PATEL JA:
This is an
appeal against the judgment of the High Court refusing condonation for the late
filing of an application for rescission of default judgment. Both the
applications for condonation and rescission were heard together.
The court a quo correctly took the view that the main
application could only be dealt with after the application for condonation and
that the former must fail if the latter is refused. The learned judge
found that there was no merit in the application for condonation because the
applicant's predicament was due to its own dilatoriness. Having so found, the
court proceeded to dismiss both applications with costs on the legal
practitioner and client scale.
The grounds of appeal in this matter do not address the merits of the
application for condonation or the correctness of the exercise of its
discretion by the court a quo. Moreover, these grounds of appeal
are not only inelegantly framed but also incorrigibly incoherent. In
our view, they are utterly devoid of substance.
As for the judgment appealed against, we are unable to find any fault or
impropriety in the exercise of the court's discretion. Indeed, counsel
for the appellant was unable to identify any misdirection by the court a
quo in the exercise of its discretion to dismiss the applications for
condonation and rescission of default judgment.
As regards costs, we do not think that a case has been made out for an
award of costs de bonis propriis against the appellant's legal
practitioners, as was prayed for by the respondent's counsel. However, we
are satisfied that the respondent should receive its costs on a punitive scale
because, in our view, the appeal is entirely devoid of merit.
In the result, we are of the unanimous view that the appeal ought to
be and is hereby dismissed with costs on a legal practitioner and client scale.
ZIYAMBI JA:
I agree.
GWAUNZA JA:
I agree.
Cheda & Partners, appellant's legal practitioners
Coghlan, Welsh & Guest,
respondent's legal practitioners
