Bishop Nehemia Govati Mutendi v The Trustees for the Time Being of ZCC Church and Others

The first and second respondents issued summons against the applicants in case number HC 12808/2012 on 2 November 2012. The applicants, through their legal practitioners Messrs Mutendi and Shumba, entered appearance to defend on 19 November 2012, well within the dies inducae. However, the case number was erroneously typed as HC 2808/2012 instead of HC 12808/2012, omitting the first digit. The appearance was duly served on the respondents' legal practitioners, Messrs Scanlen & Holderness, who then filed an application for summary judgment on 14 December 2012, which was opposed. On 22 May 2013, new legal practitioners (Messrs W.O.M. Simnago & Associates) assumed agency for the respondents. They withdrew the summary judgment application and filed an application for default judgment, claiming no appearance had been entered. This was granted on 5 June 2013. The applicants then sought a stay of execution on an urgent basis.

• Whether a default judgment should be granted where appearance to defend was entered but contained a typographical error in the case number
• Whether execution of a judgment erroneously granted should be stayed
• Whether the court can intervene mero motu when it becomes aware that a judgment was obtained by misleading the court
• Whether an application for rescission can be brought on an urgent basis

The provisional order was granted with the following interim relief: (1) Execution of the default judgment granted on 5 June 2013 in case No. HC 12808/2012 was stayed pending the filing and determination of an application for rescission of judgment; (2) The applicants were directed to file such rescission application within 10 days of the date of the order.

Where appearance to defend has been entered and served on the opposing party, and that party has accepted such appearance by filing a summary judgment application, a subsequent application for default judgment based on the claim that no appearance was entered is erroneously sought and erroneously granted, even if the appearance contained a minor typographical error in the case reference. The court has the power to stay execution of such a judgment pending a proper rescission application, in the interest of justice, and to prevent litigants from trifling with the court by claiming forfeits based on minor mistakes.

The court made important observations about professional conduct, noting that taking advantage of a slight typing mistake is "completely alien to the legal profession" and constitutes "trifling with the court in the extreme." The court also observed that the practice of not including previously filed documents (like the summary judgment application) when applying for default judgment, and not bringing their existence to the court's attention, is unacceptable. The court reiterated its previous complaints about "the unacceptable habit of litigants electing to trifle with the courts and in the process bring the courts to disrepute," citing Greenland v Zichire HH93/2013. The court also noted that an application for rescission of judgment cannot be brought on an urgent basis, as Rule 63(1) requires notice to other interested parties, and must be filed as a separate application.

This case is significant in Zimbabwean civil procedure for: (1) reinforcing the principle that courts will not allow litigants to claim forfeits based on minor typographical errors where proper notice was given; (2) affirming the court's inherent power to regulate its processes and intervene where judgments have been obtained by misleading the court; (3) emphasizing that the object of the court is to do justice between parties based on true facts, not to play games with technicalities; (4) demonstrating judicial willingness to look past procedural irregularities in urgent applications where substantial injustice has occurred; and (5) warning legal practitioners against taking advantage of minor mistakes to mislead the court.