Marvel Mtisi v Murombo Josiah Mimana and Others

The applicant and the 1st respondent were formerly in an unregistered customary union and have a pending matter (HCHF1566/25) regarding apportionment of assets acquired during the union. They also have disputes regarding the running of two companies (MIMJ Enterprises (Pvt) Ltd and MIMJ Mining Corp (Pvt) Ltd) registered during the subsistence of their union. On 20 June 2025, the court granted an interim interdict in HCH2717/25 requiring both parties to jointly administer the companies' affairs. On 30 June 2025, the 1st respondent obtained a default judgment in HCH2552/25 removing the applicant as director of the 2nd respondent company. The applicant claimed she was served with summons and declaration on 9 June 2025 but failed to enter an appearance to defend. The applicant sought rescission of the default judgment in terms of Rule 29, arguing it was granted in her absence and in error given the earlier interdict order in HCH2717/25.

• Whether the applicant properly invoked Rule 29 for rescission of the default judgment
• Whether the applicant could be considered an 'absent party' within the meaning of Rule 29(1)(a) when she had been cited but failed to enter an appearance to defend
• Whether the default judgment was granted in error
• Whether the applicant should have proceeded in terms of Rule 27 instead of Rule 29
• Whether an application founded on the wrong rule can be entertained by the court

A. The point in limine raised by the 1st and 2nd Respondents that the application is improperly before the court be and is hereby upheld. B. Consequently, the application be and is hereby struck from the roll with costs.

A party who has been properly cited in proceedings and called upon to respond cannot be considered an "absent party" within the meaning of Rule 29(1)(a) of the High Court Rules, even if that party fails to enter an appearance to defend. Once a party has been properly cited and served with process, their subsequent failure to appear does not constitute "absence" for purposes of rescission under Rule 29. Such a party should instead proceed under Rule 27 for rescission of a default judgment. An application that is founded on the wrong rule or wrong cause of action is improperly before the court and should be struck from the roll rather than dismissed, to allow the applicant an opportunity to rectify the procedural defect.

The court observed that it is basic practice and a prerequisite that any application grounded on a statutory provision or rule of court should cite the relevant provision or rule, either in the heading or in the founding affidavit. This enables the court to immediately understand its jurisdiction and the nature of the application. The court noted that the applicant's legal practitioners should have been aware of the proof of service when they perused the record in HCH2552/25, and it was unclear why this fact was completely ignored in the founding affidavit and only addressed in the answering affidavit after being raised by the respondents. The court also noted that where there is proof of service, one might conclude that a party waived their rights arising from earlier court orders (such as the interdict in HCH2717/25).

This case clarifies the interpretation of Rule 29(1)(a) of the High Court Rules regarding rescission of default judgments. It establishes that a party who has been properly cited and served with process, but who fails to enter an appearance to defend, cannot be considered an "absent party" for purposes of Rule 29. The case reinforces the importance of selecting the correct procedural rule when approaching the court and emphasizes that applications must properly specify the legal provision upon which they are founded. It also distinguishes between striking a matter from the roll (which allows the applicant to rectify defects) versus dismissal (which would bar the applicant from pursuing the matter). The judgment provides guidance on when Rule 29 versus Rule 27 should be invoked for rescission applications.