Edith Marume (In her capacity as the Executrix Dative to Estate Late Ennety Charambira, DR597/20) v Josephine Murwira

The applicant was appointed Executrix Dative to the Estate of the Late Ennety Charambira (DR 597/20) in 2020. A default judgment had been granted against her late mother on 25 July 2018 in case HC 10394/17. The late Ennety Charambira had taken steps to defend the matter until she passed away on 21 December 2018. The applicant averred that she only became aware of the default judgment on 1 April 2021 when the respondent came to evict tenants from the property in question. The applicant approached the court seeking condonation for late filing of an application for rescission of the default judgment. The respondent opposed the application, arguing that the applicant was aware of the default judgment as far back as 2019, referring to two letters dated 31 January 2019 and 1 October 2020 allegedly served on the applicant. The respondent contended that the applicant lied about when she became aware of the judgment. There were several tenants residing at the property at the relevant time. The applicant denied receiving the letters, stating she was not in occupation of the property at the time.

• Whether the applicant provided a reasonable explanation for the delay in filing the application for rescission of default judgment
• Whether the delay was inordinate in the circumstances
• Whether there are prospects of success on the main matter (rescission of default judgment)
• Whether granting condonation would cause prejudice to the respondent
• Whether the applicant had knowledge of the default judgment prior to 1 April 2021

1. The applicant was condoned for late filing of Court Application for Rescission of Judgment granted in case HC 10394/17. 2. The applicant was ordered to file and serve her application within 14 days of the order. 3. The costs of the application were made costs in the cause.

For an application for condonation for late filing to succeed, the following requirements must be satisfied: (a) the delay involved was not inordinate, having regard to the circumstances of the case; (b) there is a reasonable explanation for the delay; (c) there are prospects of success on the main matter should the application be granted; and (d) there is no possible prejudice to the other party should the application be granted. Where an executrix only becomes aware of a default judgment granted against the deceased during the deceased's lifetime after appointment as executrix, and files the application for rescission without delay upon becoming aware, there is a reasonable explanation for the delay. The fact that a party holds a default judgment without a determination on the merits does not constitute prejudice sufficient to defeat a condonation application where the underlying matter has prospects of success.

The court observed that the relief sought in the application was "open handed and not properly drafted" and agreed with counsel's submission to that effect. This led the court to grant an amended order with specific timelines for filing and service. The court also noted that there were several tenants residing at the property and that the first letter may have been served on one of the tenants rather than the applicant, and that the second letter had no endorsement proving service despite being addressed to the applicant.

This case provides guidance on the requirements for condonation for late filing of applications for rescission of default judgments in Zimbabwean law. It demonstrates the court's approach to assessing reasonable explanations for delay, particularly in the context of estate administration where an executrix only becomes aware of proceedings after appointment. The case also illustrates the standard for assessing prospects of success where a party seeks to challenge a default judgment on the merits, and emphasizes that clinging to a default judgment obtained without a merits-based determination does not constitute prejudice sufficient to defeat a condonation application. It also highlights the importance of proper drafting of relief sought and the court's willingness to amend orders to provide proper timelines.