MAFU v NCUBE & ANOR

HIGH COURT, BULAWAYO

[Urgent Chamber Application HB 04-16]

December 31, 2015 and January 14, 2016

MATHONSI J

Practice and procedure  – Default judgment  – Judgment granting rescission of  – Whether competent to seek rescission thereof.

Practice and procedure  – Interlocutory order  – Default judgment  – Whether interlocutory.

In answering the question left open in Kwaramba v Winshop Enterprises (Pvt) Ltd & Ors HH 788-15 (unreported), that is, whether an order granting rescission of judgment is interlocutory in nature:

Held, that rescission of an order granting rescission is undesirable and the court will lean in favour of disposition of a dispute on its merits.

Held, further, that an order granting rescission of judgment is interlocutory in nature as it does not dispose of the rights of the parties or have the effect of disposing of the whole or a portion of the relief claimed by any of the parties.

Cases cited:

Boadi v Boadi & Anor 1992 (2) ZLR 22 (H), referred to

Dobrock Holdings (Pvt) Ltd v Turner & Sons (Pvt) Ltd & Anor 2008 (2) ZLR 153 (S), referred to

Gillespies Monumental Works (Pvt) Ltd v Granite Quarries (Pvt) Ltd 1997 (2) ZLR 436 (H), referred to

Jesse v Chioza 1996 (1) ZLR 341 (S), referred to

Kwaramba v Winshop Enterprises (Pvt) Ltd & Ors HH 788-15 (unreported), referred to

Setlogelo v Setlogelo 1914 AD 221, referred to

Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S), referred to

Book cited:

Van Loggerenberg DE Jones & Buckle The Civil Practice of the Magistrates’ Courts in South Africa (8th edn, Juta & Co Ltd, Cape Town, 1991) Vol 1

N Mlala, for the applicant

R Moyo-Majwabu, for the first respondent

Second respondent in default

MATHONSI J:

I just have to repeat what I have said before in trying to unlock the conundrum posed by this application:

“Why would a party approach the court for a rescission of a rescission of judgment order unless proceeding with the main cause is so calamitous that it cannot be contemplated? For one thing such party would have obtained a default judgment which would have been rescinded by the court thereby paving the way for the resolution of the main matter once and for all on the merits. To then spend time, energy and money trying to reverse the process and revert to the default judgment status quo is, in my view, a trifle. As it is, considering that this matter is being argued exactly a year after the application was filed, means that another year has been lost in trying to hang onto a default judgment when the merits of the matter would have been determined by now. Could it be that the applicant sees something in that default judgment which none of us can see.” (Kwaramba v Winshop Enterprises (Pvt) Ltd & Ors HH 788-15 (unreported))

For the purpose of the present matter, I should add that the applicant does not even mention any resort to the original cause which gave rise to the default judgment that was rescinded content to fight for the reinstatement of the rescinded order in order to hang onto it until kingdom come. The other pertinent question which arises is whether an order granting rescission, allowing as it does, the parties to deal with the merits of the main matter can lawfully be rescinded.

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