Melina Matshiya (In her capacity as Executrix testamentary for Estate late Ettore Fumia) v George Stephen Fumia and Ellen Maria Fumia and Falcon Hauliers (Private) Limited

The late Ettore Pietro Fumia and his son George Stephen Fumia (first respondent) were engaged in a 17-year legal battle. The dispute centered on shareholding in Falcon Hauliers (Pvt) Ltd (third respondent), a property-owning company whose sole asset was immovable property in Kariba (the Nyami Nyami property). Ettore purchased the Nyami Nyami property in 1992 for ZW$1,300 but registered it in the third respondent's name. He developed it between 1993-1995 at a cost of ZW$288,269.85. On 15 November 1994, eight shares in the third respondent were allotted to Ettore. In June 1995, George wrote a letter regarding future share allotments. Relations deteriorated around 2000 after Ettore paid off George's company debts. On 30 June 2011, George and his wife Ellen (second respondent) filed HC 6280/11 seeking a declaratur that the 1994 share allotment to Ettore was unlawful. At that time, Ettore was terminally ill with prostate cancer and dementia, residing in Botswana. He was mentally and physically incapacitated, under 24-hour care, and could not recognize family. Service was improperly effected at his former Zimbabwe address. A default judgment was granted on 7 September 2011. Isabel Fumia (Ettore's wife) was appointed curator ad litem on 6 October 2011 and filed for rescission on 11 October 2011. Ettore died on 13 August 2012, and Melina Matshiya was appointed Executrix testamentary on 9 October 2012.

• Whether there was good and sufficient cause to rescind the default judgment in terms of Rule 63 of the High Court Rules 1971
• Whether the applicant was in wilful default
• Whether service of the court application in HC 6280/11 was properly effected
• Whether the respondents' claim had prescribed in terms of section 14 of the Prescription Act
• Whether the court should have proceeded in terms of Rule 449(1) instead of Rule 63
• Whether a curator ad litem should have been appointed in terms of Rule 249 before proceedings could continue against Ettore

1. The judgment granted by the court on 7 September 2011 is hereby set aside. 2. The first and second respondents shall pay the costs on an attorney and client scale.

Good and sufficient cause to set aside a default judgment under Rule 63 of the High Court Rules 1971 is established where: (1) the defaulting party was mentally and physically incapacitated due to terminal illness and dementia, rendering them unable to appreciate or respond to legal proceedings (absence of wilful default); (2) service was improperly effected at a former address when the party was resident abroad, requiring edictal citation under Order 6 Rule 44; (3) the applicant party failed to arrange appointment of a curator ad litem under Rule 249 when aware of the respondent's mental incapacity; (4) the applicant raises an arguable defense that the claim has prescribed under the Prescription Act; and (5) the applicant demonstrates an arguable defense on the merits. The test for 'good and sufficient cause' under Rule 63 includes consideration of the explanation for default, the bona fides of the applicant, and the prima facie strength of the defense. Wilful default generally denotes absence of good and sufficient cause, but occurs only when a party with full knowledge freely decides to refrain from appearing.

The court made several obiter observations: (1) A party seeking rescission should have clarity about which rule applies and not seek rescission under Rule 63 but then argue for Rule 449(1) only in heads of argument. (2) The tragic nature of protracted family litigation, particularly between father and son over 17 years, continuing even after the father's death. (3) The respondents should have known better than to obtain a default judgment against an incapacitated person and should have consented to setting it aside. (4) When a party institutes proceedings against someone they know or should know is mentally incapacitated, it is incumbent upon the applicant to arrange appointment of a curator ad litem under Rule 249(1)(a) to properly execute the proceedings. (5) The court expressed concern that service was attempted on the third respondent's address which was the same as the first and second respondents' residence, suggesting they effectively served themselves.

This case is significant in Zimbabwean civil procedure as it comprehensively addresses the requirements for rescission of default judgment under Rule 63 of the High Court Rules 1971. It establishes important principles regarding: (1) what constitutes 'good and sufficient cause' for rescission, particularly where a party is mentally and physically incapacitated; (2) the procedural requirements for proper service when a party resides outside Zimbabwe; (3) the obligation to appoint a curator ad litem under Rule 249 when a party is under mental or physical disability; (4) the distinction between applications under Rule 63 and Rule 449(1); and (5) the circumstances warranting punitive costs on an attorney-client scale. The case demonstrates the court's willingness to protect litigants who are incapacitated and unable to defend themselves, and to sanction parties who obtain default judgments in circumstances where service was improper and the other party was incapacitated.