Edith Marume v Josephine Murwira

On 25 July 2018, default judgment was granted against Emely Charambira in an action brought by the respondent. Emely Charambira passed away on 21 December 2018. The applicant, appointed as executrix dative to Charambira's estate, sought condonation for late filing of a rescission application, which was granted on 16 March 2022. The dispute concerned house number 8609 Mbare, Harare, which was allegedly donated to the applicant's parents by her grandparents on 12 April 1999, confirmed by the City of Harare on 15 July 2007. The applicant's father died in 2007, and the deceased (her mother) was appointed executrix and the house was registered in her name as surviving spouse. The respondent claimed the property was ceded to her late brother in 1996 in trust for securing a loan and was meant to be a family home. The respondent had instituted the action on 6 November 2017. The deceased allegedly entered appearance to defend on 13 November 2017, but default judgment was granted when no one appeared on 25 July 2018.

• Whether the default judgment was properly obtained in terms of Rules 59A and 49 of the High Court Rules, 1971
• Whether the applicant should have sought rescission under Rule 63 (judgment granted in default) rather than on the basis that judgment was granted in error
• Whether the default was wilful or excusable
• Whether the applicant established good and sufficient cause for rescission under Rule 63(2) applying the Stockhill v Griffiths test
• Whether there was a reasonable explanation for the default
• Whether the defence had bona fides and prospects of success on the merits

The application for rescission of judgment was dismissed with ordinary costs.

An applicant seeking rescission of a default judgment under Rule 63(2) of the High Court Rules, 1971 must discharge the onus of establishing good and sufficient cause by providing: (1) a reasonable explanation for the default - where legal practitioners were representing the party at the material time and no affidavit from them is provided nor explanation for its absence given, the court will conclude the default was wilful or negligent; (2) bona fides of the application; and (3) a bona fide defence on the merits carrying prospects of success. These factors must be considered individually, in conjunction with one another, and with the application as a whole. Where an applicant relies on hearsay evidence from events she could not have personally witnessed, and provides no other evidence to support her allegations, prospects of success on the merits are not established.

The court noted that the applicant approached the court on the wrong legal basis - she sought rescission on the ground that judgment was granted in error, when she should have proceeded under Rule 63 on the basis that judgment was granted in default. The court also observed that punitive costs on a legal practitioner-client scale should not be awarded without proper justification, and that ordinary costs would meet the justice of the case. The court cited the principle from Nyahondo v Hokonya 1997(2) ZLR 457 that he who alleges must prove.

This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments. It emphasizes: (1) the distinction between rescission based on error versus rescission of judgments granted in default under Rule 63; (2) the strict application of the Stockhill v Griffiths test requiring applicants to establish good and sufficient cause by demonstrating reasonable explanation for default, bona fides of the application, and prospects of success on the merits; (3) the necessity of providing affidavits from legal practitioners who were representing the party at the time of default, or explaining their absence; (4) that failure to do so leads to the conclusion that default was wilful; and (5) the application of the principle that he who alleges must prove, particularly where the applicant relies on hearsay evidence from events when she was a child.