Mbada Diamonds (Pvt) Ltd v S.M.C. Ltd and The Sheriff (N.O)

The respondent issued summons against the applicant on 10 December 2014 claiming US$231,933.00 for diamond drilling services rendered under case number HC 10947/14. The summons and declaration were served simultaneously on 11 December 2014. The applicant's legal practitioners entered appearance to defend on 8 January 2015. Despite the filing of appearance to defend, the respondent filed a chamber application for default judgment on 7 January 2015. On 10 February 2015, the respondent obtained default judgment against the applicant. A writ of execution was issued on 19 February 2015 and the Sheriff issued notice of removal on 27 February 2015. This prompted the applicant to lodge an urgent chamber application seeking stay of execution pending the outcome of its application for rescission of judgment under case number HC 1737/15.

• Whether default judgment was prematurely obtained when summons was served together with the declaration
• Whether Rule 17 read with Rule 119 provides for a dies induciae of 20 days when summons and declaration are served together, rather than the ordinary 10 days
• Whether the applicant was entitled to stay of execution pending rescission of the default judgment
• Whether the applicant was entitled to costs despite the respondent's consent to judgment

1. The default judgment granted by Justice Mtshiya on 10 February 2015 under case number HC 1094/14 was rescinded. 2. The respondent was ordered to meet the costs of these proceedings.

Where a plaintiff serves a declaration together with summons as provided for in Rule 113, the dies induciae for entering appearance to defend is 20 days (comprising the normal 10 days under Rule 17 plus an additional 10 days under the proviso to Rule 119), not the ordinary 10 days applicable when summons is served without the declaration. A default judgment obtained before the expiry of this 20-day period is premature and liable to be rescinded. The general rule that costs follow the event applies, and a party may be ordered to pay costs where it has put the other party to unnecessary expense by insisting on defending an indefensible position, notwithstanding a subsequent consent to judgment.

The court noted that it would have provided detailed reasons for its extempore judgment had the respondent not subsequently consented to judgment. The court cited with approval the approach in Munashe Exavier Wamabo N.O. v Melvin Boxter and Another HB 91/02 where Kamocha J refused to give reasons for judgment where the requester had withdrawn the application and consented to dismissal. The court also observed that the respondent's counsel had vacillated and appeared to be conceding the legal position during oral argument, and expressed surprise at receiving a request for reasons for judgment after counsel had initially indicated no reasons were required, followed by a consent to judgment without explanation or courtesy of withdrawing the request for reasons.

This case clarifies an important procedural issue in Zimbabwean civil procedure regarding the calculation of dies induciae (time period for entering appearance to defend) when summons and declaration are served simultaneously. It confirms the principle established in Finwood Investments that the dies induciae is 20 days (not 10 days) when summons is served together with the declaration under Rules 17, 113 and 119. The case also illustrates the court's discretion on costs, affirming that even where a consent order is eventually obtained, the party who unnecessarily put the other to expense by defending the indefensible may still be ordered to pay costs.