Application
for Rescission
TAKUVA
J: This
is an application for rescission of a decision made in case number
HC1646/12 wherein it was ordered that the applicant's defence
should be struck out and the matter referred to the unopposed roll.
The
facts are that on 21st
May 2012, the respondent instituted proceedings against the
applicants for payment of the sum of US$101,767,04 being the amount
due in respect of fuel sold and delivered to the applicants and
monies lent and advanced to the applicants.
The
matter progressed to pre-trial conference and was set down for a
pre-trial conference on 26th
June 2013.
At
the pre-trial conference the applicants' legal practitioner
indicated that she had been failing to get hold of her client and
only managed to talk to the 2nd
applicant the morning of the pre-trial conference. She was thus
seeking a postponement of the pre-trial conference to enable her to
file the requisite pre-trial conference papers.
The
Judge was of the view that it was unacceptable that the applicants
had not bothered to stay in touch with their lawyers and that no
effort had been made to obtain instructions for 8 months from the
time that the respondent filed their pre-trial conference papers.
He
thus struck off the applicants' defence and referred the matter to
the unopposed roll.
At
the hearing of this application, the respondent raised a point in
limine relating to non-compliance with R63(1) and (2) of the High
Court Rules 1971.
Rule
63 states:
“63.
Court
may set aside judgment in default
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 1 month after he has had knowledge of the
judgment, for the judgment to be set aside.
2.
If the court is satisfied on an application in terms of sub rule (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.
3.
Unless an applicant for the setting aside of a judgment in terms of
this rule proves to the contrary, he shall be presumed to have had
knowledge of the judgment within two days after the date thereof.”
In
Sibanda
v
Ntini
2002 (1) ZLR 264 (S) it was held per MALABA J (as he then was) that:
“Before
considering the merits of an application for rescission of a default
judgment in terms of Order 9 Rule 63 of the High Court Rules, 1971,
the court must be satisfied either that the application has been
made, that is set down for hearing and not just filed with the
registrar – within 1 month 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.
If
an application for rescission is made after that date, the
application is not properly before the court.
The
applicant must disclose in his application the date on which he had
knowledge of the judgment failing which it will be presumed in terms
of Rule 63(3) to be the second day after the date of the judgment.”
In
the present case, the decision was made on 26 June 2013 and the
application was filed with the Registrar on 25 July 2013. However, it
was not set down until 12 months later on 25 July 2014.
Counsel
for applicant conceded that the application is not properly before
the court on the authority of Sibanda's
case supra.
He, however, sought to persuade the court that this is no longer our
law as this decision was overturned by the full Supreme Court
decision in Pastor James
Moyo and 3 Ors
v Rev
O. Richard Johnston Sibanda and Ano
HB125-11.
He
promised to supply the court with the judgment but to date no such
judgment was filed with the Registrar.
This
court, in accordance with the stare
decisis
doctrine is bound by Supreme Court decisions – see Sai
Enterprises (Pvt) Ltd
v Girdle
Enterprises (Pvt) Ltd
2009
(1) ZLR 352 (H).
In
view of the above, I find that the application is not properly before
me for non-compliance with Rule 63(1) and (2) of the High Court
Rules, 1971.
Accordingly,
the application is dismissed with costs.
Lazarus
& Sarif,
applicant's legal practitioners
Calderwood,
Bryce Hendries & Partners,
respondent's
legal practitioners
