Evelina Murambiwa N.O v Edmund Maigurira and Magistrate Nyatsanza N.O and Master of the High Court

The applicant, executrix of her late husband's estate, issued summons against the 1st respondent for eviction from a property (stand number 2006, Glen Norah B, Harare) on 9 July 2015. During trial, while the applicant was being cross-examined, the matter was postponed several times. On 14 July 2016, the 1st respondent and his legal practitioner failed to appear, resulting in a default judgment being granted. The 1st respondent then filed an ex parte application for stay of execution, which was granted by the 2nd respondent (Magistrate Nyatsanza) on 5-6 October 2016. Subsequently, an application for rescission of judgment was granted on 31 October 2016. The applicant sought review of both decisions, alleging gross irregularities and bias.

• Whether the granting of the ex parte application for stay of execution and rescission of judgment constituted a gross irregularity justifying review of unterminated civil proceedings
• Whether the 2nd respondent showed bias in granting both applications
• Whether the Magistrate correctly applied the legal requirements for rescission of judgment under Order 30 of the Magistrate Court (Civil) Rules, 1980
• Whether the appropriate threshold for reviewing interlocutory decisions in civil proceedings was met

a. The decision of the court a quo of 31 October 2016 in case number 21426/15 granting an application for rescission of judgment is set aside. b. The application for rescission of judgment in case number 21426/15 in its present form shall be set down and heard before a different Magistrate within 30 days. c. The 1st respondent shall apply for a set down date and the Clerk of Court shall ensure the matter is heard within the stipulated time frame. d. Each party shall bear its own costs.

In reviewing unterminated civil proceedings, the High Court will only intervene where: (1) the irregularity complained of is gross and seriously prejudices the litigant's rights; or (2) the irregularity is such that justice cannot be served by any other means. A mistake of law constitutes a reviewable gross irregularity where: (a) the wrong question of law is asked causing misdirection; (b) an error causes failure to appreciate the nature of discretionary powers; (c) misconstruction causes misconception of jurisdiction; or (d) the decision was dependent on or substantially influenced by the error of law. In rescission applications under Order 30 of the Magistrate Court (Civil) Rules, 1980: (1) payment of security costs and costs awarded in the default judgment is mandatory before an application can be heard; (2) the court must first determine whether the applicant was in wilful default before considering the merits; (3) failure to apply these mandatory requirements constitutes a gross irregularity where the decision is dependent on such errors.

The court criticized the practice of legal practitioners seeking costs on an attorney-client scale as a deterrent to opposition, stating this has no legal basis and ironically contradicts the fundamental right to be heard. The court noted that despite clarion calls for legal practitioners to exercise due diligence, this continues to be unheeded, with heads of argument in this case failing to address pertinent legal issues. The court observed that there is no requirement that a founding affidavit in a rescission application must be deposed to by the litigant personally - it can be by any person with personal knowledge of the issues. The court noted that setting aside both orders would have the practical effect of the default judgment standing, similar to the situation under Order 30 Rule 2(3) where dismissal of a rescission application makes the default judgment final.

This case clarifies the principles governing review of unterminated civil proceedings in Zimbabwe, particularly applications from the Magistrate Court. It reinforces that review is only available where there is gross irregularity that seriously prejudices a litigant's rights and no other remedy exists. The judgment provides important guidance on the mandatory requirements for rescission applications under Order 30 of the Magistrate Court Rules, particularly: (1) the mandatory payment of security costs before an application can be heard; (2) proper calculation of time frames for filing; and (3) the necessity of determining wilful default as a threshold issue before considering merits. The case also demonstrates judicial criticism of legal practitioners' lack of due diligence and misunderstanding of fundamental procedural principles.