Joseph Bakuru Tayali and Assistant Inspector Kamutingondo v Llyod Garikayi Ndangariro and Sheriff of Zimbabwe NO

A default judgment was granted on 18 September 2014 against the applicants (defendants in the main action) ordering them to pay the first respondent (plaintiff) US$22,000 comprising: US$8,000 for unlawful arrest and detention, US$12,000 for money unlawfully seized, and US$2,000 for impairment of dignity. The first respondent had alleged that the first applicant made a false report to police in Gweru that he had stolen gold in the Shangani area. The first respondent was taken to Gweru CID Offices by the second applicant for questioning, where the second applicant ordered him to surrender US$12,000 in cash. He was charged with theft of gold but the public prosecutor declined to prosecute due to insufficient evidence. The money was never returned. The first applicant was subsequently charged in the Magistrates' Court with stealing the $12,000 but was found not guilty and discharged. The applicants sought rescission of the default judgment on grounds that: (1) the first applicant's lawyers failed to enter appearance to defend despite being instructed; (2) the second applicant (a state officer) was not properly served as required by Rule 43B and was not given written notice under section 6 of the State Liabilities Act [8:14] requiring 60 days notice before suit.

• Whether the applicants provided a reasonable explanation for their default in entering appearance to defend
• Whether the applicants had a bona fide defence on the merits with prospects of success
• Whether the application for rescission was bona fide and not a delaying tactic
• Whether service of process was properly effected on the second applicant as a state officer in terms of Rule 43B
• Whether the mandatory notice requirement under section 6 of the State Liabilities Act [8:14] was complied with before instituting proceedings against the second applicant

The court granted the application for rescission. The default judgment granted on 18 September 2014 was rescinded. The first and second applicants were granted leave to file their opposing papers or notice of appearance to defend within 10 days of the granting of the order. The first respondent was ordered to pay costs of suit on the ordinary scale (not the attorney-client scale requested).

Non-compliance with the mandatory provisions of section 6 of the State Liabilities Act [8:14], which requires 60 days written notice before instituting proceedings against state officers, renders summons a nullity and of no force or effect. Improper service of process on state officers in contravention of Rule 43B of the High Court Rules constitutes a valid ground for rescission of default judgment. Where an applicant for rescission provides a reasonable explanation for default (including attorney's failure to act on instructions where the client reasonably believed the matter was being defended) and demonstrates a bona fide defence with prospects of success, the court should grant rescission to allow the matter to be defended on the merits.

The court observed that there was no clear and competent cause of action pleaded against the first applicant. The court also noted that it saw no reason why costs should be on a punitive (attorney-client) scale, even though the applicants had requested such an order, preferring instead to award costs on the ordinary scale. The court commented that the first respondent's submissions clearly ignored those of the applicants and the fact that he did not comply with mandatory provisions of the State Liabilities Act.

This case demonstrates the protection afforded to state officers under the State Liabilities Act [8:14], particularly the mandatory requirement of 60 days written notice before instituting proceedings. It emphasizes that non-compliance with this statutory requirement renders proceedings a nullity. The case also illustrates the court's approach to rescission applications where default occurs through attorneys' failure to act on instructions, and confirms that special rules for service of process on state officers must be strictly complied with. It reinforces that courts will grant rescission where there is a reasonable explanation for default and a bona fide defence with prospects of success, particularly where mandatory statutory procedural requirements have not been met by the plaintiff.