Mgcinumuzi Nkomo v Naboth Chioreso

On 9 December 2019, respondent issued summons against appellant claiming payment of USD750.00, alleging that appellant signed an affidavit acknowledging his indebtedness and promising to pay before 31 August 2019. Appellant defaulted in payment. On 18 February 2020, appellant filed a notice to defend but did not file his plea within the timeline allowed by the Magistrates Court Civil Rules, 2018. On 5 March 2020, appellant was served with a notice to plead. Instead of filing a plea, on 10 March 2020, appellant filed a request for further particulars. On 19 March 2020, respondent applied for default judgment, which was granted on 6 June 2020. Appellant then made an application for rescission of judgment, which was dismissed by the magistrates' court on the grounds that appellant was in wilful default and had no prospects of success on the merits. Appellant appealed to the High Court.

• Whether the appellant was in wilful default when he failed to file a plea within the prescribed timeline and instead filed a request for further particulars after being served with a notice to plead
• Whether the appellant had prospects of success on the merits to warrant rescission of the default judgment
• Whether the magistrates' court correctly dismissed the application for rescission of judgment

The appeal was dismissed in its entirety with no order as to costs.

Once a litigant has not filed a plea within the timeline allowed by the rules of court and has been served with a notice to plead, the litigant no longer has the option or luxury to file what it wants (such as a request for further particulars) - it must comply and file a plea. Failure to do so constitutes wilful default. For rescission of judgment to succeed, an applicant must demonstrate both absence of wilful default and prospects of success on the merits.

The court observed that the allegation of duress in relation to the affidavit acknowledging indebtedness was merely a red herring with no basis on the facts. The court also noted that it could not award costs to the respondent despite the respondent succeeding, because the respondent was in default at the hearing of the appeal.

This case reinforces the procedural requirements under the Magistrates Court Civil Rules in Zimbabwe regarding compliance with notices to plead. It clarifies that once a notice to plead has been served, a litigant cannot file alternative documents such as requests for further particulars in lieu of a plea, and such non-compliance constitutes wilful default. The case also demonstrates the strict requirements for rescission of judgment, particularly the need to show absence of wilful default and prospects of success on the merits.