The applicant sought to set aside a confirmed judicial sale in execution of her former matrimonial home, in which she claimed a 50% undivided share. The property was attached and sold in 2015 and transferred to the first respondent in 2019. The applicant had previously approached the court seeking leave to file out of time an objection to confirmation of the sale (HC 2249/19). That application was dismissed for want of prosecution on 30 September 2019 by Dube J. The applicant became aware of this judgment in January 2020 and filed a rescission application in March 2020 (HC 1954/20), which was withdrawn on 10 November 2020 due to fatal defects. The present application, filed on 20 May 2021, was the applicant's second attempt to rescind the default judgment. The first respondent opposed the application on grounds of inordinate delay, lack of prospects of success, abuse of process, and that it was adverse to the administration of justice and finality of litigation.
The application for condonation was refused with costs on the ordinary scale.
A party seeking rescission of a court judgment and condonation for delay must provide satisfactory explanations for all delays at each stage of the litigation. Where there has been repetitive breach of court rules, inordinate and unjustified delay across multiple interlocutory applications over an extended period (in this case seven years), and a judicial sale has been confirmed and transfer of title effected to a third party, the court will refuse condonation in the interests of finality to litigation. The burden is on the applicant for condonation to provide a complete and coherent explanation for delay, and failure to do so at multiple stages of the litigation is fatal to such an application.
The court made important observations about proper practice in drawing up court papers, stating that litigants and legal practitioners must apply the basics of report writing when drawing up court applications. The court criticized the practice of presenting inconclusive accounts with unexplained gaps and then relying on the court's right to refer to its own records, or attempting to include evidence in heads of argument or give evidence from the bar under the guise of referring to "matters already before the courts." The court emphasized that this is especially important in condonation applications characterized by duplicity of matters and a contentious history. The court also observed that while a solution may exist to the applicant's problems, it did not necessarily lie in the judicial process she was pursuing, suggesting alternative remedies might be available outside the court process being attempted.
This case reinforces the importance of finality in litigation, particularly in matters involving judicial sales in execution. It demonstrates the courts' strict approach to condonation applications where there has been repeated and unjustified delay across multiple stages of litigation. The judgment also emphasizes the importance of proper pleadings and the requirement that litigants and legal practitioners must identify, gather, process and synthesize essential facts and evidence properly in court applications, rather than relying on incomplete affidavits supplemented by evidence in heads of argument or from the bar. The case illustrates that where a property has been sold, confirmed and transferred to a third party, and significant time has elapsed, courts will be reluctant to grant condonation to challenge such sales absent compelling justification.