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 10th
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.
