At
the hearing of the application I dismissed it with costs. The
applicant has requested for written reasons for the dismissal.
These
are the reasons:-
The
respondent was appointed executor of the estate of the late Phineas
Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende.
This
application was for condonation of late filing of an application for
rescission of a default judgment granted by this court on 23 August
2010.
The
bare bones of the matter are that prior to his demise, the late
Lovemore Ngwende had instituted a court application, under case
number HC1308/10, challenging the validity of the second Will said to
have been executed by his late father, Phineas Ngwende. Apparently, a
default judgment was granted against Lovemore Ngwende in that case
after which he lodged an application for its rescission which he
failed to prosecute timeously, prompting the respondent to make a
chamber application, under case number HC5285/10, to have the
application dismissed for want of prosecution.
On
23 August 2010, MUSAKWA J granted the chamber application by way of
this order:
“Court
application for Rescission of Default Judgment (sic)
Case No. HC1308/10 be and is hereby dismissed for want of
prosecution. First respondent pays costs of suit.”
In
the present application, filed on 14 April 2011, the applicant was
seeking condonation for late noting of an application for the
rescission of MUSAKWA J's order of 23 August, 2010.
The
law in an application of this nature is now trite.
In
Viking
Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (SC) A it was held that in terms of Rule 63(1) a
defendant against whom a default judgment has been granted has a
period of one month from the date he became aware of the judgment to
apply for rescission of that judgment. If he does not make the
application within that period, but wants to make it after the period
has expired, he must first make an application for condonation of the
late filing of the application. 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 but also for
the delay in seeking condonation. There are thus two hurdles to
overcome. See also Saloojee
& Anor NNO v
Minister of Community Development
1965
(2) SA 135..,.
In
the instant case, the default order sought to be rescinded was
granted on 23 August 2010. The late Lovemore Ngwende died in December
2010. The application for condonation was only filed on 14 April
2011. The applicant is non-committal as to when exactly he became
aware of the default order save to say in the founding affidavit;
“We
only became aware of the existence of the application (sic)
when the respondent wrote a letter threatening to sell the house in
Highfield which the window (sic)
of late Lovemore Ngwende is residing…,. We could not challenge the
application (sic)
during the relevant time before the appointment of executor hence
this delay. The delay was not wilful.”
The
papers filed of record ventilate that at least by 3 January 2011 the
widow of the late Lovemore Ngwende had become aware of the default
order of 23 August 2010 for on that date she wrote to the Master of
this Court complaining about the respondent's threat to dispose of
the Highfield house to offset the liabilities of the estate. Even if
the court were to be benevolent and accept that both the application
for the rescission of the order as well as for condonation could not
be filed before appointment of the executor, I would still be minded
to find the explanation for the delay unacceptable.
The
applicant was appointed executor dative of the late Lovemore
Ngwende's estate on 1 March 2011. By then, Lovemore Ngwende's
widow had long been aware of the existence of the default order. The
application for condonation of late filing of the application for
rescission of the default order was only filed on 14 April 2011 –
one month 14 days after the appointment of the executor. The
peroration in the applicant's founding affidavit that the delay was
occasioned by the wait to have the executor appointed amounts to
digging in the ashes. No explanation as to why the condonation was
not sought as soon as possible after 1 March 2011 or why the
application for rescission was also not filed soon after that date,
or, at most, within one month post 1 March 2011 has been proferred.
In
the event, the two hurdles the applicant had the onus of scaling
remained insurmountable to him.
Even
if one were to look at the prospects of success regarding the default
order sought to be impugned, the complaint is that a matter should
not be dismissed for want of prosecution due to a delay of only four
months, I would still find the applicant non-suited if account is had
to Order 32 Rule 236(3)(b). It provides that where the respondent has
filed a notice of opposition and an opposing affidavit and, within
one month thereafter, the applicant has neither filed an answering
affidavit nor set the matter down for hearing, the respondent may, on
notice to the applicant, make a chamber application to dismiss the
matter for want of prosecution.
This
is exactly what the respondent did and I have no reason to doubt that
my brother MUSAKWA J, in granting the chamber application, was
satisfied, on the papers before him, that the requirements of the
relevant Rule had been complied with.
It
is not sufficient for the applicant in
casu
to merely baldly allege that he was not served with the notice for
the chamber application or that the matter had been set down for
hearing. If that was so then the proper procedure was for the
applicant to invoke Rule 449(1)(a) for it would have been clear that
the order was granted in error.
The
applicant also attempted to go further on prospects of success
regarding the main matter of challenging the Will.
While
that aspect does not fall within the realm of the present application
it behoves me to utter some strictures concerning it vis-à-vis the
principle of finality to litigation. The first and final distribution
account of the late Phineas Ngwende was approved by the Master of the
High Court and the plot in contention, which the first Will had
bequeathed to the late Lovemore Ngwende but was later bequeathed to
Lovemore's stepmother and two stepbrothers in equal shares by the
second Will has long been sold by private treaty for value and
transferred to an innocent third party and the proceeds shared
amongst the beneficiaries and dissipated. The prospects of success,
even in the main matter, seem to be only a pie in the sky.
The
foregoing were the reasons why the application for condonation for
late filing of the application for rescission was dismissed with
costs.
