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 the applicant. In fact over
a year and half later still the applicant had not set down the
application. Even this set down was at
the behest of the respondent. 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 30 days 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. In other words, the point raised by the
respondent is that the application for rescission has been made outside the 30
day period set under Order 9 Rule 63(1), High Court Rules 1971. The respondent's case is that the
interpretation and impact of Order 9 Rule 63(1) was put to a 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 at 685 and Dube
& Anor v Zondo & Anor HB-28-09.
Ms
Moyo, for the applicant, submitted
there is no need for an application for condonation. She reasoned that the respondent's argument
is not in tandem with the Rules of the court which are peremptory and ought to
be complied with by the applicant. It is
argued that the Rules require that all applications have to comply with Order
32, Rules 226(1); 230; 231; 232 and 234.
The pith and marrow of the argument are that there is no way an
application of this kind can be filed, heard and determined within a thirty
(30) day period. In other words, the
periods referred to in Order 32, supra,
exceed thirty (30) days. Further, such
set down is the province
of Deputy Registrar and
the Judge allocated the application. In
other words, it is argued that the delay in set down beyond the thirty day
period is beyond the applicant's control.
The applicant's counsel has put forward an appealing and impressive
argument in this regard. But, the
Supreme Court had decided to follow the interpretation in Theunissen v Payne, supra,
that the making of the application is when the application is set down and
heard and not merely when it is filed with Registrar of the Court – Sibanda v Ntini, supra, at 267C-D and Viking
Woodwork (Pvt) Ltd v Blue Bells
Enterprises (Pvt) Ltd, supra, at 251C-E.
With this in mind, the law is now settled that if the application for
rescission is not heard and determined within thirty days, the applicant must
first seek an indulgence or condonation before the rescission is heard. This court is bound by the precedents set by
the Supreme Court. Arguing against such
clear decisions of the Supreme Court is province of academics and not this
court. Ms Moyo's submissions are in line with decisions in some South African
cases – Fisher v Commercial Union Assurance Co of SA Ltd 1977 (2) SA 499 (C ); Peter v Union and National South British Insurance Co Ltd 1978 (2) SA (D)
and Tladi v Guardian National Insurance 1992(1) SA 76 TPD. These cases preceded the above-mentioned
Supreme Court cases. So our highest
court in the land had access to these cases and were not persuaded to follow
the reasoning therein. In light of the
above, I find that the applicant has to apply for condonation before this
application is heard. Without a
substantive application for condonation, I cannot even indulge the applicant
not matter how sympathetic I am – Forestry
Commission Co v Moyo 1997(1) ZLR
254 (S) at 260; Mlondiwa v Regional Director of Education (Midlands
Province) & Anor HB-19-94; Talbert
v Jeoman Products P/L SC 111-99 and Murwara v Valeta 1996(1) ZLR 67 (S).
In casu, this point in limine was taken as early as December 2007. Over one and half years later, the applicant
has not applied for condonation. It is
not clear whether this was out of ignorance, arrogance or negligence. Be that as it may, there is no application
for leave in terms of Rule 63. If the
applicant was out of time by a short period, I would have considered a
postponement as was done by the Supreme Court in Murwara v Valeta, supra. But where a litigant does not seek indulgence
for over one and half years without even explaining the cause of such delay, I
feel a dismissal will be a judicious exercise of my discretion – Sibanda v Ntini, supra. Instead of
pursuing a hopeless legal argument, the applicant should have strived to
regularize the procedural flaws in its case.
This cavalier approach calls for costs on an enhanced scale. There is no need to deal with other points
raised.
Accordingly,
the application is dismissed with costs on a legal practitioner and client
scale.
Joel Pincus, Konson
& Wolhuter, applicant's legal practitioners
Coghlan & Welsh, respondent's legal practitioners
