Alshams Global BVI Limited v Equity Properties Private Limited and The Registrar of Deeds

On 24 July 2017, under case HC 3254/17, Chigumba J granted the first respondent leave to serve summons on the applicant through their legal practitioners Dube Manikai and Hwacha. On 16 March 2018, the first respondent filed an application for vindication against the applicant and served it on Dube Manikai and Hwacha. However, at that time, Dube Manikai and Hwacha were not representing the applicant. They disowned the receipt and the application was forwarded to the applicant's actual legal practitioners, Danziger and Partners, on 19 March 2018. Danziger and Partners filed opposing papers on 4 April 2018. The first respondent applied for default judgment claiming the applicant filed late (calculating from 16 March instead of 19 March). On 6 June 2018, Munangati-Manongwa J granted default judgment in favor of the first respondent, ruling that the applicant's papers were not properly before her. The applicant sought rescission of this default judgment under Rule 449(1)(a).

• Whether the dies induciae (time limit for filing opposing papers) should be calculated from 16 March 2018 (service on Dube Manikai and Hwacha) or 19 March 2018 (service on Danziger and Partners)
• Whether the applicant's opposing papers were filed timeously and were properly before the court
• Whether Rule 449(1)(a) or Rule 63 applies to rescission of the default judgment
• Whether the default judgment was granted erroneously

1. The order granted by the court on 6 June 2018 in case No. HC 2463/18 is rescinded as it was granted in error. 2. The first respondent to pay the costs.

Under Rule 449(1)(a), once a court is satisfied that a default judgment was erroneously granted in the absence of a party affected thereby, rescission should follow. An "error" for purposes of Rule 449(1)(a) exists where a judge was unaware of facts which, had the judge been made aware of them, would have prevented the making of the judgment. The dies induciae for filing opposing papers runs from the date of proper service on the actual legal practitioners on record, not from service on legal practitioners who are not representing the party. Where opposing papers are filed timeously and are properly before the court, but the court is not informed of their existence by the party seeking default judgment, the resulting default judgment is granted erroneously and must be rescinded. The requirements for rescission under Rule 449(1)(a) are: (1) the default judgment must have been erroneously sought or granted; (2) such judgment must have been granted in the absence of the applicant; and (3) the applicant must be affected by the judgment.

The court noted that the question of who physically delivered the application from Dube Manikai and Hwacha to Danziger and Partners (whether the first respondent or Dube Manikai and Hwacha themselves) was irrelevant to the determination. The court also made observations regarding the duty of legal practitioners applying for default judgment to inform the court of all material facts, including the existence of opposing papers, and suggested that failure to do so could potentially amount to dishonesty or fraud (though the court did not make a definitive finding on this point or grant the applicant's request for costs on a higher scale against the legal practitioners personally).

This case reinforces the application of Rule 449(1)(a) of the High Court Rules in Zimbabwe for rescission of default judgments granted in error. It establishes important principles regarding the calculation of dies induciae (time limits) from the date of proper service, particularly when service is initially attempted on legal practitioners who are not on record. The case demonstrates that where a court grants default judgment without being informed of properly filed opposing papers, this constitutes a fundamental error warranting rescission. It also clarifies the difference between Rule 449(1)(a) (rescission for error) and Rule 63 (rescission for other grounds), holding that where judgment was granted erroneously due to incomplete information before the court, Rule 449(1)(a) is the appropriate remedy.