This chamber application for dismissal of a matter for want of prosecution was heard on 29 February 2024. The matter that the applicants wanted dismissed was an application for rescission of a default judgment filed by the first respondent herein under HC 679/23. More
The applicant issued summons against the respondent for payment of $29 400 being arrear rentals in terms of a lease agreement between the parties, eviction of the respondent and all those claiming through him, from no 3 Bodle Avenue, Eastlea, Harare, holding over damages at the rate of $1 200 per month with effect 1 May 2017 to date of vacation, prescribed interest thereon and costs of suit on a legal practitioner and client scale. Respondent entered appearance to defend on 16 May 2017, whereupon the applicant applied for summary judgment on 17 May 2017. More
On 29 October 2008 the applicant and the first respondent entered into a written agreement in terms of which the applicant advanced to the first respondent the sum of one hundred thousand United States dollars (the equivalent then of two hundred Old Mutual Ordinary Shares, listed on the Stock Exchange). As a return on this investment, it was agreed that the applicant would be entitled to thirty percent of the capital sum invested “each and every month” regardless of the performance of the investment. The thirty percent return was to accrue without deduction each and every month the capital sum... More
This is an application for a default judgment. My brother judge, BHUNU J, and I raised a query. We felt the claim did not disclose a cause of action. The Plaintiff is in effect claiming specific performance yet, by his own admission, he was in breach of his side of the contract. More
An exception and a special plea fall under the genus “Alternatives to pleading to the merits; forms”. Whilst the stated matter is the case, the two are not the same. They are markedly different from each other.
Herbestein & Van Winsen articulate the difference which exists between a special plea and an exception. They do so in The Civil Practice of the Supreme Courts of South Africa, 5th ed Volume 1 pp 599-600. More
