertained at the hearing of the main application.

The question that falls for determination, therefore, is the interpretation of the meaning of Rule 63.

In Sibanda v Ntini 2002 (1) ZLR 264 (S)..., MALABA JA stated -

“It is clear from r63(2) that before considering the question whether or not the application contains a “good and sufficient cause” for it to exercise the wide discretion conferred upon it in favour of the applicant, the court must be satisfied that the application has been made and granted.” (the emphasis is mine).

The learned judge made it clear in that judgment that it is not only the filing which is necessary, but it is the filing, hearing, and granting of the order. This does not only make legal sense, but common sense too, as the applicant's right of audience for the application for rescission to be heard is dependent on the condonation being granted by the court.

The same principle was followed in Highline Motor Spares (Pvt) Ltd and Others (1933) v ZIMBANK Co-operation Ltd 2002 (1) ZLR 514 (S) and Dube v Zondo HB28-09.

The background to this application is that on 11 April 2006 the respondents unlawfully disposed people who were manning the Church of the keys to that Church and barred everyone else out. Following this action, and on 12 April 2006, the applicants made an application for a spoliation order against the respondents in the Magistrates Court (Case No.5450/06). The matter was heard on the same day and a rule nisi issued in favour of the applicants. The return date was 3 May 2006.

The applicant's legal practitioner failed to attend court on the return date resulting in the discharge of the rule nisi. On 5 May 2006, the first respondent issued a default judgment which judgment the applicants are now seeking to be reviewed.

As to the events surrounding the default judgment, Onius Gumbo stated that assuming the applicants erstwhile legal practitioners forgot to, or were not aware of the return date how could the first applicant also forget the date. The first applicant applied for, and obtained, a rule nisi, and was made aware of the return date. The applicants were clearly in default and they had to explain their default.

I agree with the submissions by the respondents counsel that this application is an attempt to circumvent the prescribed process and procedure for seeking rescission of a default judgment in circumstances where the applicants knew that they were out of time. The arguments made in this application could still be made in an application for rescission of the default judgment.

Two issues arise from the manner in which the applicant sought to have the default judgment against it rescinded. It did not file a court application, on notice to the respondents, as provided for in the Rules of this Court. Order 10 Rule 63(1) of the High Court Rules, 1971 specifically provides that a party against whom a judgment has been given in default may apply to have that judgment set aside by filing a court application. It would appear that the Rules of Court do not envisage a situation where and when such relief can be obtained through the filing of a chamber application.

This is an application for rescission of the judgment granted by this court on 13 May 2009 in case number HC6215/08. The matter was argued before me on 3 September 2009.

The brief background to the matter is that the respondents filed a court application for spoliation in case number HC6215/08 on 27 October 2008. This was after the dismissal of an urgent chamber application for the same relief in case number HC4864/08. They proceeded to file another urgent chamber application on 12 November 2008 under case number HC6507/08 seeking the same relief based on fresh acts of spoliation. This case was heard by MUSAKWA J on 19 November 2008 and judgment was handed down on 28 January 2009 dismissing the respondents' application.

The applicants did not file opposing papers in case number HC6125/08.

The matter was set down on the unopposed roll on 6 April 2008 and was postponed to 29 April 2008. The record reflects that on 29 April 2008 Mr. Zhou appeared for the respondents and Mr. Chingore for the applicants. This appears on the motion roll result sheet. The matter was further postponed to 13 May 2008. The result sheet of that date reflects that, again, the parties were represented by the same legal practitioners who appeared on 29 April 2009. It also reflects that the order was granted as amended. The present application was then filed the following day.

The application is made in terms of Order 9 Rule 63. In terms of that Rule, the court may set aside a judgment entered in default if it is satisfied that there is good and sufficient cause to do so. The factors that the court takes into account in defining good and sufficient cause are now settled in our law. They have been discussed and applied in a number of cases in our jurisdiction. See Stochhill v Olivine 1988 (2) ZLR 210.

These factors are –

(i) The reasonableness of the applicant's application for the default.

(ii) The bona fides of the application to rescind the judgment.

(iii) The bona fides of the defence on the merits of the case which carries some prospect of success.

The applicants contend that they were not served with the court application. They got to know about the application when they were served with case number 6507/08 whereby the respondents were seeking, inter alia, amalgamation of that case with case number HC6215/08. This was around 18 November 2008. They further contend that the two matters were consolidated and dealt with by MUSAKWA J.

The respondents contend that the applicants were served with the court application by the Deputy Sheriff in October 2008. When the applicants put this factor in issue before MUSAKWA J they were, again, served with the application through their legal practitioner, Mr. Chingore. They did not file any papers in opposition hence the setting down of the matter on an unopposed roll.

