HH 247-18 TRUSTEES (FOR THE TIME BEING) OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST versus MATRIX REALTY (PRIVATE) LIMITED

TRUSTEES (FOR THE TIME BEING) OF TONGOGARA

COMMUNITY SHARE OWNERSHIP TRUST

versus

MATRIX REALTY (PRIVATE) LIMITED

 

 

 

 

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 12 February 2018, 29 March 2018, 10 April 2018 & 16 May 2018

 

 

 

Opposed Application

 

 

E.T Moyo, for the applicant

T. Mpofu, for the respondent

 

 

            MUREMBA J: This is an application for rescission of a default judgment that was granted against the applicant on 24 May 2017. Apparently the applicant had been served with a court application by the respondent on 26 April 2017 claiming payment of US$54 625-00 and costs of suit on a higher scale. The applicant filed its notice of opposition and opposing affidavit out of time on 16 May 2017, the dies inducea having expired on 11 May 2017. Consequently, the respondent applied for a default judgment which was granted on 24 May 2017.

            In response to the application for rescission, the respondent had initially raised a point in limine to the effect that the application was improperly before the court having been filed out of time. However, at the beginning of the hearing, the respondent abandoned this point in limine. The matter was then argued on the merits. However, as Mr Moyo for the applicant was still making his submissions he sought to withdraw the application and tendered wasted costs, but Mr Mpofu vehemently opposed the application to withdraw and moved an application for dismissal of the applicant’s application for rescission with costs on a higher scale arguing that the matter had been argued and as such there was need to bring finality to litigation. After hearing argument on Mr Mpofu’s oral application, I delivered judgment in HH 164/18 dismissing Mr Moyo’s application to withdraw the application for rescission of the default judgment and ordered the hearing of the same application to proceed for a determination on 

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2018