CHEDA J: This is an application for rescission of judgment.
Before applicant
made his submissions respondents through their legal practitioner, Mr. Mazibisa raised a point in limine
being that applicants should not be heard on merits because they failed to
comply with Order 9 Rule 63(1) which states:-
“63(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 one month after he has
had knowledge of the judgment, for the judgment to be set aside.”
That
applicant did not apply for the setting aside of the judgment granted in
default within one month admits of no doubt.
It is for that fact, that respondents argue that applicants should not
be heard as they have not complied with that rule.
Advocate
Zhou for applicants while
acknowledging that, indeed, applicants did not file their application for
rescission timeously and did not apply for condonation of the late filing of
the same sought to argue that, this court had a discretion to hear the
application for condonation together with the application on merits.
Mr.
Mazibisa has argued that Rule 63
shows that applicant should make the said application and have it set down for
hearing and subsequent hearing within 30 days. In
Viking Woodwork (Pvt) Ltd v Bluebell
Enterprises (Pvt) Ltd 1998(2) ZLR 249 (S) at p251 SANDURA JA stated: -
“In terms of Rule
63(1), a defendant against whom default judgment has been granted has a period
of one month, from the time he becomes aware of the judgment, within which to
file an application for the rescission of judgment. If he does not make the application within
that period but wants to make it after the period has expired, he must first of
all make an application for the condonation of the late filing of the
application. This should be done as soon
as he realizes that he has not complied with the rule. If he does not seek condonation as soon as
possible, he should give an acceptable explanation, not only for the delay in
making the application for rescission of the default judgment, but also for the
delay in seeking condonation.”
Advocate
Zhou has argued that the interpretation of Rule 63 relates to the filing only
and not the filing and hearing. This,
he, further argued by deduction, that the application can still be entertained
at the hearing of the main application.
The
question that falls for determination therefore, is the interpretation of the
meaning of Rule 63.
In Sibanda v Ntini 2002(1) ZLR 264(S) at p266 F-G MALABA JA stated:-
“It is clear from r 63(2) that before considering the question whether or not
the application contains a “good and sufficient cause” for it to exercise the
wide discretion conferred upon it in favour of the applicant, the court must
be satisfied that the application has been made and granted.” (the emphasis is mine)
The
learned judge made it clear in that judgment that it is, not only the filing
which is necessary, but, it is the filing, hearing and granting of the order.
This does not only make legal sense but common sense too, as, applicants' right
of audience for the application for rescission to be heard is dependent on the condonation
being granted by the court. The same
principle was followed in Highline motor
spares (Pvt) Ltd and others (1933) v ZIMBANK Co-operation Ltd 2002 (1) ZLR
514(S) and Dube v Zondo HB 28/09.
In
casu applicants did not apply within the stipulated period and therefore
its application has not been heard. It
stands to reason, therefore, that, they are not properly before the court.
Applicants
were advised of the anomaly well before the hearing but did not take steps to
remedy the said anomaly, they, therefore, acted unlawfully and improperly. Their actions in this matter exhibit obdurate
behaviour which these courts frown upon as it is a disregard of the rules. Such conduct, these courts have stated on
several occasions that it should be punished for.
I
am, therefore, of the opinion that this is the type of conduct which befits
costs on a higher scale.
In
view of the above, the points raised in point in limine are
upheld and the application is dismissed with costs on a higher scale.
Musunga and Associates,
applicants' legal practitioners
Cheda and Partners, respondents' legal practitioners
