Colforth Investment (Private) Limited and Others v Kingdom Bank Limited

Default judgment was entered against the applicants on 18 January 2011. The applicants became aware of the judgment in May and June 2011. The applicants filed an application for rescission of judgment without first seeking condonation for the late filing. Rule 63(1) of the High Court Rules requires that an application to set aside a default judgment must be made within one month of having knowledge of the judgment. The applicants' application was filed beyond this one-month period without obtaining condonation for the delay.

• Whether an application for rescission of default judgment filed outside the one-month period prescribed by Rule 63(1) without prior condonation can be properly before the court
• Whether an oral application for condonation can succeed without evidence being placed before the court
• Whether failure to obtain condonation is fatal to rescission proceedings

Both the oral application for condonation for late noting of the rescission application and the application for rescission of judgment were dismissed. The applicants were ordered to pay costs on an attorney and client scale.

An application for rescission of default judgment filed outside the one-month period prescribed by Rule 63(1) of the High Court Rules without first obtaining condonation is not properly before the court. Failure to obtain condonation is fatal to rescission proceedings. An application for condonation, whether written or oral, cannot succeed without evidence being placed before the court to enable it to make a meaningful decision.

The court noted that it is a settled principle of law that when a defendant against whom default judgment has been granted does not meet the one-month deadline from becoming aware of the judgment, he must first make an application for condonation for late noting of the rescission application, and there must also be an explanation for the delay in seeking condonation. The court cited Viking Woodworks (Pvt) Ltd v Blue Bells Enterprises Ltd 1998 (2) ZLR 249 (S) and Ngwende (Estate) v Masomera HC 1308/10 in support of these principles.

This case reinforces the strict procedural requirements under Rule 63(1) of the High Court Rules regarding rescission of default judgments. It emphasizes that condonation must first be obtained when the one-month period has lapsed, and that failure to obtain condonation is fatal to rescission proceedings. The case also demonstrates that applications for condonation, whether written or oral, must be supported by evidence for the court to properly consider them.