Mollyn Mutseyekwa v Hadji Mrisho Migilla

The respondent issued summons against the applicant on 28 October 2021 claiming a decree of divorce and ancillary relief under case number HCH5929/21. The applicant entered an appearance to defend on 7 December 2021 and filed her plea and counterclaim on 19 January 2022. At a Pre-Trial Conference (PTC) on 4 March 2025, the applicant was absent despite her legal practitioner attending. The court struck out the applicant's defence and counterclaim and referred the matter to the unopposed roll. On 27 March 2025, the matter was heard on the unopposed roll and an order was granted dissolving the marriage and distributing immovable property. The applicant had filed an earlier rescission application (HCHF 1132/25) explaining her non-appearance on 4 March 2025 was due to vehicle breakdown, but she withdrew that application on 8 April 2025. The applicant then brought the present application seeking rescission of the default judgment of 27 March 2025 under Rule 59(1) and Rule 27 of the High Court Rules, SI 202 of 2021.

• Whether there is good and sufficient cause to rescind the default judgment granted on 27 March 2025 under Rule 27 of the High Court Rules
• Whether the court is disabled from considering the merits of the rescission application because the applicant's defence was struck out by an earlier order
• Whether the applicant's founding affidavit was properly authenticated in compliance with Rule 85 of the High Court Rules
• What explanation the applicant must provide for default in a rescission application
• Whether the applicant demonstrated bona fides of her defence

The application for rescission of the order granted on 27 March 2025 was dismissed with costs.

In applications for rescission of default judgments under Rule 27 of the High Court Rules, SI 202 of 2021, an applicant must establish 'good and sufficient cause' by providing a clear and adequate explanation for the specific default that led to the judgment sought to be rescinded. Where an applicant fails to adequately explain the default giving rise to the judgment under review (in this case, the default on 27 March 2025), and instead focuses on explaining a different, earlier default (4 March 2025), the applicant has not satisfied the requirements for rescission. The mere assertion that one was not served with a Notice of Set Down, without further elaboration or supporting evidence, is insufficient to constitute good and sufficient cause. Furthermore, where an earlier order striking out a defence remains extant and unreversed, an applicant cannot obtain relief reinstating that defence through a subsequent rescission application that does not address the earlier order.

The court made observations regarding the authentication of affidavits sworn outside Zimbabwe under Rule 85 of the High Court Rules. The court noted that Rule 85(2) authorizes authentication by a notary public's signature and seal of office, Rule 85(6) allows the court to accept documents shown to the court's satisfaction to have been actually signed by the purported signatory, and Rule 85(7) authorizes authentication by electronic means. These provisions together provide flexible means for proper authentication of foreign affidavits. The court also observed, citing Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998(1) ZLR 368(S), that the requirement of 'good and sufficient cause' gives the court wide discretion, and it is not possible to provide an exhaustive definition of what constitutes sufficient cause. The court noted that even where there has been wilful default, there may still sometimes be good and sufficient cause for granting rescission, depending on factors such as the motive behind the default.

This case clarifies the application of Rule 27 of the High Court Rules, SI 202 of 2021 regarding rescission of default judgments in Zimbabwe. It emphasizes that applicants must provide clear and specific explanations for the particular default they seek to rescind, not conflate different defaults. The case demonstrates that where an applicant seeks to rescind a subsequent default judgment (27 March 2025) but fails to adequately explain that specific default while extensively addressing an earlier default (4 March 2025), the application will fail. It also confirms that Rule 85 allows for proper authentication of affidavits executed outside Zimbabwe by notaries public, and that courts retain discretion to consider the merits and bona fides of defences in rescission applications despite earlier orders striking out defences. The case illustrates the interconnected nature of procedural orders and the consequences of withdrawing earlier rescission applications.