David Jaji Hwehwe v Falcon Gold Zimbabwe Limited

The respondent obtained a default judgment against the applicant for US$67,700 plus interest and costs, arising from allegedly unpaid mining royalties under tribute agreements dating back to 2016. The default judgment was entered on 17 July 2025 when neither the applicant nor his legal practitioner appeared at a virtual pre-trial conference-cum-case management session. The applicant and his lawyer had traveled 350km from Gweru to Harare to attend the virtual hearing from the court premises for better connectivity. They attempted to log on at 11:00 hours for the 11:30 hearing but the system would not let them in. Despite contacting a judicial clerk 14 minutes before the session who indicated they would be let in, they were never admitted to the virtual session. Upon inquiry afterward, they were informed the session had concluded and default judgment had been entered. The applicant immediately complained to the Registrar and launched this rescission application. The underlying dispute concerned tribute agreements whereby the applicant conducted mining operations on the respondent's claims in return for royalties, initially at 5% per month, later US$5,000 per month. The applicant contended that old debts had been set off against water charges owed by the respondent, and that a new agreement in January 2023 allowed him to pay reduced royalties of US$2,500 per month until his financial situation improved.

• Whether the applicant was in wilful default of appearance at the virtual pre-trial conference
• Whether the applicant has a bona fide defence on the merits to the claim for mining royalties
• Whether the default judgment should be rescinded based on the conjunctive requirements of absence of wilful default and a bona fide defence
• Whether the tribute agreement allowed for reduced royalty payments of US$2,500 per month pending improvement in the applicant's mining operations

The order of 17 July 2025 under case number HCHC 351-25 (the default judgment) was set aside. Costs were ordered to be costs in the cause.

The binding legal principles established are: (1) In rescission applications, the requirements of absence of wilful default and bona fide defence on the merits must be satisfied conjunctively, not disjunctively, with the applicant bearing the onus. (2) Where a party's failure to appear at a virtual court hearing is due to systems error or court officials' error in not admitting them to the virtual session, despite their timely attempts to log on and reasonable efforts to participate, such default is not wilful. (3) A bona fide defence exists where contemporaneous documentary evidence supports the applicant's version of contractual arrangements, even where those arrangements appear commercially unusual, as this raises a triable issue that warrants full investigation at trial rather than summary dismissal.

The court made non-binding observations expressing skepticism about contractual arrangements that give one party latitude, virtually in perpetuity, to pay the true contract amount only when they determine themselves to be in a financial position to do so, with no time limits and with the means of improvement within that party's own control. The judge found such an arrangement 'quite odd' from a commercial perspective. The court also noted that principles on rescission of judgments are well-established and constitute 'an over-ploughed field' requiring no extensive recitation of authorities, with courts simply applying the settled yardstick. The judgment also commended the respondent's counsel for reasonably refraining from wasting time on the issue of wilful default and consenting to a stay of execution, demonstrating appropriate professional conduct.

This case is significant in Zimbabwean civil procedure as it demonstrates the court's willingness to grant rescission of default judgments where technical or systems failures prevent parties from accessing virtual court proceedings, particularly where there is no wilful default and a bona fide defence exists. It reinforces that the conjunctive requirements for rescission (absence of wilful default and bona fide defence) will be applied fairly, and that courts will not allow procedural irregularities or technical difficulties with virtual hearings to result in substantive injustice. The case also illustrates the court's approach to determining what constitutes a 'triable issue' sufficient to establish a bona fide defence, showing that contemporaneous documentary evidence supporting a party's version can be sufficient even where the arrangement alleged appears commercially unusual.