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.
In light of the above, I find that the
applicants have to apply for condonation before their application for
rescission is entertained.
