Dhliwayo v Matukutire (326 of 2023) [2023] ZWHHC 196 (26 May 2023)

Dhliwayo v Matukutire (326 of 2023) [2023] ZWHHC 196 (26 May 2023)

The applicant provided a reasonable explanation for the default, supported by affidavits and Covid-19 disruptions. The respondent's plea of res judicata was rejected as the application for rescission was distinct from the prior application for upliftment of bar. The applicant's defence on the merits raised triable issues regarding payment of the purchase price. Cumulatively, good and sufficient cause for rescission was established.

Citation
[2023] ZWHHC 196
Parties
Applicant: Sinikiwe Dhliwayo; Respondent: John Tranos Matukutire
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
26 May 2023
Case Number
326 of 2023
Procedural Posture
Application for Rescission of Default Judgment / Ruling on Opposed Application for Rescission
Outcome
Application for rescission of default judgment granted
Legal Topics
Rescission of Judgment, Default Judgment, Agreement of Sale, Res Judicata
Source Language
English
Civil Procedure Contract Law Rescission of Judgment Default Judgment Agreement of Sale Res Judicata

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Parties

Sinikiwe Dhliwayo

Applicant

John Tranos Matukutire

Respondent

Procedural Posture

Application for Rescission of Default Judgment / Ruling on Opposed Application for Rescission

Legal Issues

  1. 1 Whether the applicant has shown good and sufficient cause for rescission of default judgment
  2. 2 Whether the matter is res judicata
  3. 3 Whether the applicant paid the full purchase price under the agreement of sale

Ratio Decidendi

The applicant provided a reasonable explanation for the default, supported by affidavits and Covid-19 disruptions. The respondent's plea of res judicata was rejected as the application for rescission was distinct from the prior application for upliftment of bar. The applicant's defence on the merits raised triable issues regarding payment of the purchase price. Cumulatively, good and sufficient cause for rescission was established.

Court Disposition

Application for rescission of default judgment granted

Orders

  • Default judgment in HC 1816/21 rescinded
  • Applicant deemed to have filed heads of argument timeously