Court name
Bulawayo High Court
Case number
HCA 1 of 2000

Micah Matshiya t/a Gadi Butchery v Gangarams Investments (Pvt) Ltd and Anor (HCA 1 of 2000) [2002] ZWBHC 36 (22 May 2002);

Law report citations
Media neutral citation
[2002] ZWBHC 36

                                          Judgment No. HB 36/2002

                                          Case No. HCA 1/2000
















A J S Sibanda for the appellant

B Sibanda for the 1st respondent

No appearance from 2nd respondent


Civil Appeal


      KAMOCHA J:  The first respondent applied for and was granted


summary judgment by default.  The appellant applied for the rescission of that


judgment without success.  He now appeals against the magistrate’s decision.


      For the purposes of this judgment I shall refer to the appellant as the defendant


and the first respondent as the plaintiff.


      The sequence of events in this matter are briefly these.  The plaintiff issued


summons on 13 April 1999 claiming the following:


(a)   Payment of the sum of $3 050,00;

(b)   Ejectment of defendant/appellant;

(c)   Damages at the rate of $101,67 per day reckoned from the 1st of May 1999 to   the date of ejectment;

(d)   Interest a tempore morae, and

(e)   Costs of suit


      The defendant entered appearance to defend on 22 April 1999. 


Because the plaintiff held the view that defendant had entered appearance to defend






just to buy time and had no genuine defence it applied for summary judgment on 11


June 1999.  The appellant was served with the application on 16 June 1999. 


On receipt of the application the appellant went to a pressure group known as


Affirmative Action Group to seek advice on the


way forward.  The defendant who was a businessman of long standing


should have gone to a law firm to seek advice instead of a pressure group.  As it turn


out the pressure group did nothing about the matter until summary judgment was


granted by default.


      The defendant applied for the rescission of that judgment but his


application failed because the court a quo found that he was in willful default.  The


court a quo held the view that since the appellant chose to spend most of his time


dealing with Affirmative Action Group and only decided to consult legal practitioners


as a last resort he was in willful default.


      In his appeal the appellant pointed out that the defendant was not


properly before the court a quo because the application for summary judgment was


made way out of time.  It should have been made within seven days after receiving


notice of appearance to defend as required by order 15 rule 1(2) of the Magistrates’


Court Rules.


      The appellant is correct because the Magistrates’ Court Rules unlike the High


Court Rules which allow an application for summary judgment to be made any time


after appearance to defend has been entered provided it is before the holding of a


pre-trial conference.  Order 15 rule 1(2) of the Magistrates’ Court Rules reads as







      “(2)  An application in terms of sub rule (1) shall be made on not less than       seven days’ notice delivered not more than seven days after the date of             defendant’s appearance to defend and the plaintiff shall deliver within             such notice ...”


      In casu the application for summary judgment was made after about 50 days. 


The situation is made worse by the fact that having been out of time for such a long


time the applicant made no attempt to apply for condonation.  The application was


simply lodged as if everything was in order.  The trial magistrate does not seem to


have been aware of the defect non compliance with the rules.


      An application for summary judgment should ensure that there is compliance


with the rules governing such applications as failure to do so may result in a fatal


defect.  In this case the provisions of the rules are peremptory and no explanation was


given for failure to comply with the rules.  The court a quo should have granted the


application for rescission of judgment.


      In the circumstances the appeal succeeds.   The judgment of the court a quo


dismissing the application for rescission of judgment with costs is hereby set aside.  It


is substituted with an order that the application for rescission be and is hereby granted


with costs.  The respondent shall pay the costs of this appeal.




                        Cheda J:    I agree



Joel Pincus, Kenson & Wolhuter appellant’s legal practitioners

Messrs Sansole & Senda first respondent’s legal practitioners