Jameson Rushwaya and Others v Swimming Pool & Underwater Repair (Pvt) Ltd and Others

The first and second applicants (husband and wife) and the third applicant (a company) sought condonation for late filing of an application to set aside a consent judgment granted on 27 June 2017 in Case No. HC 7617/15. The underlying dispute concerned shareholding structure in certain companies that owned mining interests, particularly Glencairn Mine. At trial in the main case, the first applicant was absent, but his legal practitioner J. Maupa was present and consented to judgment determining the shareholding and directorship structure. The applicants alleged they did not authorize the consent, claiming the first applicant had been threatened, forced to flee his mine residence, went into hiding due to threats to his life involving politically connected individuals (including Russel Goreraza, stepson of former President Mugabe), and could not be contacted. Their former legal practitioner allegedly advised them that challenging a consent judgment was insurmountable and costly. They filed this condonation application in January 2020, approximately 30 months after the consent judgment. The consent order also appeared not to comply with Rule 54 requirements as it lacked proper signatures.

• Whether condonation is required before applying to set aside a consent judgment where no specific time limit is prescribed by the rules
• Whether the delay of approximately 30 months in filing the rescission application was reasonable in the circumstances
• Whether the applicants provided a satisfactory explanation for the delay
• Whether the applicants demonstrated prospects of success in the intended rescission application
• Whether the consent judgment was properly obtained in compliance with Order 8 Rule 54 of the High Court Rules 1971
• Whether the legal practitioner had proper authority to consent to judgment on behalf of the applicants, particularly the third applicant (company)

1. The application succeeds. 2. The applicants are granted leave to file their intended application in terms of Rule 29 of the High Court Rules (2021) within ten (10) days of the date of this order. 3. The costs of the application are costs in the cause in the rescission application. 4. Should the applicants fail to comply with paragraph 2, the applicants shall pay the respondents' costs of this application.

Condonation is required before filing an application to set aside a consent judgment under Rule 449 (now Rule 29), even where no specific time limit is prescribed by the rules, because such applications must be brought within a reasonable time and any delay beyond what is reasonable requires an acceptable explanation through a condonation application. Where an explanation for delay is unsatisfactory or imprecisely articulated, the applicant may still succeed if prospects of success in the intended application are very good. The assessment of 'reasonable time' in Rule 449/29 applications is more flexible than in applications with fixed statutory time limits and must be determined contextually based on all circumstances of each case. A consent judgment that does not comply with the procedural requirements of Rule 54 (proper signatures and verification) raises questions about its validity that constitute good prospects of success in a rescission application. A legal practitioner's consent to judgment without clear instructions from the client, particularly where the client was uncontactable and this was communicated to the opposing party, and where there was no corporate resolution authorizing consent for a company, provides a basis for setting aside the consent judgment.

The court observed that ignorance of the law by a legal practitioner, without more, is not grounds for awarding punitive costs against the litigant or legal practitioner without giving the legal practitioner an opportunity to make representations. The court noted that where a party seeks condonation for late filing of a rescission application, one school of thought suggests dealing with both condonation and rescission in the same application to avoid the risk of the condonation court making findings that effectively predetermine the rescission application. The court emphasized the importance of precision in pleading where time is of the essence - applicants should provide specific dates when material events occurred to enable proper assessment of delay. The court commented that a legal practitioner's failure to respond to correspondence requesting an explanation for consenting to judgment "smacks of unprofessional conduct" and that "correspondence should not be ignored." The court noted that the conduct was inconsistent with a client whose legal practitioner had carried out an authorized mandate. The judgment observed that the involvement of politically connected individuals and threats to personal safety, while not fully investigated at this stage, provided context for understanding the applicant's conduct and absence from proceedings.

This case clarifies important principles in Zimbabwean civil procedure regarding applications to set aside consent judgments: (1) It confirms that condonation is required before filing a Rule 449 (now Rule 29) application to set aside a consent judgment, even where no specific time limit is prescribed, following Chevhu Housing Co-operative v Crest Breeders. (2) It establishes that 'reasonable time' for filing such applications must be assessed contextually and is more flexible than applications with fixed statutory time limits. (3) It reaffirms that courts may raise points of law apparent on the papers proprio motu, citing Cusa v Tao Ying Metal Industries. (4) It emphasizes the strict procedural requirements for obtaining valid consent judgments under Rule 54, including proper signatures and verification. (5) It demonstrates the court's willingness to exercise discretion in favor of substantive justice where there are serious questions about whether consent was properly obtained, particularly involving corporate entities and allegations of lack of authority. (6) It illustrates the interplay between quality of explanation for delay and strength of prospects of success in condonation applications. The judgment also touches on issues of professional conduct by legal practitioners in obtaining and responding to queries about consent to judgment.