A Rescission Judgment
CHEDA J: This
is an application for a rescission of judgment.
Applicant is the
Executrix Dative of the Estate Late Clement Ndlovu and is also the surviving
spouse. During his life time Clement
Ndlovu entered into an agreement of sale of an immovable property with first
respondent on the 26th July 2001.
One of the terms of
the agreement was that first respondent was to pay an initial deposit and thereafter
pay the first instalment on or before the 30th August 2001. She, however, failed to pay the other
instalments for 3 months.
On the 22 October
2001, Clement Ndlovu gave first respondent a grace period up to 30 November
2001 to remedy the breach at the sametime advising her that in the event of her
failure then, the agreement would be cancelled.
Unknown to applicant first respondent paid $205000 which was 12 months
after the first breach.
In October 2002,
first respondent mounted a legal action against the late Clement Ndlovu which
was opposed. However, first respondent did
nothing from June 2003 to April 2006. Clement passed away in August 2006. After his death first respondent filed her
Heads of Argument.
The question then
is, was the late Clement Ndlovu in willful default. It is applicant's argument that he was not as
he was under the impression that first respondent had abandoned her claim. It is a fact that 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
applicant must show that he was not in willful default and that he had a bona
fide defence. It is a fact that
the late Clement Ndlovu genuinely believed that 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. This,
therefore, can not be said to have been willful default on his part.
As to whether or
not applicant had a genuine defence one has to look at first respondent's
action right from the beginning of this matter.
Upon realizing
that first respondent had breached the contract he advised her of the breach
and the consequences thereof. First
respondent did not heed this advice and only paid after 12 months. It is clear, therefore, that the late Clement
Ndlovu had always wanted to defend this matter which therefore shows his bona
fides.
In my opinion, 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 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
arguments in the above mentioned action
within 14 days of
this Order.
4. Costs
of suit shall be costs in the cause.
Bulawayo Legal
Projects Centre applicant's legal practitioners
Hwalima Moyo and
Associates, 1st respondent's legal
practitioners
