The respondent instituted defamation proceedings against the applicant in January 2011 under Case No. HC 275/11. The applicant entered appearance and filed a plea. On 22 November 2011, the applicant's defence was struck out following his default at the pre-trial conference. The applicant then filed an application (HC 12658/11) on 20 December 2011 to set aside that order, which was dismissed on 16 November 2012. On the same day, judgment was granted against the applicant for US$10 million in damages for defamation, as the matter proceeded as an unopposed matter. The applicant's legal practitioner was present when the order for damages was given. The applicant became aware of the default judgment one day after it was granted and filed the instant application within seven days (on 23 November 2012) seeking to set aside the default judgment under Order 9 Rule 63 of the High Court Rules, 1971. The applicant's explanation was that he was not served with the notice of set down at his correct address and was unaware of the date.
1. The default judgment granted in Case No. HC 275/11 on 16 November 2012 was set aside. 2. The applicant's plea in Case No. HC 275/11 was reinstated and the matter was to proceed to the pre-trial conference stage. 3. Costs were ordered to be in the cause.
When determining whether 'good and sufficient cause' exists to set aside a default judgment under Order 9 Rule 63(2), the court must consider three factors: (a) the reasonableness of the applicant's explanation for the default; (b) the bona fides of the application to rescind; and (c) the bona fides of the defence on the merits and whether it carries some prospect of success. These factors must be considered not only individually but also in conjunction with one another and with the application as a whole, without unnecessarily fettering the court's discretion through a rigid approach. A defence with prospects of success must disclose facts which 'cannot be rejected out of hand and warrant investigation'. The principle of finality in litigation must be balanced against the need to do justice between the parties.
The court observed that awards for damages for defamation in Zimbabwe since the introduction of the multi-currency system have been significantly lower than US$10 million, citing awards ranging from US$2,000 to US$7,000 in comparable cases. The court noted that a full trial would enable proper assessment of damages taking into account all relevant factors. Zhou J also remarked that even where service is effected at a party's domicilium citandi et executandi, courts have accepted as reasonable an explanation that the party did not actually see the papers, citing Stockil v Griffiths as authority for this proposition.
This case reinforces the Zimbabwean courts' discretionary approach to rescission of default judgments under Order 9 Rule 63, emphasizing that the court should not rigidly apply the 'good and sufficient cause' test but rather weigh all relevant factors holistically. The judgment demonstrates the court's willingness to balance the principle of finality in litigation against the interests of justice, particularly where a prima facie defence exists and the default was not deliberate. The case also provides comparative guidance on quantum of damages in defamation cases in Zimbabwe's multi-currency era, indicating that awards in the range of US$2,000 to US$7,000 are typical, making the US$10 million award in the default judgment facially excessive and warranting further investigation. The judgment clarifies the scope of res judicata and issue estoppel, holding that different defaults at different stages require separate consideration.