Bernard Stephens Ncube v Rachel Makiwa

The applicant instituted action proceedings in July 2002 (case HC 1769/02) claiming joint ownership of property at No. 43 Southway, Burnside, Bulawayo, which he alleged was acquired during his customary marriage to the respondent in 1984 through a universal partnership. On 17 July 2018, when the matter was set down for Pre-Trial Conference (PTC) hearing after 16 years of litigation, the applicant did not attend. His legal practitioner appeared but could not explain his absence, had not sought indulgence to proceed, and was unaware that the client's attendance was required. Default judgment was granted in favor of the respondent. The applicant subsequently applied for rescission of the default judgment under Order 9 Rule 63, explaining that: (1) he did not receive the email advising of the hearing date due to server problems at his law firm; (2) his brother had died and he was attending funeral arrangements on 17 July 2018, identifying the body at Nyaradzo Funeral Services on that date; and (3) a lawyer from his firm did attend the PTC. The respondent opposed, arguing the property was purchased solely by her brother as a gift to her after the customary union had ended, and that the applicant had no merit in his claim.

• Whether the applicant's default was willful and whether he showed good and sufficient cause for his non-attendance at the Pre-Trial Conference
• Whether the applicant had established prima facie bona fide prospects of success in the main claim to justify rescission of the default judgment
• The applicable test and requirements for rescission of a default judgment under Order 9 Rule 63
• Whether the legal practitioner's failure to properly conduct the PTC and seek indulgence should be visited upon the lay litigant client

1. The application for rescission of the default judgment granted in HC 1769/02 on 17 July 2018 is granted. 2. The applicant shall apply for a new set down for the Pre-Trial Conference hearing within ten (10) days of this order. 3. There shall be no order as to costs.

For rescission of a default judgment to be granted, an applicant must satisfy a two-pronged test: (1) establish that the default was not willful by showing good and sufficient cause for non-attendance; and (2) demonstrate bona fide prospects of success in the main claim (or a bona fide defence if defendant). Good and sufficient cause requires a supremely just cause of ignorance free from all blame, supported by credible evidence establishing on a balance of probabilities the truth of the explanation. However, where default results primarily from legal practitioners' failure to comply with court rules and procedures (such as not seeking indulgence for a client's absence or not understanding procedural requirements), such professional bundling cannot be visited upon the lay litigant who is prima facie blameless. For prospects of success, it is sufficient if the applicant sets out averments which, if established at trial, would entitle him to the relief asked for - he need not show that probabilities are actually in his favour. Where there is credible evidence supporting competing claims on material issues (such as ownership of property), the matter should be ventilated and decided on the merits rather than disposed of summarily on default.

The court made several non-binding observations: (1) There is no such thing as an automatic postponement when a matter is set down before a Judge - a party desiring postponement must advance cogent reasons and seek the court's indulgence. (2) The court expressed strong disapproval of the 16-year delay in prosecuting the claim, describing the applicant's pace as that of a "chameleon" and causing unwarranted cost and anxiety to the respondent. (3) The court warned the applicant that it would not brook further tardiness, using the colloquial expression that "he has had his merry go round but the music has stopped" and that when that time comes, the court will not help the sluggard. (4) The court noted that in some cases, judges have exonerated litigants and slapped legal practitioners with costs de bonis propris for their bundling, though it did not do so in this case. (5) The court observed that although successful, the applicant could not hope for an award of costs given the circumstances of the case.

This case is significant in Zimbabwean civil procedure law as it clarifies the application of the rescission of judgment principles, particularly: (1) It reinforces that legal practitioners' errors and failures to comply with court rules should not ordinarily be visited upon lay litigants who are prima facie blameless for their counsel's bundling. (2) It demonstrates the court's approach to balancing competing interests - the need for finality in litigation (particularly in cases dragging for 16 years) against the fundamental principle that matters should be decided on their merits with both parties heard. (3) It provides guidance on the evidential requirements for establishing 'good and sufficient cause' - requiring credible, documentary-supported explanations that negate willful default. (4) It illustrates the standard for bona fide prospects of success - applicants need not show probabilities are in their favour, only that averments if established at trial would entitle them to relief. (5) It serves as a warning about the limits of judicial indulgence for dilatory litigants, while still preserving access to justice where genuine explanations exist.