Lilian Maruva Masombo v Puzzle Blessing Hlahla

The parties were in dispute over Stand No. 2992, 39 Crescent, Glen View 2, Harare. The property initially belonged to the applicant who held title deeds. In 2012, the applicant approached Tafadzwa Mavhunga for a loan of US$5,000 at 25% interest per month, surrendering her title deeds as security and signing a power of attorney and agreement of sale. The applicant alleged Mavhunga fraudulently transferred the property into his name without her knowledge or consent, despite her making repayments. Mavhunga subsequently sold the property to the respondent who obtained title deeds in November 2014. The respondent notified the applicant to vacate, and when she refused, issued eviction summons in the Magistrates Court in March 2015. The applicant filed a counter-claim for a declaratur which was outside the Magistrates Court's jurisdiction, and proceedings were stayed pending the filing of a High Court application for declaratur. The applicant's lawyers issued summons for a declaratur on 1 July 2015 but failed to serve it on the respondent. The respondent then filed her own application for declaratur on 2 November 2015, which was served on the applicant's lawyers (Mushangwe & Company) on 3 November 2015. The applicant's lawyers received the application, kept it for 15 days, then returned it on 18 November 2015 claiming they had no specific instructions to respond and could not locate their client. No notice of opposition was filed, and the respondent obtained a default judgment on 9 December 2015. The applicant then applied for rescission of the default judgment on 13 January 2016.

• Whether there was good and sufficient cause to rescind the default judgment in terms of Rule 63(2) of the High Court Rules, 1971
• Whether the applicant provided a reasonable explanation for her default in filing opposing papers
• Whether the application for rescission was bona fide
• Whether the applicant had a bona fide defence on the merits with prospects of success

The application for rescission of the default judgment was dismissed with costs.

For an application for rescission of a default judgment to succeed under Rule 63(2) of the High Court Rules, 1971, the applicant must demonstrate good and sufficient cause by satisfying three conjunctive requirements: (i) a reasonable explanation for the default; (ii) bona fides of the application for rescission; and (iii) a bona fide defence on the merits with prospects of success. These factors are examined in conjunction with one another. Where legal practitioners claim lack of specific instructions to handle a matter when they have been representing a client in the same matter throughout its course, this will not constitute a reasonable explanation for default. An applicant alleging fraud must provide credible evidence and rebut documentary evidence presented by the respondent; bare assertions without supporting evidence or explanations will not establish a bona fide defence on the merits. The overall conduct of a party, including dilatory approaches and failure to take timely action to protect their rights, may demonstrate lack of bona fides in a rescission application.

The court observed that an unsatisfactory explanation for default may be strengthened by a very strong defence on the merits (citing Dupreez v Hughes NO 1957 R & N 706 SR at 709 A-D). The court noted that in the modern era of mobile phones, it was particularly unconvincing for legal practitioners to claim they could not locate their client. The court also commented that the applicant's approach appeared designed to prolong her stay at the property, as delays would benefit her by extending her occupation without suffering any prejudice.

This case demonstrates the Zimbabwean High Court's application of the test for rescission of default judgments under Rule 63(2) of the High Court Rules, 1971. It illustrates that courts will examine the reasonableness of explanations for default critically, particularly where legal practitioners claim lack of instructions despite an ongoing mandate to handle related matters. The case emphasizes that applicants for rescission must provide credible evidence to support allegations of fraud and cannot rely on bare assertions when documentary evidence contradicts their claims. It also highlights that courts will consider the overall conduct of parties in assessing the bona fides of rescission applications, and that dilatory tactics will not be tolerated. The judgment reinforces the principle that all three factors (reasonable explanation, bona fides of application, and bona fide defence with prospects of success) must be satisfied conjunctively, though they are examined in conjunction with one another.