Fungai Gwenzi v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine and Deputy Sheriff Mount Darwin

The applicant was employed by the first respondent until 14 July 2008. Following his brother's death in August 2004, he had been permitted to remain as a tenant in company housing his brother had occupied. When his employment ended, the first respondent instituted eviction proceedings in case HC3735/08. The applicant entered an appearance to defend but failed to file a plea. Two law firms entered appearances to defend on his behalf: Manyurureni & Company (whom he instructed) on 29 October 2008, and Zimbabwe Lawyers for Human Rights (ZHLR) on 27 October 2008 (allegedly without his instruction, but included by colleagues with similar grievances). The first respondent's lawyers sent notices to plead and intention to bar to ZHLR. When no plea was filed, a default judgment was obtained. The applicant only became aware of the default judgment in 2010 when he received a notice of removal from the Deputy Sheriff. He then applied for rescission of the default judgment.

• Whether the applicant provided a reasonable explanation for his default in filing a plea
• Whether the applicant demonstrated bona fides in the application to rescind
• Whether the applicant had a bona fide defence on the merits with prospects of success
• Whether the double legal representation situation constituted good cause for rescission
• Whether the applicant had acquired rights to the property under a rent-to-buy scheme or remained merely a tenant

The application for rescission of the default judgment was dismissed with costs.

An applicant seeking rescission of a default judgment who has negligently instructed more than one legal practitioner simultaneously must bear the consequences of that negligence and cannot rely on confusion arising from double representation as reasonable explanation for default. Furthermore, for rescission to be granted, all factors must be weighed in totality - even if some excuse for default exists, the absence of prospects of success on the merits will defeat the application. A person claiming rights under an alleged agreement of sale must provide proof of such agreement and cannot claim rights that properly belong to a deceased person's estate merely by making payments on the deceased's behalf.

The court noted that applicant's counsel stated at the hearing that decisions on the nature of the sale arrangement remain pending in the Supreme Court. The court also observed that ordinarily, in terms of the rules, a lawyer must file a notice of renouncing agency and the one taking up the matter must file an assumption of agency, which was not done in this case. The court further commented that the applicant's legal practitioner's explanation of oversight due to too many cases, coupled with the absence of a reminder to file a plea, did not provide sufficient justification for the default.

This case reinforces the strict application of the requirements for rescission of default judgments in Zimbabwe, particularly emphasizing that applicants bear responsibility for confusion arising from instructing multiple legal representatives simultaneously. It also clarifies that payments made by an applicant do not alter their legal status (tenant vs purchaser) in the absence of clear contractual evidence, and that claims based on alleged agreements with deceased persons belong to the deceased's estate rather than third parties who may have made payments.