Construction Industry Pension Fund v Cone Engineering (Pvt) Ltd

The applicant (Construction Industry Pension Fund) obtained a default judgment against the respondent (Cone Engineering) on 3 February 2011, granting cancellation of a lease agreement, payment of arrear rentals of US$3,222.33 with interest, eviction from Unit 1, 5 Woodburg Road, Thorngrove, Bulawayo, and attorney-client costs. Three months later, the respondent filed an application for rescission of the default judgment, claiming the judgment was granted in error. The respondent alleged that after receiving summons, it proposed to liquidate arrear rentals at US$500 per month, which was allegedly accepted by the applicant's agents. However, the respondent made no payments towards the arrears since January 2011, only paying monthly rentals totaling US$2,674. The respondent believed litigation had ceased as it continued to occupy the property and pay current rent. The respondent failed to set down the rescission matter within one month of filing its answering affidavit and failed to file heads of argument within 10 days of the applicant's heads. The applicant sought dismissal of the rescission application for want of prosecution.

• Whether the respondent's rescission application should be dismissed for want of prosecution due to non-compliance with court rules
• Whether the respondent's failure to set down the matter timeously and file heads of argument constituted grounds for dismissal
• Whether the respondent's laxity in prosecuting its application warranted the court's intervention

The court ordered that: (1) The application filed by respondent under case number HC 1225/11 be and is hereby dismissed for want of prosecution; and (2) The respondent be and is hereby ordered to pay costs of suit on an attorney and client scale.

A party seeking rescission of judgment must comply with the rules of court in prosecuting their application. Failure to set down a matter within the prescribed time limit and failure to file heads of argument timeously constitutes want of prosecution warranting dismissal of the application. The court will not protect a litigant's laxity or perfunctory handling of their case, particularly where such conduct has been consistent from the outset of the matter.

The court observed that the respondent had been handling its case in a perfunctory fashion "right from the onset," noting its failure to pay rentals timeously leading to arrears and its subsequent failure to make any payments toward those arrears despite allegedly agreeing to a payment plan. The court also noted that while the respondent paid current monthly rentals totaling US$2,674, it paid "no cent" towards liquidation of the arrear rentals, which demonstrated a pattern of non-compliance and lack of good faith in dealing with its obligations.

This case reinforces the principle that parties must comply strictly with court rules and timelines when prosecuting applications. It demonstrates that courts will not protect litigants who handle their cases in a perfunctory or lax manner, and that failure to comply with procedural requirements (such as setting down matters timeously and filing heads of argument within prescribed periods) will result in dismissal for want of prosecution. The case also illustrates that attorney-client scale costs may be awarded where a party's conduct demonstrates persistent non-compliance with court procedures.