Court name
Supreme Court of Zimbabwe
Case number
SC 67 of 2003
Civil Appeal 280 of 2001

Jones v Strong (80/01) (SC 67 of 2003, Civil Appeal 280 of 2001) [2004] ZWSC 67 (09 June 2004);

Law report citations
Media neutral citation
[2004] ZWSC 67










REPORTABLE
(62)


Judgment
No. SC 67/03


Civil
Appeal No. 280/01








JOHN
HARRIES JONES v KIM GRAHAM
STRONG








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA JA


HARARE,
NOVEMBER 24, 2003 & JUNE 10, 2004








J
B Wood
,
for the appellant





I
E G Musimbe
,
for the respondent





CHEDA
JA: The appellant and the respondent are involved in a dispute in
which the appellant challenges the appointment of the
respondent as
executor of the estate of the late Patricia Read.





When
the matter was heard at the High Court, the appellant was applying
for rescission of judgments given against him in case numbers
HC 18261/99 and HC 3149/00.





The
respondent contended that the appellant was not properly before the
High Court as both applications were filed out of time and
no
condonation had been granted or sought.





The
appellant contended that he had no obligation to seek condonation to
comply with Rule 63 of the High Court Rules (“the
Rules”),
as he was entitled to seek rescission in terms of Rule 449 of
the Rules or under the common law.





Rule 63
of the Rules provides as follows:






“63 Court
may set aside judgment given in default





(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.”





The
appellant in this case failed to meet the requirements of the above
Rule. He did not apply for rescission within the period
provided in
the Rules. Having failed to do so, there was a need for him to
apply for condonation, but no such application was made.





Confronted
with this situation, the appellant still made no application for
condonation, but maintained his argument that he was
not obliged to
apply for condonation as he was entitled to apply for rescission of
judgment in terms of Rule 449 of the Rules.





Rule 449
provides as follows:






“449 Correction,
variation and rescission of judgments and orders






(1) The court
or a judge may, in addition to any other power it or he may have,
mero
motu

or upon the application of any party affected, correct, rescind or
vary any judgment or order –





(a) that
was erroneously sought or erroneously granted in the absence of any
party affected thereby; or






(b) in
which there is an ambiguity or a patent error or omission, but only
to the extent of such ambiguity, error or omission; or





(c) that
was granted as the result of a mistake common to the parties.



(2) The
court or a judge shall not make any order correcting, rescinding or
varying a judgment or order unless satisfied that all
parties whose
interests may be affected have had notice of the order proposed.”





In
terms of rule 63, when condonation is sought the applicant has
to explain the reasons for the default, the reason why the
application for rescission was not made within the period of one
month as required by this rule, and show that he, the applicant,
has
a good defence to the action on the merits.






In this
case, however, the court
a quo
found that the application for rescission was made in terms of
rule 63, which requires that condonation should be sought first
for the application. In the absence of any application for
condonation the application had to fail for want of compliance with
that rule.






The court
a quo
also found that there was nothing to show that the application was
made in terms of either rule 449 or the common law. Generally,
applications of this nature are made in terms of rule 63. I
agree with this finding and the finding that the issue of rule 449
was an afterthought by the applicant when he realised that it would
be difficult to proceed with the application the way it was presented
without applying for condonation.






Ms Wood,
who appeared for the appellant, submitted that the only application
before the court
a quo
was for postponement. However, the respondent said she argued the
merits as well. The appellant’s heads of argument do contain
argument on the merits. It follows that although the court
a quo
chose not to deal with the merits in its judgment, it had heard the
applications for postponement and rescission and the arguments
on the
merits before it made its decision.





The
appellant seems to have failed to appreciate that in order to place
himself properly before the court condonation was required.
This
seems to be on the basis of the incorrect assumption that the
application could be considered in terms of rule 449.





In
a case where the application is out of time, and condonation is
required in terms of rule 63, failure to obtain it is fatal
to
the application. It cannot be heard without the party concerned
placing himself properly before the court by seeking condonation.





On
the merits the appellant does not have a good case either. In each
of the two cases he failed to file his pleas, even when
threatened
with being barred. No proper explanation was given for the failure
to enter his pleas.





Even
after that, there was still a long and unexplained delay in applying
for rescission. His suggestion that he was not aware
that default
judgments had been entered against him cannot assist him as he was
aware that threats had been made to bar him if he
did not act
accordingly. This shows a deliberate neglect of the rules.






I therefore
find no fault in the court
a quo
refusing a postponement and dismissing both applications for
rescission.



I
see no merit in the appeal and it is dismissed with costs.




















SANDURA  JA:
I agree.




















GWAUNZA
JA: I agree.





















Byron
Venturas & Partners
,
appellant's legal practitioners


I
E G Musimbe & Partners
,
respondent's legal practitioners