Archford Dube v Leeroy Reece

The respondent sued the applicant for $46,000 being monies advanced for a purported mining venture. The applicant allegedly failed to account for the money and converted it to his own use. Summons were issued in September 2013. A notice of set down for a pre-trial conference was sent to applicant's lawyers in August 2016 for a conference scheduled on 15 September 2016. The applicant's lawyer incorrectly advised him the conference was on 18 September 2016. The applicant, who was resident in England, missed his connecting flight from Dubai and only arrived on 16 September 2016 to find a default judgment had been granted against him on 15 September 2016. At the time of the pre-trial conference, the applicant had filed no papers, no discovery affidavit, no summary of evidence, and no pre-trial issues despite the notice being sent in August 2016 and a discovery notice having been sent to his lawyers on 28 January 2014. The applicant then applied for rescission of the default judgment.

• Whether there was good and sufficient cause to rescind the default judgment
• Whether the applicant's explanation for the default was reasonable
• Whether the application for rescission was made bona fide
• Whether the applicant had a bona fide defence on the merits with some prospect of success
• Whether compliance with discovery and pre-trial conference procedures had been satisfied

The application for rescission of the default judgment was dismissed with costs on an ordinary scale.

For a default judgment to be rescinded under Rule 63 of the High Court Civil Rules 1971, the applicant must demonstrate: (1) a reasonable explanation for the default; (2) bona fides in the rescission application; and (3) a bona fide defence on the merits with prospects of success. All three requirements must be satisfied on a holistic analysis. By the time a pre-trial conference is held, the discovery process under Order 24 must be completed, otherwise the pre-trial conference becomes meaningless. Persistent failure over years to comply with discovery obligations and provide any evidence to support a defence demonstrates lack of bona fides and absence of a meritorious defence, warranting dismissal of the rescission application even where the initial default was not wilful.

The court observed that there are procedures available for signing affidavits outside the country, so residence abroad cannot excuse failure to file discovery affidavits. The court noted that if documents are properly discovered and provided upon request, most cases are able to be settled after such discovery. The court commented that a pre-trial conference is not called for a party to start the process of discovery or to begin compliance with pre-trial processes - it is designed to curtail issues referred to trial after discovery is complete. The court emphasized that after discovery, each party is truly familiar with the strength or weakness of their case. The court noted that the nature of the applicant's defence was such that he needed to produce proof of his assertions - the argument that it was for the trial court to decide whether there was a partnership and proper use of money needed to have some foundation in evidence.

This case reinforces the strict approach Zimbabwean courts take to rescission applications where there has been persistent non-compliance with procedural requirements, particularly discovery obligations. It emphasizes that pre-trial conferences presuppose completion of discovery processes and that parties must demonstrate not just a non-wilful default, but genuine bona fides in their defence and compliance with court procedures. The case illustrates that even where a party can show they did not deliberately miss a hearing, failure to comply with discovery and evidence preparation over an extended period will defeat a rescission application on the basis of lack of bona fides and lack of merit in the defence.