Qalisa Investment (Pvt) Limited v Diane Margaret Drummond

The respondent issued summons against the applicant on 13 June 2003 under Case No. HC 1123/03 seeking an order directing the applicant to complete construction of residential premises on Lots 83 and 84 of Bulawayo Golf Club and to transfer the property to herself in terms of an agreement dated 18 August 2001. The applicant entered appearance to defend but did not file a plea. After protracted negotiations failed, the respondent issued a notice of intention to bar in September 2007, and a bar was effected on 19 October 2007. An application for default judgment was filed on 4 December 2007 and served on the applicant's legal practitioners, but the applicant did not respond. Default judgment was entered on 19 May 2008. The court order was served on the applicant on 7 January 2010 and again on 17 February 2010. The applicant only filed applications for condonation and rescission of judgment on 24 May 2010, several months after service of the order.

• Whether the applicant's explanation for the delay in filing the application for rescission of judgment was satisfactory
• Whether the applicant demonstrated prospects of success on the merits
• Whether condonation for late filing of the rescission application should be granted
• Whether the rescission of default judgment application should succeed

Both applications dismissed with costs. The application for condonation in HC 979/10 and the application for rescission of judgment in HC 980/10 were dismissed with costs.

An application for condonation of late filing must precede the main application for rescission of default judgment, and both must be properly constituted. When seeking condonation for non-compliance with rules of court, a party must provide: (a) evidence that the delay was not inordinate; (b) a reasonable and satisfactory explanation for the delay; (c) good prospects of success on the merits; and (d) consideration of prejudice to the other party. A party served with a court order cannot justify delay merely because their legal practitioners misplaced a file, as the file could be reconstructed. New arguments not contained in the papers cannot be raised for the first time in heads of argument or oral submissions, as this amounts to impermissible leading of evidence from the bar.

The court noted that even if it had proceeded to consider the rescission application in HC 980/10, it would have found no prospects of success. The court observed that the applicant's explanation regarding the death of the handling legal practitioner and misplacement of the file was insufficient, as parties cannot simply sit on court orders served upon them due to administrative issues at their legal representatives' offices. The court also commented that arguments raised by counsel regarding the property having been sold, which would render the order incapable of performance, could not be considered as they were not raised in the papers filed before the court.

This case reinforces important principles in Zimbabwean civil procedure regarding condonation applications and rescission of default judgments. It emphasizes the strict requirement that condonation must precede any application for rescission when filed out of time, and that parties must provide satisfactory explanations for delays and demonstrate prospects of success. The case also reinforces the prohibition against raising new issues not contained in the papers or leading evidence from the bar. It serves as a cautionary tale about the consequences of failing to comply with procedural rules and deadlines.