Adenium Transport Services (Pvt) Limited v Isadora Trading (Pvt) Limited and Gladercom Enterprises (Pvt) Limited

Isadora Trading (first respondent) sued Adenium Transport Services (applicant) and Gladercom Enterprises (second respondent) in case HC 3336/21 for payment of US$24,626.00, US$36,520.00 and US$6,000.00 arising from a freight contract. Isadora engaged Gladercom as freight agent to transport and clear a consignment from China to Zimbabwe. Gladercom contracted Adenium to transport the consignment from South Africa to Zimbabwe. The consignment was hijacked in South Africa and never reached Zimbabwe. Adenium filed a plea denying liability, stating it had no privity of contract with Isadora and that its insurer CBZ Insurance paid ZWG 535,500.00 which was tendered to Isadora but refused. The matter proceeded to pre-trial conference stage. On 24 March 2023 and 30 March 2023, Adenium and its legal practitioners Masawi and Partners failed to attend the pre-trial conference before Manzunzu J. On 5 July 2023, Chinamora J granted default judgment against Adenium. Adenium became aware of the judgment on 12 October 2023 when the Sheriff served the order together with a writ of execution and attached a Scania horse truck. Adenium then applied for rescission of the default judgment under HC 6786/23 and urgent stay of execution under HC 6797/23.

• Whether Adenium's explanation for default in attending the pre-trial conference was reasonable
• Whether Adenium had a bona fide defence with prospects of success to the claim
• Whether the application for rescission of default judgment should be granted
• Whether the writ of execution should be set aside
• Whether there were irregularities in the execution process

1. The default judgment granted on 5 July 2023 in case HC 3336/21 is rescinded. 2. Adenium (second defendant) is granted leave to continue its defence. 3. The Registrar shall relist case HC 3336/21 for pre-trial conference in relation to plaintiff and second defendant. 4. The writ of execution in case HC 3336/21 is set aside and no further execution shall be levied until finalisation of the case or unless the court orders otherwise. 5. Costs for both HC 6786/23 and HC 6797/23 shall be costs in the cause in HC 336/21.

A default judgment will be rescinded where the applicant establishes: (1) a reasonable explanation for the default (including being let down by legal practitioners who failed to notify of court dates, particularly where the party had actively participated in proceedings up to that point); (2) bona fides of the rescission application; and (3) a bona fide defence with prospects of success. Where a plaintiff fails to properly plead the basis of liability (whether in contract, delict or otherwise) and the defendant raises defences including force majeure (such as hijacking) and insurance coverage, this constitutes a defence with good prospects of success. The test from Stockil v Griffiths 1992(1) ZLR 172 SC must be applied cumulatively.

The court observed that it would be illogical to require legal practitioners who are no longer representing a party and who were themselves in default to file supporting affidavits, stating this is not a rule of thumb and circumstances of each case must be considered. The court noted irregularities in the execution process where the notice of seizure and attachment pre-dated both the writ of execution and the warrant of seizure, commenting that these contradictory documents would need explanation. The court also commented that requiring details of the basis of liability to be properly pleaded is important, and noted that costs orders can cure prejudice to the other party in rescission applications.

This case demonstrates the Zimbabwean courts' willingness to grant rescission of default judgment where a party can show it was let down by legal practitioners who failed to attend court without notifying their client, provided the applicant has a bona fide defence with prospects of success. The case also illustrates the application of the Stockil v Griffiths test for rescission and reaffirms principles regarding carriers' liability under Cotton Marketing Board v National Railways of Zimbabwe. It emphasizes that courts will look at the overall conduct of parties throughout litigation to determine whether default was wilful, and highlights the importance of proper pleading of the basis of liability in claims.