Mushonga & 2 Ors v Musandinane (HC 452 of 2019; HMA 32 of 2020) [2020] ZWMSVHC 32 (15 July 2020)

Mushonga & 2 Ors v Musandinane (HC 452 of 2019; HMA 32 of 2020) [2020] ZWMSVHC 32 (15 July 2020)

A fatally defective application for rescission, not compliant with the mandatory rules, cannot be amended by substitution without leave of court. Rule 4C does not permit the wholesale replacement of a null application. The proper course is to strike the matter off the roll, not dismiss it.

Citation
[2020] ZWMSVHC 32
Parties
Applicant: Robert Derera Mushonga; Applicant: Pascal Takaidza Mushonga; Applicant: Jeremiah Moyana; Respondent: Effort Musandinane
Court
Masvingo High Court
Jurisdiction
Zimbabwe
Judgment Date
15 July 2020
Case Number
HC 452 of 2019 ; HMA 32 of 2020
Procedural Posture
Opposed Application / Application for Rescission of Default Judgment
Outcome
Application struck off the roll with costs on the legal practitioner and client scale.
Legal Topics
Rescission of Judgment, Default Judgment, Non Compliance With Rules, Costs
Source Language
English
Civil Procedure Rescission of Judgment Default Judgment Non Compliance With Rules Costs

Case Brief

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Parties

Robert Derera Mushonga

Applicant

Pascal Takaidza Mushonga

Applicant

Jeremiah Moyana

Applicant

Effort Musandinane

Respondent

Procedural Posture

Opposed Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants could amend a defective application for rescission by substituting it with a compliant one without leave of court
  2. 2 Whether Rule 4C of the High Court Rules can be invoked to condone or salvage a fatally defective application

Ratio Decidendi

A fatally defective application for rescission, not compliant with the mandatory rules, cannot be amended by substitution without leave of court. Rule 4C does not permit the wholesale replacement of a null application. The proper course is to strike the matter off the roll, not dismiss it.

Court Disposition

Application struck off the roll with costs on the legal practitioner and client scale.

Orders

  • Application is struck off the roll.
  • Applicants to pay costs on the legal practitioner and client scale.