DELWARD ENGINEERING (PVT) LTD & ANOR v WARARA AND ASSOCIATES 2016 (2) ZLR 182 (H)

Flynote

Practice and procedure: " process " service of " summons dies induciae " summons may be served with or without particulars of claim " 10 days added to the time for filing a plea only after appearance to defend served " rescission under r 449 limited to cases where there has been error or oversight by court

Headnote

Default judgment was granted after the defendant had failed to enter an appearance to defend 10 days after service of a provisional sentence summons and declaration. The defendant applied to court for rescission of judgment in terms of r 449, contending that it was allowed 20 days to enter an appearance to defend. It was common cause that the appearance to defend had been served after the ten days normally allowed for an appearance to defend. In the majority of cases, where a party does not proceed in terms of r 20 (i.e. summons claiming provisional sentence), the practice is to file summons and declaration together as provided for under rule 113. It is only then that a further 10 days are added to the time for filing a plea (not for filing appearance to defend). Held, that r 119 permits a plaintiff to serve both the summons and the declaration upon the defendant at the same time. Once that has happened, the defendant is entitled to an extra ten days within which to file his plea, exception or special plea. The defendant is expected to file his or her appearance to defend within ten days from date of service of the summons. Then within the next extra ten days the defendant is expected to file his or her plea. The proviso only gives a period of 20 days to the defendant in which to file a plea, exception or special plea. The proviso does not extend the dies induciae within which to enter appearance to defend.