Noreen Sibanda and Another v Julius Mposelwa Ndlovu

The respondent instituted eviction proceedings against the applicants in case HC 303/07 for eviction from premises at 5551 Mkhosana Township, Victoria Falls. The trial commenced in May 2010 but could not be completed and was postponed sine die. On 21 July 2010, the Assistant Registrar allocated trial dates (2-3 November 2010) by letter to the respondent's legal practitioners and copied to Cheda and Partners, who had no actual interest in the matter. The applicants were represented by Dube and Partners at the time. No notice of set down was filed by either party as directed by the Assistant Registrar. When the matter came up for continuation of trial on 2 November 2010, the applicants were in default and Ndou J entered default judgment against them. The applicants sought rescission of the default judgment, claiming they were never served with notice of set down and were unaware of the trial date.

• Whether good and sufficient cause existed for the rescission of the default judgment in terms of Rule 63(2) of the High Court Rules
• Whether the applicants were in wilful default when they failed to appear on 2 November 2010
• The proper procedure for setting down matters for trial under Rule 215 of the High Court Rules
• Whether the requirement to file a consent to set down created procedural complications
• The consequences of failure to file heads of argument within the prescribed time under Rule 238(2) of the High Court Rules

The court ordered: (1) The default judgment entered on 2 November 2010 is rescinded; (2) The parties are granted leave to apply for fresh trial dates; (3) The respondent shall bear the costs of the rescission application.

For a default judgment to be rescinded under Rule 63(2) of the High Court Rules, an applicant must establish good and sufficient cause by demonstrating: (i) a reasonable explanation for the default; (ii) bona fides in bringing the rescission application; and (iii) an arguable case on the merits with prospects of success. These factors must be considered in conjunction with each other. Where an applicant was never served with notice of set down and was genuinely unaware of the trial date, the default is not wilful and good and sufficient cause exists for rescission. Legal practitioners are required to strictly comply with the High Court Rules, including the timeous filing of heads of argument as prescribed by Rule 238(2), failing which they may be barred from being heard.

The court made critical observations about the Assistant Registrar's practice of requiring parties to file a consent to set down, noting that Rule 215 only requires the registrar to allocate a date and notify the parties, with no further action required. Mathonsi J stated that requiring consent to set down is "undesirable as it opens up a pandora's box for parties to contest the court date on the basis that they did not consent to set down" and that this requirement "creates a problem." The court also expressed strong concern about the growing trend of legal practitioners disregarding procedural rules, particularly the rules governing filing of heads of argument, warning that "this cannot be allowed to continue" and reminding practitioners that "the disregard of the rules has now become fashionable" but emphasizing that the court's rules "shall forever remain sacrosanct."

This case is significant for establishing important principles regarding rescission of default judgments in South African civil procedure. It reinforces the three-part test for "good and sufficient cause" under Rule 63(2) and emphasizes that default judgment should not be granted where parties have not been properly notified of trial dates. The judgment also serves as an important reminder to legal practitioners about strict compliance with procedural rules, particularly regarding the filing of heads of argument within prescribed timeframes under Rule 238(2). The case highlights the importance of proper service and notification in civil proceedings to ensure fairness and natural justice.