Foundation College v Simbarashe Moyo & 12 Others

The 12 respondents were former employees of the applicant. In March 2018, the Labour Court awarded the respondents arrear wages totalling $52,658.00. The applicant made full payment of the arrears by electronic transfers into the respondents' individual accounts. Despite these payments, the respondents applied to register the Labour Court judgment with the High Court. On 8 August 2019, Takuva J registered the Labour Court order, entering judgment in default as an ordinary chamber application. The application for default judgment was not served on the applicant, with no proof of service on record. On 28 November 2019, a Warrant of Execution was issued against the applicant's property, and various items of movable property were placed under execution. The applicant maintained it was not in wilful default and provided proof of payments made to the respondents. The respondents insisted on execution, arguing payment should have been made in US Dollars, though the Labour Court judgment was not denominated in foreign currency.

• Whether there was good and sufficient cause to rescind the default judgment
• Whether the applicant provided a reasonable explanation for the default
• Whether the application for rescission was brought bona fide
• Whether there was a bona fide defence on the merits with prospects of success
• Whether the applicant was in wilful default
• Whether execution should be stayed

1. The application for rescission of judgment under case number HC 1433/19 was granted. 2. The applicant was ordered to file its notice of opposition within 10 days of the date of the order. 3. Execution of judgment under case No. HC 1433/19 was permanently stayed. 4. There was no order as to costs.

A default judgment may be rescinded where: (1) there is no proof of service of the application on the defaulting party; (2) the party was not in wilful default (wilful default requiring knowledge of court process and deliberate choice to ignore it); (3) the party provides a reasonable explanation for the default; (4) there is a bona fide defence on the merits with prospects of success; and (5) the underlying debt has been discharged through payment. Where an applicant demonstrates that judgment was obtained without proper service and that the debt has already been paid with documentary proof, this constitutes good and sufficient cause for rescission of judgment and permanent stay of execution.

The court observed that the respondents' assertion that they should have been paid in foreign currency (United States Dollars) had no legal or factual basis, noting that the Labour Court judgment did not sound in US Dollars and when it was registered with the High Court, the amounts were denominated in Zimbabwe Dollars. The court also noted that the respondents "stubbornly" insisted on execution despite proof of payment, suggesting disapproval of the respondents' conduct in pursuing enforcement of a satisfied judgment.

This case reinforces the fundamental principles governing rescission of default judgments in Zimbabwe, emphasizing the importance of proper service of process and the principle that a party cannot be held in wilful default when it has no knowledge of court proceedings. The case demonstrates the courts' willingness to set aside default judgments where there is evidence of non-service and where the applicant has a meritorious defence (having already paid the debt). It also affirms that execution cannot proceed where the underlying debt has been satisfied, regardless of technical registration of a judgment. The case protects parties from enforcement of judgments obtained without proper notice.