The 1st respondent (Commercial Bank of Zimbabwe) issued summons against the applicant (Leighwoods Bus Company) claiming $247,195.46 and $5,402.90 for an overdraft facility and bank charges. The applicant failed to effect discovery despite an order compelling discovery granted on 8 July 2002. The 1st respondent obtained an order striking out the applicant's plea and defence, and subsequently obtained default judgment on 6 March 2003 in case HC 2742/02. When the 1st respondent proceeded to execute the judgment, the applicant sought rescission. The applicant's legal practitioner admitted that she received the order compelling discovery but it was misplaced in her office files, and that a discovery affidavit had been prepared in January 2002 but never filed. The legal practitioner was also misled when the respondent filed a synopsis of evidence in September 2003 after obtaining the striking out order. The applicant requested the respondent to stay execution, which was refused.
(1) The judgment entered against the applicant on 6 March 2003 in case number HC 2742/02 is rescinded. (2) The applicant is ordered to pay the costs of the application on the ordinary scale.
Where a default judgment has been entered due to the oversight or tardiness of a party's legal practitioners rather than willful default by the party itself, and where the party can demonstrate a prima facie or bona fide defence to the claim, the court will grant rescission of the default judgment. In determining whether a bona fide defence exists, the court sitting on a rescission application should not adjudicate the merits or prospects of success as it is not sitting as a trial court - it need only be satisfied that a prima facie defence is raised. When considering costs in rescission applications, where both parties have acted unreasonably to some degree (the applicant through legal practitioner oversight, the respondent by refusing reasonable requests to consent to rescission), the court may still order costs against the applicant but decline to award costs on a higher scale.
The court observed that it would have been prudent for the respondent to consent to rescission of judgment rather than persist in executing the judgment in the face of a reasonable explanation for the default. The court noted that the respondent's legal practitioners acted unreasonably in seeking to execute upon the judgment given the circumstances of the case and the explanation provided by the applicant's legal practitioner. The court also commented that the respondent's filing of a synopsis of evidence after already obtaining the striking out order was misleading conduct.
This case demonstrates the Zimbabwean High Court's approach to rescission of default judgments where default is caused by legal practitioners' oversight rather than willful conduct by the party itself. It illustrates the principles governing rescission applications, requiring the applicant to show both that it was not in willful default and that it has a bona fide defence. The case also shows the court's willingness to exercise discretion on costs where both parties have acted unreasonably to some degree, and the court's reluctance to award costs on a higher scale in such circumstances.