Arosume Property Development Private Limited v Godfrey Madiro Fungurani and Tsitsi Margaret Mukamba

The applicant and respondents entered into two separate agreements: one for the sale of an undeveloped immovable property (Stand 50 Carrick Creagh) for $20,000 signed on 29 September 2011, and a second for the construction of a villa on the property for $90,000 signed on 30 September 2011. The applicant alleged that the respondents defaulted in their payments and cancelled the agreements. The respondents then filed an application for specific performance to compel transfer of the property. A default order was granted against the applicant on 6 December 2017. The applicant did not apply for rescission within the required 30 days and sought condonation for late filing (approximately six months delay). The applicant claimed it was not served with the application because service was effected at 315 Carrick Creagh Road, Borrowdale, Harare - an address the applicant had left four years prior. The applicant became aware of the order on 4 July 2018 through a tenant at the old address and filed the application on 17 July 2018. The respondents averred proper service was effected and that they did not default in payment, attaching proof of payments.

• Whether condonation should be granted for the late filing of an application for rescission of a default judgment
• Whether there was valid service of the application for specific performance at the domicilium citandi et executandi chosen by the applicant
• Whether the applicant had a reasonable explanation for the default
• Whether the applicant had sufficient prospects of success on the merits to justify granting condonation despite wilful default
• Whether the respondents had fulfilled their payment obligations under the two agreements

Application for condonation of late filing of an application for rescission of judgment granted. Costs to be in the cause.

1. In applications for condonation, courts must exercise discretion to achieve fairness in the interests of justice, considering factors including degree of non-compliance, explanation for delay, prospects of success, and avoidance of unnecessary delay. 2. A party who elects domicilium citandi et executandi in a contract is bound by that choice, and service at the chosen address is valid even if the process is not actually received, unless the party has properly notified the other party in writing of a change of address as required by the agreement. 3. Service effected on a responsible person in the employ of a party at the domicilium constitutes valid service under Rule 42 B (1)(b). 4. Condonation may be granted even where there is a finding of wilful default with no reasonable explanation, if the applicant demonstrates strong prospects of success on the merits and the interests of justice favor allowing the matter to be determined on the merits rather than by default.

The court observed that it is an acceptable principle that a litigant should file an application as soon as he becomes aware of the offending order. The court also noted that service at domicilium has been held to be good in various circumstances, including where the address chosen was vacant ground, the party was known to be resident abroad, had abandoned the property, or could not be found. The court commented that where a defendant denies service was effected, he cannot do so by mere bare denial but must provide further information to confirm the veracity of his assertions.

This case is significant in Zimbabwean civil procedure for affirming the principle that condonation may be granted even in cases of wilful default where there is no reasonable explanation for the delay, if the applicant demonstrates strong prospects of success on the merits and the interests of justice favor allowing the matter to be heard. The case also reinforces the binding nature of domicilium citandi et executandi chosen by parties in contracts, following South African common law principles that service at the chosen address is valid even if not actually received, and that parties bear the burden of notifying counterparties in writing of any change of address. The judgment emphasizes that denials of service cannot be made by bare assertion but require supporting evidence.