Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi and Keroni Tevera v Olshevic Investments (Pvt) Ltd

The respondent (landlord) issued summons against the appellants on 19 September 2018 for arrear rentals, cancellation of lease agreement, eviction and holding over damages. The first appellant was renting the respondent's property. The second appellant was the director of the first appellant. Both the second and third appellants signed as co-sureties and co-principal debtors. The written lease agreement expired but was not renewed, yet the first appellant remained in occupation as a statutory tenant. The matter was set down for trial on 22 July 2019 at the appellants' instance. The matter had been postponed six times previously at the appellants' request, who were constantly changing lawyers. On the trial date, neither the appellants nor their legal practitioner attended court at 8:30 am. The second appellant claimed she was at another legal practitioner's office (Mr Chikono) dealing with a High Court matter scheduled for 9 am, and arrived at the Magistrates Court at 8:39 am to find default judgment already granted. The Magistrates Court dismissed the appellants' application for rescission of the default judgment, finding wilful default and no bona fide defence. The appellants appealed.

• Whether the appellants were in wilful default when they failed to attend the trial on 22 July 2019
• Whether the appellants had a bona fide defence to the respondent's claim for arrear rentals and eviction
• Whether the Magistrates Court erred in dismissing the application for rescission of default judgment
• Whether a suretyship remains valid after the expiration of the lease agreement when the tenant becomes a statutory tenant

The appeal was dismissed with costs.

1. A party is in wilful default when they have full knowledge of the hearing date and time, are aware of the risks of non-attendance, yet freely decide not to appear. 2. When a lease agreement expires and the tenant remains in occupation, the tenant becomes a statutory tenant and remains bound by the terms of the expired lease agreement. 3. Sureties and co-principal debtors remain bound after expiration of a lease agreement where the suretyship clause provides for continuing security until written cancellation by the landlord, and where the principal debtor continues as a statutory tenant. 4. For rescission of default judgment, an applicant must demonstrate both: (a) that they were not in wilful default (i.e., provide a reasonable explanation for non-attendance), and (b) that they have a bona fide defence to the claim on the merits. Failure to establish either requirement is fatal to the application. 5. A pattern of seeking repeated postponements, changing legal representatives, and failing to communicate with the court or opposing party about anticipated delays evidences wilful default and abuse of process.

The court made strong observations about the proliferation of applications for rescission, condonation, and similar relief arising from failures by litigants or their lawyers, endorsing McNally J's remarks in Ndebele v Ncube that 'we are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry.' The court expressed concern that petty disputes are being argued and re-argued until costs far exceed the capital amount in dispute. The court also commented skeptically on the credibility of Mr Chikono's supporting affidavit, questioning whether he truly had a matter in Masvingo or whether the story about the second appellant visiting his office was true, given the illogical timeline presented. The court observed that the first appellant, as a tenant, benefited from every delay as it remained in occupation while accumulating arrear rentals.

This case reinforces important principles in Zimbabwean civil procedure and landlord-tenant law: (1) Courts will not condone dilatory tactics and abuse of process through repeated postponements and changing of legal representatives; (2) The principle that there must be finality in litigation, as articulated in Ndebele v Ncube 1992 (1) ZLR 288 (S) - 'vigilantibus non dormientibus jura subveniunt' (the law helps the vigilant, not the sluggard); (3) Wilful default occurs when a party, with full knowledge of the hearing date and consequences of non-attendance, deliberately fails to appear; (4) When a lease agreement expires but the tenant remains in occupation, they become a statutory tenant bound by the terms of the expired lease; (5) Suretyship obligations continue beyond lease expiration where the surety clause provides for continuing security and does not terminate upon lease expiration; (6) Applications for rescission require both a reasonable explanation for default AND a bona fide defence on the merits.