In Their Own Words:
Read judgment in Tapvice Enterprises v Tetrade Investment Bank
Judge Pisirai Kwenda, High Court of Zimbabwe, Harare
A number of issues bedevilled this case, which was an application for rescission of a default judgment against the applicants. One problem was the responsibility of attorneys to inform parties against whom they would be appearing in court, of any change of address. And to do so, not by way of a general letter to all and sundry, as was done in this case.
But there were other concerns too. One of which was that the applicants did not include, among their documents, a copy of the order that they wanted rescinded.
Here’s what Judge Pisirai Kwenda said about it:
For some reason the applicants have failed to attach the order which they want rescinded. There is no explanation why this court should be required to rescind a judgment it has not seen. While this court has the right to peruse all related files, that on its own does not create an obligation on this court to look for a related file and identify the relevant order. A court peruses related files to verify facts and not to identify, fish out and annex supporting documents. This application should have been submitted with all relevant information.
And here is the judge’s conclusion:
This court has the power to set aside any judgment entered in default if satisfied that there is good and sufficient cause. All the circumstances of the case have to be taken into account. In this case the reason for the default was gross negligence by applicants’ lawyer of choice. This court could still grant rescission of judgment if the defence on the merits was strong. See HockeyN.O v Rio Zim and Anor 1939 SR 107. I am unable to decipher anything on the basis of the founding affidavit and documents submitted with it which could constitute a sustainable defence to the claim which remains unsettled for 8 years.
I am therefore not persuaded that there is good and sufficient reason to exercise discretion in favour of the applicants.
I order as follows:
The application be and is hereby dismissed with costs.
- Newsletter, Judicial Institute for Africa