Accurist Trading (Pvt) LTD T/a Lewisam Motors Versus Cornhood Investments (Pvt) LTD

### Preamble
1
HH 125-22
HC 764-21
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ACCURIST TRADING (PVT) LTD t/a LEWISAM MOTORS

versus

CORNHOOD INVESTMENTS (PVT) LTD

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 22 NOVEMBER 2021 and 9 MARCH 2022

OPPOSED APPLICATION

P Pabwe, for applicant

S Uchena, for respondent

TAGU.J:  This is an application for rescission of default judgement.

The background facts are that on 22 September 2020 the applicant was served with a copy of summons issued by the respondent. On 24 September 2020 the applicant entered an appearance to defend.  On 27 October 2020 the applicant filed its plea and counter claim. On 4 December 2020 this court granted a default judgment against the applicant for failure to file a plea. This was clearly as a result a result of misfiling by the Registrar’s office hence the plea and counter claim were not recorded at the time the Court granted the default judgment. The plea and counter claim had been filed timeously as proved by the date stamp issued by the Registrar of the High Court on 27 October 2020.  The applicant was therefore not in willful default hence the present application for rescission of that judgment.

The respondent is opposing the application.

At the hearing of the matter the respondent raised five points in limine. The first point in limine being that the applicant has no right of audience. The second point in limine was that the applicant approached the court with dirty hands. The third point in limine was that applicant disregarded rules i.e. R100 and should not be entertained. The fourth point was that the applicant is barred and the fifth and final point was that the matter is rendered academic due to the passage of time and other facts outside the record. The respondent submitted that applicant to first apply for the upliftment of the bar.  Had not complied with the court order, disregarded rules and time limits and other issues.

The points in limine were opposed by the applicant.

Having considered the points in limine it is clear that the respondent is barred for failing to comply with the rules, that is, failing to file plea in time. I have read the papers filed of record. It is clear that these points in limine are without merit because the applicant filed its plea and counter claim timeously.  The problem lied with the Registrar‘s office that misfiled the applicant’s papers hence at the time the default judgment was granted the applicant’s plea had not been recorded in the file. I will therefore dismiss all the points in limine for lack of merit.

Coming to the merit of the application it is clear that the applicant was not in willful default. If one looks at the plea and counter claim the applicant has good prospects of success in the main matter.  For the above reasons I will grant the application.

IT IS ORDERED THAT

The default judgment granted against the applicant under case number HC 5274/20 on 4 December 2020 by the Honourable Justice Mangota be and is hereby set aside.

The Registrar be and is hereby ordered to process and record the applicant’s plea and counter claim in accordance with the rules of this court.

Leave is given to the respondent to file its defence to the applicant’s counter claim in accordance with the rules.

Costs shall be costs in the cause.

Venturus & Samukange, applicant’s legal practitioners

Chinyama Attorneys, respondent’s legal practitioners