McDonald Masimba v Chiedza Chado

The respondent obtained a default judgment against the applicant (third defendant) on 23 August 2017, ordering him and the second defendant to pay delictual damages of US$13,246.50 arising from a motorbike accident, plus costs. The applicant had entered an appearance to defend, issued a request for further particulars, and filed a plea on 28 August 2017. The applicant was notified that default judgment had been obtained against him despite having filed these pleadings. There had been a time lapse in the proceedings with inaction on the part of the respondent, and the matter had to be reinstated on the court roll. The applicant sought rescission of the default judgment.

• Whether the applicant demonstrated 'good and sufficient cause' to rescind the default judgment in terms of Order 9 Rule 63 of the High Court Rules, 1971
• Whether the applicant's explanation for default was reasonable
• Whether the application for rescission was brought bona fide
• Whether the applicant had a bona fide defence on the merits with prospects of success
• Whether the applicant was in wilful default

Rescission of judgment granted. Costs ordered to be costs in the cause.

For rescission of a default judgment to be granted under Order 9 Rule 63 of the High Court Rules, 1971, an applicant must demonstrate 'good and sufficient cause' by establishing: (1) a reasonable explanation for the default; (2) that the application is brought bona fide; and (3) a bona fide defence on the merits with prospects of success. Wilful default occurs only when a party, with full knowledge of service or set down and the risks of default, freely decides to refrain from appearing. Where a party has actively participated in proceedings by entering appearance, filing requests for particulars, and submitting pleadings, such conduct is inconsistent with wilful default and supports rescission where triable issues exist.

The court observed that there had been a time lapse occasioned by inaction on the part of the respondent, and the matter had to be reinstated on the court roll. The court noted that the default judgment obtained against the applicant and one Kudakwashe Garise did not stipulate or render liability jointly and severally between the two defendants. The court also noted that there was correspondence between the parties' legal practitioners seeking explanation as to the circumstances under which the default judgment was obtained, which further demonstrated the applicant's engagement with the process.

This case illustrates the application of the well-established Stockil v Griffiths test for rescission of default judgments in Zimbabwean law. It demonstrates that where a party has taken active steps to defend proceedings (entering appearance, filing particulars, submitting a plea) but default judgment is nevertheless obtained, this militates against a finding of wilful default. The case reinforces that courts will grant rescission where a party can show they were genuinely engaged in the litigation process and have raised triable issues with prospects of success. It provides guidance on what constitutes wilful default versus inadvertent default in civil procedure.