Farai Bwatikona Zizhou v Rita Marque Mbatha and Others

On 26 November 2024, under HCH 3766/24, a court order was granted at a pre-trial conference in favor of the applicant (plaintiff in that matter) against the first respondent (first defendant), cancelling deed of transfer no. 1484/2024 registered in the first respondent's name and reviving deed of transfer no. 6692/2007 in the names of the plaintiff and Clara Zizhou. The first respondent subsequently obtained an unopposed order on 12 March 2025 under HCH 613/25 setting aside the default judgment of 26 November 2024. The applicant was unaware of the HCH 613/25 proceedings and only discovered the order during cross-examination of the first respondent in a related criminal trial. Upon investigation, it was found that while HCH 612/25 had been served on the applicant, HCH 613/25 had not been served, despite a false affidavit of service claiming otherwise. The applicant then sought rescission of the order in HCH 613/25.

• Whether the applicant had locus standi to institute rescission proceedings without first complying with the order in HCH 613/25
• Whether the requirements for setting aside a default judgment were met by the applicant
• Whether there was good and sufficient cause to rescind the judgment in HCH 613/25
• Whether costs on an attorney-client scale were justified

1. The application for rescission of judgment was granted. 2. The judgment in HCH 613/25 granted in default on 12 March 2025 was set aside in its entirety. 3. The applicant was ordered to file his notice of opposition and opposing affidavit under HCH 613/25 within 10 days, after which the matter would proceed in terms of the rules. 4. The first respondent was ordered to pay costs on the ordinary scale.

A party against whom a default judgment has been entered has locus standi to apply for rescission of that judgment under Rule 27 of the High Court Rules, 2021 without first complying with the order sought to be rescinded. The rules themselves clothe such a party with legal capacity to seek rescission. Good and sufficient cause for rescission exists where: (i) the applicant provides a reasonable explanation for the default (in this case, lack of actual service despite a false affidavit of service); (ii) the application is bona fide; and (iii) there is a bona fide defence with prospects of success. Where a respondent obtains judgment through false claims of service, this constitutes "snatching judgment" and the judgment will be set aside. These factors must be considered individually and in conjunction with one another and with the application as a whole.

The court made observations about the proliferation of litigation between these parties and attempted to encourage them to resolve the underlying dispute regarding the immovable property. The court used an African idiom about a cow that one can only be satisfied with after milking it, in reference to the precarious nature of default judgments. The court also noted that the contentions regarding the allegedly tainted transfer of the immovable property deserved proper consideration in the substantive proceedings. The judge expressed that default judgments "invariably stand on a slippery slope," emphasizing the court's reluctance to allow judgments obtained without proper service to stand.

This case is significant in Zimbabwean civil procedure as it clarifies that: (1) a party against whom a default judgment has been entered has locus standi to apply for rescission without first complying with the order sought to be rescinded; (2) courts will scrutinize affidavits of service and will set aside judgments obtained through false claims of service; (3) the practice of "snatching judgment" through improper service is strongly disapproved; and (4) the case demonstrates the court's willingness to grant rescission where there is clear evidence of lack of actual service, reinforcing the principle that default judgments stand on a "slippery slope" and parties should generally have their day in court.