Livre Investments (Private) Limited and Granary Investments (Private) Limited v Elkin Pianim

The respondent obtained a default judgment against the applicants on 27 November 2003 in case HC 9363/03 for US$512,000 or alternatively Z$421,888,000 arising from an agreement of sale dated 13 May 2002 where the applicants stood as guarantor and surety. Summons was served at the applicants' place of business on 14 November 2003 through their receptionist Marion, but the applicants did not enter an appearance to defend. The applicants' immovable property was attached on 18 February 2004 and a caveat was registered against the title deeds. On 23 November 2011, notification of a sale in execution was made. The applicants filed an application for rescission of the default judgment on 21 February 2012, approximately 9 years after the judgment was granted. The applicants claimed they only became aware of the default judgment on 23 November 2011 when they received the notification of sale in execution.

• Whether the application for rescission of default judgment was brought within the prescribed time limit under Order 9, Rule 63 of the High Court Rules
• Whether condonation for late filing was properly sought and granted
• Whether the court could resort to Rule 4C to permit departure from procedural rules in the interests of justice
• Whether the applicants could switch to an application under Order 49, Rule 449 after abandoning their original application under Rule 63
• Whether an application under Rule 449 was brought expeditiously

The application for rescission of default judgment was dismissed with costs on a legal practitioner and client scale.

An application for rescission of default judgment brought under Order 9, Rule 63 must be made within one month of knowledge of the judgment, failing which a proper application for condonation must be made and granted before the rescission application can be entertained. Where an applicant wholly abandons their application, the court cannot resort to Rule 4C to permit procedural departures as there is nothing left to condone. An applicant cannot switch from one procedural basis (Rule 63) to another (Rule 449) through oral submissions from the bar after abandoning the original application; proper procedure requires withdrawal of the abandoned application and filing of a fresh application. Applications under Rule 449 must be brought expeditiously, and a delay of 9 years does not meet this requirement. An application stands or falls on its founding papers, and allegations raised only through counsel's submissions from the bar without supporting affidavits cannot be entertained.

The court noted with disapproval the applicants' conduct in prosecuting the matter, including: (1) failing to timeously file heads of argument, leaving the respondent to file first; (2) failing to apply for set down, which was done by the respondent; (3) failing to bind the file, which was done by the respondent; and (4) failing to process security for costs, which was handled by the respondent. This conduct demonstrated a lack of seriousness and justified the award of punitive costs on a legal practitioner and client scale. The court also observed that the allegations of fraud and illegality raised by counsel appeared to be an afterthought when the applicants realized their application had "hit a brick wall" after failing to pass the first hurdle of condonation.

This case reinforces the strict procedural requirements for applications to rescind default judgments in Zimbabwean law, particularly: (1) the mandatory one-month time limit under Order 9, Rule 63(1) and the necessity of proper condonation applications when that deadline is missed; (2) that applications stand or fall on their founding papers and cannot be fundamentally changed through oral submissions from the bar; (3) that abandoned applications cannot be resuscitated through Rule 4C; (4) the principle that Rule 449 applications must be brought expeditiously; and (5) that punitive costs may be awarded where a party demonstrates lack of seriousness in prosecuting their matter. The case illustrates the courts' approach to procedural compliance and the consequences of attempting procedural maneuvers after an application has failed.