Even if I were to disregard the returns of service by the Deputy Sheriff, the applicants have not disputed that they were served with the court application through their legal practitioner, during or after the hearing before MUSAKWA J.

Further to the above, on 29 April 2009, counsel for the applicants appeared before HUNGWE J in motion court. As is the nature of motion proceedings, one cannot tell from the record what transpired in court. However, what is significant about this fact is that by 29 April 2009 counsel for the respondent was aware that case number HC6215/08 was still alive and had been set down on the unopposed roll due to failure by his clients to file opposing papers. No papers were filed to regularize the default until 13 May 2009 when the default judgment was granted.

From the above account, it is clear that the applicants became aware of the existence of case number 6215/08, and with full knowledge of the service or set down of the matter, and of the risks attendant upon default, freely took a decision to refrain from filing papers in opposition. See Zimbank Banking Corp. v Masendeke 1995 (2) ZLR 400 (S)...,.

In my view, the minefield that confronts a judge when considering an application for rescission of judgment was very succinctly stated by McNALLY JA in Deweras Farm v Zimbabwe Banking Corp. Ltd 1998 (1) ZLR 368..., as follows -

“I respectfully agree with the dicta of INNES J in the oft cited case of Cairns Executors v Gaarn 1912 A.D. 186. In particular his Lordship said –

This is an application for rescission of judgment in which the application was dismissed on the turn....,.   These are the reasons.

The applicant seeks rescission of judgment granted in default on 25 January 2010 under HC7064/08. In his founding affidavit, the applicant avers that he was not in unlawful default because he had punctually attended at Court J where the matter was scheduled to be heard. After waiting for business to resume, to no avail, he left Court J to seek assistance from the Registrar. He was assured that he was in the right court; he had to be patient. He went back to Court J. Later, the same officer approached him to advise that there had been a mix-up as this case was before the JUDGE PRESIDENT in Court N; when he eventually got into Court N business in that Court had concluded. A default judgment had been entered against him in favour of the first respondent.

The first respondent conceded, properly, that the applicant was not in wilful default as there was a mix-up of the courts that day. It says it was also affected by the mix-up.

It further contends, however, that the applicant cannot succeed unless he can show that he had a good defence to the first respondent's claim. The first respondent urged the court that as the applicant's case was very weak it was bound to fail. No purpose will be served by rescinding the default judgment since the applicant will fail anywhere in the main case.

I agree with the contention that where an applicant for rescission is unable to demonstrate that he has a plausible case, or a triable issue, or sufficient cause, he cannot succeed in a rescission of judgment. See Shinga (Pvt) Ltd v Hubert Davies (Pvt) Ltd 1989 ZLR 45 (H). It will be an abuse of process to allow hopeless resistance to just claims the discretion of rescission. Rescission is a step which is within the discretion of a court, which must be exercised judicially. To bend backwards so as to allow hopeless argument is not a judicial exercise of such discretion.

In the present case, it is clear on the papers that the main basis for instituting the application for eviction was that the applicant had not paid his rentals since July 2008. Had this contention been false this could have been easily demonstrated by attaching proof of such payment at the outset of the proceedings. The fact that even in his application for rescission the applicant did not bother to show this proof demonstrates that the claim is not being seriously made.

As for his defence against the first respondent's claim; he claims that the first respondent is not the owner of the house in question so he has no right to evict him. He claims that he has no power of Attorney to act on behalf of the owner of the house, one Dennis Shoko. He denied that he was given the three months' notice to vacate that he would have been entitled to at law in terms of the Rent Regulations.         

The first respondent, in its opposing affidavit, pointed out that the applicant's affidavit is founded on false information.

It pointed out that the applicant has always known that the first respondent was the lawful estate agent of the lessor. The applicant had applied for his tenancy through it, and, as such, had recognized the first respondent as the lawful agent of the owner of the house.

It attached the applicant's application form for full measure.

It also produced a notice to vacate dated 25 July 2008 and received by one O'Connor, the brother to the applicant, on 26^th July 2008. In fact, the applicant stopped paying rent in June 2008, prompting the owner to file for the applicant's eviction, so the first respondent says.

Secondly, the first respondent disputed that Dennis Shoko owned the house. In support of this, it produced title deeds to the premises which showed that, in fact, the true owner of the house is Blessing Bessie Nyatsango.

The applicant had no answer to all these assertions besides stating that he had paid his rentals in advance. He was asked to prove his claims that his rentals were up to date till the day he received summons. He could not.