Makhosini Hlongwane v Iqbal Ealias Karbanee

On 18 December 2015, the applicant filed an application for rescission of judgment in the High Court. The application was opposed by the respondent. Before the application could be heard on merits, the respondent raised a preliminary point challenging that the applicant's case was not properly before the court. The respondent argued that the applicant had failed to file the rescission application within one month of knowledge of the judgment as required by Order 9 Rule 63(1) of the High Court Rules, 1971, and had not filed an application for condonation for the late filing. The respondent noted that the applicant had previously successfully raised this same technical argument in Case HC 799/08.

• Whether an application for rescission of judgment filed outside the one-month period prescribed by Order 9 Rule 63(1) of the High Court Rules, 1971 is properly before the court in the absence of an application for condonation
• The correct interpretation of Order 9 Rule 63(1) of the High Court Rules, 1971 regarding the time limits for filing rescission applications
• Whether the judgment in Moyo and Ors v Sibanda & Anor changed the established Supreme Court position on rescission applications

1. The application was struck off the roll for failure to comply with Rule 63(1) of the High Court Rules, 1971. 2. The applicant was ordered to pay costs of suit.

An application for rescission of a default judgment filed outside the one-month period prescribed by Order 9 Rule 63(1) of the High Court Rules, 1971 is not properly before the court unless it is preceded by an application for condonation of the late filing. Where an applicant fails to comply with this mandatory procedural requirement, the court must strike off the application regardless of its merits. There are two hurdles to overcome: the applicant must provide an acceptable explanation for the delay in making the rescission application and for the delay in seeking condonation. In cases of flagrant breaches of court rules, especially where there is no acceptable explanation, the indulgence of condonation may be refused whatever the merits may be.

The court noted that even if the applicant had a bona fide defence, this would not necessarily have assisted him in light of the flagrant breach of the rules. The court observed with disapproval that the applicant had previously successfully raised this same technical argument in HC 799/08, indicating that he was fully aware of the requirements and deliberately chose not to comply. The court characterized this conduct as vacillating from a well-settled legal position and warranting an order of costs. The judgment also clarified that the Moyo v Sibanda judgment by MATHONSI J did not represent any departure from the Supreme Court authorities but was consistent with them.

This case reinforces the strict application of procedural rules in Zimbabwean civil procedure, particularly the mandatory requirements of Order 9 Rule 63(1) of the High Court Rules, 1971. It emphasizes that applications for rescission of default judgments must be filed within one month of knowledge of the judgment, and failure to do so requires a prior application for condonation. The judgment demonstrates the courts' intolerance for flagrant breaches of rules, especially where litigants are aware of the requirements having previously relied on them. It clarifies that subsequent High Court judgments have not departed from the established Supreme Court position on rescission applications, thereby maintaining consistency in the application of procedural law.