Bernard Jaravaza v Trueness Mutamiri and MBCA Bank Limited and The Sheriff of Zimbabwe and The Registrar of Deeds

Applicant's immovable property (265 Hopley Township) was sold in execution to the first respondent in July 2018 pursuant to a judgment in case HC 334/15. Applicant objected to the sale under Rule 359(1) on grounds that the auction price was unreasonably low. The Sheriff postponed the hearing to 20 September 2018 to give applicant opportunity to furnish an agreement of sale with a willing purchaser and deposit equivalent to the open market value of US$55,000. When applicant failed to comply, the Sheriff confirmed the sale on 11 October 2018. Applicant filed a review application (HC 9763/18) seeking to set aside the confirmation. First respondent filed notice of opposition and opposing affidavit on 5 November 2018. On 7 January 2019, first respondent wrote to applicant reminding him to file answering affidavit or set the matter down, failing which dismissal would be sought. Applicant failed to respond. First respondent filed a chamber application (HC 339/19) seeking dismissal for want of prosecution, which was granted on 11 February 2019. Applicant then sought rescission of that dismissal order, blaming his lawyers (Bherebhende Law Chambers) for the default.

• Whether the applicant demonstrated good and sufficient cause for rescission of the judgment dismissing his review application under Order 9 Rule 63 of the High Court Rules 1971
• Whether the applicant provided a reasonable explanation for the default
• Whether the applicant demonstrated bona fides in the application to rescind
• Whether the applicant had prospects of success in the underlying review application
• Whether a party can escape the consequences of their legal practitioner's negligence and failure to comply with court rules
• Whether costs on a legal practitioner and client scale were justified

The application for rescission of judgment was dismissed. The applicant was ordered to pay the first respondent's costs on a legal practitioner and client scale.

A party seeking rescission of a default judgment must demonstrate good and sufficient cause consisting of: (i) a reasonable explanation for the default; (ii) bona fides of the rescission application; and (iii) a bona fide defence with prospects of success. A litigant cannot escape the consequences of their legal practitioner's negligence, lack of diligence, or wilful disdain for court rules - such conduct by the legal practitioner is treated as conduct of the party themselves. Flagrant breaches of court rules without acceptable explanation may result in refusal of the indulgence sought, whatever the merits, even where blame lies solely with the attorney. Once a sale in execution has been properly confirmed by the Sheriff, courts are reluctant to interfere given the need for finality in execution proceedings. The rights acquired by a purchaser in execution cannot be disturbed absent sufficient proof that it would be unfair for them to continue enjoying those rights.

The court observed that there must be a limit beyond which a litigant cannot escape the results of their attorney's lack of diligence, as considerations of mercy should not become an invitation to laxity in observing court rules. The court noted that the applicant's conduct in filing the rescission application even out of time without seeking condonation amounted to an abuse of the court's process. The court commented that the applicant had been granted multiple opportunities - first to find an alternative purchaser, then to file an answering affidavit or set down the review application - but failed to utilize any of them. The court expressed that this was a case that called for costs on a higher scale given that the first respondent had been unnecessarily put out of pocket by the applicant's repeated failures.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the strict requirements for rescission of default judgments and the need for 'good and sufficient cause'; (2) the principle that a litigant cannot escape the consequences of their legal practitioner's negligence and failure to observe court rules; (3) the importance of finality in execution proceedings and the reluctance of courts to interfere with properly confirmed sales in execution; (4) the circumstances justifying costs on a legal practitioner and client scale where there has been abuse of court process and repeated failures to comply with procedural requirements. The judgment demonstrates the courts' intolerance for non-compliance with rules and emphasizes that considerations of mercy should not become an invitation to laxity in observing court procedures.