Majorie Makarau and Sebastian Makarau v Phillip William

The applicants sought rescission of a default judgment granted on 12 October 2016 in HC 10562/13, which ordered them to vacate House number 7434 Unit K, Seke Chitungwiza. The first applicant is the sister-in-law of the second respondent. The property in dispute was allegedly allocated to the first applicant's late husband by Chitungwiza Municipality. The first applicant invited Tracey Mupaya to stay at the property. Mupaya allegedly made misrepresentations to Chitungwiza Municipality and fraudulently obtained title to the property, then sold it to the respondent who obtained Deed of Transfer No. 5545/2008. The respondent purchased the property in 2006 after it was advertised by Sunbeach Properties Pvt Ltd and took occupation, renting it out. In 2007, the first applicant evicted the respondent's tenants pursuant to a writ issued under HC 542/05. The respondent attempted eviction in the Magistrates Court under case 88/09 in 2009 but failed. The applicants failed to attend trial on 12 October 2016, claiming their legal practitioner erroneously diarised the matter for 13 October 2016 instead. They arrived at court on 13 October 2016 only to discover a default judgment had been entered against them. The application for rescission was filed on 21 October 2016, 8 days after the default judgment.

• Whether there was good and sufficient cause to rescind the default judgment under Rule 63(2) of the High Court Rules, 1971
• Whether the applicants provided a reasonable explanation for their default in attending trial on 12 October 2016
• Whether the application for rescission was made bona fide
• Whether the applicants had a bona fide defence on the merits with prospects of success
• Whether misdiarising a court date constitutes wilful default

The application for rescission of the default judgment granted on 12 October 2016 was granted. The matter was to proceed to trial on the merits.

Good and sufficient cause for rescission of a default judgment under Rule 63(2) of the High Court Rules, 1971 requires consideration of three factors: (1) the reasonableness of the applicant's explanation for the default; (2) the bona fides of the application to rescind; and (3) the bona fides of the defence on the merits and whether it carries prospects of success. No single factor is decisive; all must be considered and examined together. An unsatisfactory explanation for default may be strengthened by a strong defence on the merits, while a satisfactory explanation may cause the court not to scrutinise too closely the defence on the merits. Misdiarising a court date, being a common mistake in legal practice, does not automatically constitute wilful default, particularly where the party's conduct shows they were not deliberately avoiding court. Where a matter involves immovable property with a complex litigation history and the defence raises bona fide issues with prospects of success, it is preferable that the matter be determined on the merits at trial rather than by default judgment.

The court observed that whilst it would have been preferable for the applicants' counsel to file a supporting affidavit, the omission was not fatal to the case where the applicants themselves had fully explained what happened on 13 October 2016 when they attended court with their lawyer. The court noted that if gross negligence is revealed as the reason for default, rescission must not be granted, but that was not the case here. The court remarked that holding title to property constitutes prima facie but not absolute proof of ownership, particularly where fraud is alleged in obtaining such title. The court commented that the matter had caused extensive litigation between the parties and should be fully ventilated at trial to ensure fairness.

This case demonstrates the Zimbabwean High Court's approach to applications for rescission of default judgments under Rule 63(2) of the High Court Rules, 1971. It confirms that courts will adopt a flexible, holistic approach when assessing 'good and sufficient cause', considering all three factors together (reasonableness of explanation, bona fides of application, and strength of defence on merits) rather than treating any single factor as determinative. The judgment shows the courts' preference for resolving disputes on the merits, particularly in property matters with complex litigation histories, rather than through default judgments. It also establishes that common mistakes by legal practitioners, such as misdiarising, will not automatically be treated as wilful default, especially where the party's prior conduct shows diligence. The case reinforces that holding registered title is not absolute proof of ownership where fraud is alleged, and that such allegations must be properly ventilated at trial.