TONY’S PANEL BEATER & SPRAY PAINTERS (PVT) LTD
HIGH COURT OF ZIMBABWE
HARARE, 23 November 2016 & 23 May 2018
O Mushumha, for the applicant
W. Chinhamhora, for the respondent
FOROMA J: This matter came before me as an opposed application on 23 November 2016. I dismissed the application for rescission of judgment at the conclusion of the hearing (argument) and promised that reasons for the decision would be handed down in due course. In September 2017 the respondent reminded the court that the reasons had not yet been delivered and enquired as to when they would be. Further delays were occasioned in the preparation of the reasons by the fact that the bound record containing the application notice of opposition and answering affidavit was not on file and an effort to locate it was not successful resulting in a copy being requested from the parties.
The reasons as promised are given below. In this application for rescission of a default judgment which has been made in terms of r 449 (1) (a) of the High Court Rules 1971 the following factual background is common cause- on 2 October 2015 respondent filed an action in terms of which it sought as against the applicant a declaratur nullifying an agreement of sale entered into between the applicant and respondent in or about January 2005 at Harare in respect of Stand 14776 Harare Township of Salisbury Township Lands measuring 5834 square metres on the grounds of statutory illegality together with ancillary relief. This action was commenced through issue of summons and declaration which was served on the applicant on 19 October 2015 who in turn entered an appearance to defend on 22 October 2015.
The applicant did not file and deliver his plea or any other answer to respondent’s claim in terms of the rules of this court despite the appearance to defend as a consequence of which the respondent filed and served on applicant a notice of intention to bar on 16 December 2015. The notice of intention to bar read as follows: