Glickmate Enterprises (Pvt) Ltd v Alouvine (Pvt) Ltd

On 5 April 2015, the respondent sued the appellant in the magistrate court for eviction from stand 1691D SPCA Prospect, Waterfalls, Harare, alleging ownership. The appellant opposed and the matter proceeded to trial. After the respondent closed its case, the appellant's legal practitioner indicated he would file an application for absolution from the instance on 9 March 2017, but failed to do so and only filed on 13 March 2017. The application for absolution was dismissed. The matter was set down for continuation of trial on 30 March 2017. On that date, neither the appellant nor its legal practitioner were in court. The respondent applied for and was granted a default judgment. On 3 April 2017, the appellant applied for rescission of the default judgment, alleging it was not in wilful default and had prospects of success. The respondent opposed. On 26 April 2017, the magistrate dismissed the application for rescission, finding the appellant was in wilful default. The appellant appealed to the High Court.

• Whether the magistrate erred in dismissing the application for rescission when all requirements had allegedly been met
• Whether the magistrate misdirected himself in finding that the default was wilful
• Whether the magistrate erred in failing to consider the prospects of success demonstrated by the appellant
• Whether the explanation for the default was reasonable and acceptable
• The test for rescission of default judgments in the Magistrates Court under Order 30 of the Magistrates Court (Civil) Rules, 1980

The appeal was dismissed with costs.

Under Order 30 Rule 2(1) of the Magistrates Court (Civil) Rules, 1980, a court may only rescind a default judgment unless it is proved that the applicant was in wilful default. If wilful default is established, that is the end of the inquiry and the court is not required to consider the merits of the defence or prospects of success. This differs from the position in the High Court. Wilful default includes scenarios where a litigant, being aware of the set down date and time, deliberately absents himself or deliberately fails to attend court. An applicant's explanation for default must be reasonable and acceptable and must not be an affront to the intelligence of the court. Double-booking by a legal practitioner, without proper explanation of how it occurred or steps taken to avoid it, does not constitute a reasonable explanation for default.

The court observed that a diligent legal practitioner would know in advance the cases on his roll and would ordinarily take appropriate steps to avoid double booking. Where double booking occurs, appropriate steps should be taken to inform the courts involved. The court noted that a case of being double booked does not normally suddenly arise on the date of hearing - a diligent practitioner would know in advance and take appropriate steps to seek the court's indulgence. The court also commented that the grounds of appeal premised on the alleged failure to consider the defence to the main matter were clearly ill-conceived and of no consequence to the real bone of contention, which was the finding of wilful default.

This case clarifies the test for rescission of default judgments in the Magistrates Court under Order 30 of the Magistrates Court (Civil) Rules, 1980. It confirms that wilful default is a complete bar to rescission in the Magistrates Court, unlike in the High Court where merits may still be considered even after a finding of wilful default. The case emphasizes that once wilful default is established, the court need not consider the defence or prospects of success. It also provides guidance on what constitutes wilful default, including deliberate absence despite knowledge of the set down date, and unreasonable or unacceptable explanations for non-attendance. The judgment underscores the professional obligations of legal practitioners to avoid double-booking and to provide cogent explanations when seeking the court's indulgence.