C.G. Tommy v Michael John Gunn and Lindy Gunn

The respondents instituted action in the Magistrates' Court seeking eviction of the appellant and payment of arrear rentals in respect of property number 4 Clocolan Road, Burnside, Bulawayo. The matter was set down for a pre-trial conference which the appellant and her legal practitioner failed to attend. The respondents obtained leave to file an application to strike out the appellant's defence, which was granted by the magistrate on 8 January 2018. The appellant alleged she had purchased the property from the second respondent together with the late Richard Roberts for BWP41,000, but there was no written agreement of sale. Arrear rates had accrued to the tune of US$1,500 as at December 2016. The Estate of the late Richard Roberts had been wound up with no indication that the property was part of the estate. The first respondent remained the registered owner of the property.

• Whether the appellant was in willful default in failing to attend the pre-trial conference
• Whether the appellant had a bona fide defence to the respondent's claims for eviction and arrear rentals
• Whether the magistrate was correct in striking out the appellant's defence

The appeal was dismissed with costs.

The binding legal principles established are: (1) The unavailability of a legal practitioner does not absolve a litigant from their personal obligation to attend court to explain the absence and protect their interests; (2) Willful default occurs when a defendant, with full knowledge of the hearing date and the risks of non-attendance, deliberately decides not to appear; (3) A party seeking to overturn the striking out of their defence must satisfy the court both that they were not in willful default and that they have a bona fide defence to the action; (4) A bona fide defence requires substantive supporting evidence, not mere unsupported allegations, particularly in matters involving property rights where written agreements and registration are determinative.

The court made non-binding observations expressing its disapproval of the appellant's conduct, stating that "this appeal has been made for the sole purpose of delaying and frustrating finalisation of this matter" and that "this court takes a dim view at the appellant's conduct." These comments reflect judicial concern about vexatious litigation and abuse of court processes but are not part of the binding ratio of the decision.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the duty of litigants to attend court personally when their legal practitioners are unavailable, rather than relying solely on their lawyers; (2) the application of the test for willful default as established in Newman Pvt Ltd v Marks; and (3) the requirement that appellants must demonstrate both absence of willful default and a bona fide defence when challenging the striking out of pleadings. The case also illustrates the courts' intolerance of vexatious appeals designed merely to delay proceedings.