The applicant sought rescission of a default judgment granted by Justice Mangota in case HC271/15. The applicant had filed a notice of opposition on 28 January 2015, which was stamped by the High Court registry before the default judgment was granted on 4 February 2015. However, Justice Mangota granted the default judgment in chambers, being unaware or in ignorance that opposing papers had been filed. The applicant had made an application for joinder in HC 9133/14, and the first respondent had made a chamber application under HC 271/15 for dismissal for want of prosecution. When the applicant requested Justice Mangota to set aside the default order mero motu, he declined but made a second judgment on the merits. The applicant treated this second judgment as a nullity. The matter eventually went to the Supreme Court, which declared the second judgment a nullity and remitted the matter back to the High Court to determine whether the applicant was entitled to rescission of the first (default) judgment.
1. The default order in Case No HC 271/15 was set aside in terms of Rule 449 of the High Court Rules 1971 on the grounds that it was erroneously granted. 2. The first and fourth respondents were ordered to pay the costs of the application, jointly and severally, the one paying and the other to be absolved.
Where a notice of opposition has been properly filed with the court registry before a default judgment is granted in a chamber application, the judgment is erroneously granted in the absence of the opposing party within the meaning of Rule 449(1)(a) of the High Court Rules. In such circumstances, the court should rescind the judgment without requiring the applicant to establish good cause - the existence of the error itself is sufficient. Once a court becomes aware that a chamber application is opposed, it must treat it as an opposed matter and refer it to the opposed roll rather than granting a default judgment.
Justice Mushore made critical observations about Justice Mangota's second judgment, stating that he could not understand how the merits of the matter were determined in the absence of a formal opposed application being argued by the parties. The judge also commented that he had 'never heard of an order which pronounces an emphatic denial of relief' in relation to Justice Mangota's order stating that the judgment would 'not be corrected, rescinded varied or set aside.' Justice Mushore observed that what ought to have happened was that once the learned judge became aware of the intention to oppose, he should have referred the matter to the unopposed roll without further ado. The judge also noted that whether or not the judge was aware that the matter was opposed is 'really neither here nor there' - the fact remains that as far as the applicant was aware and the rules provide, it was an opposed application.
This case clarifies the application of Rule 449(1)(a) of the High Court Rules in Zimbabwe regarding rescission of judgments erroneously granted in the absence of a party. It establishes that where a notice of opposition has been filed before a default judgment is granted in chambers, the matter should be treated as opposed and referred to the opposed roll. The case also confirms that in such circumstances, no enquiry into 'good cause' is required - the error itself is sufficient grounds for rescission. The judgment reinforces proper procedural requirements for chamber applications and the handling of opposed matters.