Collin Jimu v Lifesaver Investments (Private) Limited and Deputy Sheriff

The applicant sought rescission of a default judgment granted on 25 January 2010 under HC 7064/08. The applicant, appearing in person, claimed he was not in wilful default as he had attended Court J where the matter was scheduled to be heard. After waiting and seeking assistance from the Registrar, he was informed there had been a mix-up and the case was actually before the Judge President in Court N. By the time he reached Court N, business had concluded and default judgment had been entered against him in an eviction matter. The applicant had stopped paying rent in June 2008. The first respondent, acting as the lawful estate agent for the owner Blessing Bessie Nyatsango, sought to evict him. The applicant contested the eviction claiming the first respondent was not the owner and had no authority, and that he had not received proper notice. The first respondent produced evidence showing it was the lawful agent through whom the applicant had applied for tenancy, produced title deeds showing the true owner, and produced a notice to vacate dated 25 July 2008 received by the applicant's brother on 26 July 2008.

• Whether the applicant was in wilful default when default judgment was entered against him
• Whether the applicant demonstrated sufficient cause for rescission of the default judgment
• Whether the applicant had a bona fide defence or triable issue to justify rescission of the default judgment
• Whether rescission should be granted where the applicant's defence appears hopeless

The application for rescission of judgment was dismissed on the turn (dismissed immediately without full hearing).

For an application for rescission of default judgment to succeed, it is insufficient for the applicant to merely demonstrate absence of wilful default. The applicant must also demonstrate that he has a plausible case, a triable issue, or sufficient cause for rescission. Where an applicant is unable to demonstrate a credible defence or provide evidence to support his contentions, the court will not exercise its discretion to grant rescission as to do so would constitute an abuse of process and allow hopeless resistance to just claims.

The court observed that to bend backwards so as to allow hopeless argument is not a judicial exercise of discretion. The court noted that rescission is a step within the court's discretion which must be exercised judiciously. The court commented that the fact the applicant did not bother to show proof of payment even in his application for rescission demonstrated that the claim was not being seriously made.

This case reinforces the principle in Zimbabwean law that an applicant for rescission of default judgment must demonstrate both absence of wilful default and a bona fide defence or triable issue. It illustrates that courts will not exercise their discretion to grant rescission where the applicant's defence appears hopeless or unsupported by evidence, as this would constitute an abuse of process. The case emphasizes the two-fold test for rescission and the requirement for substantive merit, not merely procedural excuses.