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Default Judgment re: Rescission of Judgment iro Approach

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO
Ruled By: NDOU J

It is misleading by the applicants to state in their founding affidavit, deposed to by their legal practitioner that the default judgment was granted when the matter was opposed. This is not a candid and comprehensible explanation for the flagrant breach of the rules – Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR ...
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HH17-08 : GODFREY MAFUTA vs MADONDO GUTU MODERN STORES
Ruled By: MAKARAU JP AND MUSAKWA J

A court determining an application for rescission of judgment may rescind or vary the judgment in question and give directions as to the future conduct of the action or application.
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HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS
Ruled By: NDOU J

It is trite that the court would not consider that the application for rescission of judgment should be refused unless if it thought that the applicant's case is hopeless.
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HH17-12 : WOOLCHART PROPERTIES (PVT) LTD AND WOOLBULA PROPERTIES (PVT) LTD vs IDEM TRADING (PVT) LTD t/a EUROTEX AND THE DEPUTY SHERIFFF HARARE N.O
Ruled By: HUNGWE J

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.,. The issue for decision, in my view is whether there was a proper service ...
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HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township, Bindura was ordered together with costs of suit. On 4 ...
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HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

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 ...
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HH66-12 : OTILIAH ZULU vs EZRA ZULU
Ruled By: MAWADZE J

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 ...
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HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms: “It is ordered that:- 1. The defendant's plea be and is hereby struck off. 2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll. 3. Defendant be and is hereby ordered to pay today's costs.” The order was granted ...
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HB09-12 : PRINCE NKOMAZANA vs CONCILIA LUPONDO and BULAWAYO CITY COUNCIL
Ruled By: NDOU J

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 ...
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HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

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 ...
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HH115-09 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANCE RWODZI vs PATRICK STOOKS and P J STOOKS (PVT) LTD
Ruled By: MAKONI J

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 ...
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HH129-09 : DR KIMANI GECAU AND NGINYA MUNGAYI LENNETYE vs MACDONALD NDEREMANI AND MOLINE NDEREMANI AND DOUGLAS NYAUDE AND GRAHAM & DOUGLAS REAL ESTATE (PVT) LTD
Ruled By: GOWOWRA J

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 ...
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HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

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 ...
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HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

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 ...
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HB12-09 : RAMONAH NDLOVU and ESTATE LATE CLEMENT NDLOVU vs SITHABISIWE NDLOVU and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

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 26th of July 2001. One of the terms ...
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HB12-09 : RAMONAH NDLOVU and ESTATE LATE CLEMENT NDLOVU vs SITHABISIWE NDLOVU and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

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 ...
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HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

This is an application for rescission of judgment. The default judgment was obtained by the first respondent against the applicants on 14 September 2007 i.e. a Friday. On the next available working day i.e. Monday 17 September 2007, this application for rescission of judgment was filed.
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HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

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, ...
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HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO
Ruled By: KAMOCHA J

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, ...
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HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO
Ruled By: KAMOCHA J

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 ...
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HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.]
Ruled By: NDOU J

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 ...
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HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED
Ruled By: NDOU J

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 ...
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HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED
Ruled By: NDOU J

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 ...
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HB74-09 : PATRICK SIKHOSANA vs MTHANDAZO DUBE and SIBANGANI NCUBE and VUSA DUBE
Ruled By: KAMOCHA J

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. I accede to ...
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HB121-09 : PASTOR JAMESON MOYO and REVEREND DWIGHT L. BALTELL and REVEREND DARREL D LEE and ANOTHER vs REVEREND RICHARD JOHN SIBANDA and THE APOSTOLIC FAITH MISSION
Ruled By: CHEDA J

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 ...
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HB121-09 : PASTOR JAMESON MOYO and REVEREND DWIGHT L. BALTELL and REVEREND DARREL D LEE and ANOTHER vs REVEREND RICHARD JOHN SIBANDA and THE APOSTOLIC FAITH MISSION
Ruled By: CHEDA J

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 ...
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HH91-10 : REVEREND R. J. SIBANDA and APOSTOLIC FAITH CHURCH vs MAGISTRATE RODNEY MZYECE N. O. and NCN MATIZA and K. BOSHA and O. GUMBO and THREE OTHERS
Ruled By: KARWI J

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 ...
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HH92-10 : MUDZIMUUNOERA APOSTOLIC CHURCH BOARD OF TRUSTEES vs MUDZIMUUNOERA APOSTOLIC CHURCH –GURUVE DIVISION and THE DEPUTY SHERIFF-MT DARWIN
Ruled By: MAKARAU JP

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 ...
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HH92-10 : MUDZIMUUNOERA APOSTOLIC CHURCH BOARD OF TRUSTEES vs MUDZIMUUNOERA APOSTOLIC CHURCH –GURUVE DIVISION and THE DEPUTY SHERIFF-MT DARWIN
Ruled By: MAKARAU JP

It is not part of our law that a respondent bears any burden of proof to hold onto a default judgment in its favour. The burden is always on the applicant to prove that there is just cause for the setting aside of the judgment.
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HH122-10 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANGE TOMAS KWODZI vs PATRIC JOHN STOOKS and P J STOOKS (PRIVATE) LIMITED
Ruled By: MAKONI J

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. ...
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HH169-10 : EDITH GARAKARA vs FARAI NGORIMA
Ruled By: KARWI J and BHUNU J

This is an appeal against the magistrate's ruling sitting at Kadoma dismissing the appellant's application for rescission of judgment on 15 December 2008.
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SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

On 25 February 2014, the respondent (Luxor), as the plaintiff, issued simultaneously a summons and a declaration claiming, inter alia;“(a) Cancellation of the lease agreement between the Plaintiffs and the Defendants on 31 January 2005;(b) Payment of the sum of US$11,127=55 being arrear rentals, operational costs, and rates as at 25 January 2013, ...
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SC51-15 : SMETHWICK TRADING (PRIVATE) LIMITED and SIMBA MANGWENDE vs ROME FURNITURE MANUFACTURERS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

This appeal is against a dismissal by the High Court of an application brought by the appellants for the rescission of a judgment granted by that court in default of appearance. At the outset of the appeal, counsel for the appellants advised the court that he would confine his submissions to the point raised ...
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HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

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 ...
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HH139-10 : COLLIN JIMU vs LIFESAVER INVESTMENTS (PRIVATE) LIMITED and DEPUTY SHERIFF
Ruled By: HUNGWE J

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 ...
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HH02-11 : THE MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and MINISTER OF JUSTICE AND LEGAL AFFAIRS vs LANGTON CHIGWIDA and J.K. MWATSIYA
Ruled By: CHATUKUTA J

This is an application for rescission of two judgments entered against the applicant in case no. HC6759/2000 and case no. HC6442/00 both granted on 6 February 2002 in favour of the first and second respondents respectively. The matters had been consolidated into one by an order of the court granted on 16 January 2001. The background ...