Gibson Chamboko and Mr Chamboko Snr and Change Tomas Kwodzi v Patric John Stooks and P J Stooks (Private) Limited

The respondents obtained a spoliation order against the applicants on 13 May 2009 in case HC 6215/08. The applicants failed to file opposing papers to the spoliation application, despite being served by the Deputy Sheriff on 23 October 2008 and subsequently through their legal practitioner. The matter was set down on the unopposed roll and postponed twice (6 April 2008, 29 April 2008), with the applicants' legal practitioner appearing in court on both occasions. Default judgment was granted on 13 May 2009. The applicants filed this rescission application the following day, claiming they were unaware of the case as they believed it had been consolidated with another urgent chamber application (HC 6507/08) which was dismissed by Musakwa J on 28 January 2009. The applicants had moved onto the respondents' farm armed with offer letters but without the respondents' consent or a court order. Before the rescission application could be determined, the court found the applicants in contempt of the spoliation order, which they subsequently purged.

• Whether the applicants had good and sufficient cause to rescind the default judgment in terms of Order 9 Rule 63
• Whether the applicants' explanation for their default was reasonable
• Whether the application for rescission was bona fide
• Whether the applicants had a bona fide defence on the merits with some prospect of success
• Whether the respondents had locus standi to bring spoliation proceedings despite the land belonging to the State
• Whether the applicants' possession of offer letters entitled them to despoil the respondents

The application for rescission was dismissed with costs awarded to the respondents.

For rescission of a default judgment under Order 9 Rule 63, an applicant must establish good and sufficient cause by demonstrating: (i) a reasonable explanation for the default; (ii) that the application is bona fide; and (iii) a bona fide defence on the merits carrying some prospect of success. Where a party, through their legal practitioner, is aware of pending proceedings and the risks of default but freely chooses not to file opposing papers, they cannot establish a reasonable explanation for default. In spoliation proceedings, the cause of action does not depend on the respective legal rights of the parties to the property but solely on whether there was peaceful and undisturbed possession that was forcibly or wrongfully disturbed. Offer letters issued under land reform programs do not entitle holders to despoil existing occupiers; the proper remedy is to approach the Minister for delivery of vacant possession through the Gazetted Lands (Consequential Provisions) Act [Cap 20:28].

The court observed that the application for rescission appeared to have been triggered by the writ of execution rather than a genuine belief in the merits of the defence. The court noted approvingly the principle from Zimbank Banking Corp v Masendeke 1995 (2) ZLR 400 (S) that where a party with full knowledge of service, set down, and risks of default freely decides to refrain from filing opposing papers, this militates against finding good cause for rescission. The court also commented that while one cannot tell from the record what transpired in motion court proceedings, the significant fact was that the legal practitioner's appearance demonstrated awareness of the live proceedings.

This case reinforces the established principles for rescission of default judgments in Zimbabwean law, requiring applicants to demonstrate good and sufficient cause across multiple factors. It importantly clarifies that spoliation proceedings are not dependent on the respective legal rights of parties to property but on the fact of unauthorized disturbance of possession. The case is particularly significant in the context of land reform, confirming that offer letters do not entitle holders to forcibly dispossess existing occupiers - the proper remedy is to approach the Minister for vacant possession through statutory provisions. It demonstrates the court's approach to alleged consolidation of cases and the duty of legal practitioners to act when aware of pending proceedings.