Elizabeth Glaser Pediatric AIDS Foundation v Amos Magoronga and Takawira Munyanyi

On 24 January 2022, a court application for registration of a Labour Court Order was filed under case HC 436/22. The respondent (now applicant) received the application on 25 January 2022 and had 10 days to file opposing papers. On 7 February 2022, the respondent filed opposing papers within the dies inducea (which expired on 8 February 2022), but the papers quoted the wrong case number (HC 651/22 instead of HC 436/22). As a result, the opposing papers did not find their way into the correct court record. On 15 February 2022, the respondent's legal practitioners wrote to the Registrar and copied the applicant's legal practitioners (received 24 February 2022) advising of this anomaly and seeking to rectify it. Despite being aware of the error and the existence of opposing papers, the applicant's legal practitioners applied for a set down date on the unopposed roll on 14 February 2022. The matter was set down for 23 February 2022, postponed to 2 March 2022, and on that date a default order was granted in favour of the applicants. The applicant in casu (original respondent) filed for rescission on 18 March 2022.

• Whether the application for rescission should be struck off for non-compliance with a prior costs order
• Whether a default order erroneously sought under Rule 29(1) of the High Court Rules 2021 should be rescinded
• Whether a party who is aware that opposing papers were filed but did not appear in the record due to clerical error can properly seek a default judgment

The application for rescission was granted with costs. The default order granted under HC 436/22 was rescinded.

Under Rule 29(1)(a) of the High Court Rules 2021, a court may rescind an order that was erroneously sought where a party applies for a default judgment knowing that the opposing party has filed opposing papers which have not appeared in the record due to a clerical error (incorrect case number citation). The test is whether the order would have been granted had the true position been brought to the attention of the presiding judge. A party who is aware that an application is opposed cannot properly seek a default judgment merely because the opposing papers have not found their way into the record due to an administrative error.

The court adopted and applied the reasoning of Mutevedzi J in case HC 2043/22 regarding substantial compliance with costs orders, noting that failure to fully comply with a costs order may be excused where it results from the receiving party supplying incorrect bank account details. The court also indicated that substantial compliance with procedural orders, rather than strict literal compliance, may be sufficient in appropriate circumstances.

This case provides important guidance on the application of Rule 29(1) of the High Court Rules 2021 regarding rescission of orders erroneously sought or granted. It establishes that a party who is aware that opposing papers have been filed but have not appeared in the record due to clerical error cannot properly seek a default judgment. The case emphasizes the distinction between orders erroneously granted by the court and orders erroneously sought by a party, and confirms that both fall within the scope of Rule 29(1)(a). It also demonstrates the courts' commitment to ensuring that matters are decided on their merits rather than on technicalities, particularly where a party has acted in good faith to rectify a clerical error and has notified the opposing party of the problem.