Bvekwa Legal Practice v Toll Free Zimbabwe (Pvt) Ltd t/a Vascor

The applicant, a legal firm, carried out work for the respondent company and billed the respondent. The respondent denied liability, leading to proceedings in HC 7956/2014. The matter progressed to pre-trial stage where the court ordered discovery/verification of 36 files on 2 June 2015, with parties scheduled to appear on 15 June 2015 at 9:00am. The applicant's legal practitioner mistakenly recorded the time as 9:30am in his diary and arrived at court at 9:25am. By that time, the respondent had already obtained default judgment. The applicant's legal practitioner sought consent from the respondent to set aside the default judgment but was refused. The applicant then filed this application for rescission of the default judgment.

• Whether the applicant's default was wilful
• Whether the applicant had a bona fide defence in the main matter
• Whether the applicant had reasonable prospects of success in the main matter
• Whether 'good and sufficient cause' existed for rescission of the default judgment
• Whether costs on a legal practitioner and client scale should be awarded
• Whether the respondent's legal practitioner acted ethically in refusing to consent to setting aside the default judgment

1. The application is granted. 2. The respondent is to pay the applicant's costs on a legal practitioner/client scale.

A delay of 25 minutes resulting from a genuine diary error does not constitute wilful default where the applicant has consistently prosecuted its claim diligently. 'Good and sufficient cause' for rescission exists where: (i) the default was not wilful but resulted from genuine mistake; (ii) the application is bona fide as evidenced by timely filing and vigorous prior prosecution of the claim; and (iii) reasonable prospects of success exist in the main matter. Legal practitioners have a professional duty to exercise courtesy and give fair warning before seizing upon technical points or obtaining default judgments where the opponent's delay is minimal and inadvertent. Failure to do so may result in punitive costs orders on a legal practitioner/client scale.

The court expressed dismay at the respondent's legal practitioner's conduct, stating that she 'snatched' a judgment from the applicant and that from an ethical point of view, a modicum of patience should have been exercised before taking judgment. The court observed that the respondent's legal practitioner seized upon a chance opportunity when it presented itself. The court also commented that it would be counter-intuitive to make a decision interrupting a court-ordered discovery process. The judge noted that the courtesy of giving fair warning to other lawyers before taking technical points is 'one rather jealously guarded by the profession' and emphasized that professional ethics require such warnings. The court indicated that public policy considerations regarding finality in litigation should remind litigants that discourtesies creating unnecessary work for the court may attract higher costs orders.

This case reinforces the principle that courts have wide discretion in rescission applications and will look beyond technical defaults to the substance and justice of the matter. It emphasizes the importance of professional courtesy among legal practitioners, particularly the duty to give fair warning before taking technical points or obtaining default judgments where the opposing party's delay is minimal and inadvertent. The case demonstrates that courts will use punitive costs orders to sanction unreasonable conduct by legal practitioners that unnecessarily burdens the court system. It also illustrates the application of the Songore test for rescission and confirms that a brief delay resulting from genuine error, coupled with a consistent record of diligent prosecution of the matter, will not constitute wilful default.