On 30 September 2015, the parties attended a Pre-Trial Conference before Justice Musakwa where they agreed to hold further meetings to resolve certain issues. On 29 October 2015, a meeting was held at the applicant's counsel's office with ZINWA officials and their legal practitioners to prepare for a scheduled Pre-Trial Conference on 30 October 2015 at 09:00hrs. The parties failed to reach agreement on payment and set-off issues but agreed to appear before the Pre-Trial Judge the following day. On 30 October 2015, the applicant's counsel arrived 10 minutes late, having lost track of time while doing office work and waiting for his clients. Neither the legal practitioner nor the applicant's representatives appeared on time, and default judgment was granted. The applicant sought rescission of the default judgment under Rule 63(2) of the High Court Rules 1971, arguing there was no wilful default.
The application for rescission of default judgment was dismissed. Each party was ordered to bear its own costs.
For rescission of default judgment under Rule 63(2) of the High Court Rules 1971, an applicant must demonstrate good and sufficient cause by satisfying the court cumulatively on: (1) a reasonable explanation for the default; (2) bona fides of the case on the merits; and (3) bona fides in seeking rescission. A client cannot escape responsibility for default by solely blaming their legal practitioner's negligence. Where neither the legal practitioner nor the client's representatives appear at a scheduled court proceeding, and no satisfactory explanation is provided for the client's non-appearance, rescission will not be granted regardless of other factors. A litigant must demonstrate what steps were taken to ensure proper prosecution of the matter and cannot remain passive while leaving everything to their attorney. The principle of finality in litigation requires courts to refuse rescission where there is insufficient diligence by both legal practitioners and their clients.
The court made observations about the growing trend of applications for rescission and condonation arising from delays by parties or their lawyers, citing McNally JA's comments in Ndebele v Ncube that 'incompetence is becoming a growth industry' and that courts are 'beginning to hear more appeals for charity than justice.' The court also noted that while prospects of success on the merits are a relevant consideration, they are not necessarily decisive in rescission applications, particularly where there is a lack of diligence. The court observed that it is uncommon for a legal practitioner to depose to an affidavit on behalf of a client in such circumstances, and that an affidavit from the applicant itself would have been more appropriate to explain why its representatives failed to appear. The court emphasized the maxim 'vigilantibus non dormientibus jura subveniunt' (the law assists the vigilant, not the sluggard) as a reminder to the legal profession of their duties.
This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments. It emphasizes that: (1) the test for rescission requires cumulative consideration of all factors, not isolated focus on one element; (2) clients bear responsibility for ensuring proper prosecution of their matters and cannot simply blame their legal practitioners for failures; (3) both the legal practitioner and the client must provide satisfactory explanations for default; (4) courts will uphold the principle of finality in litigation and not readily grant rescission where there is insufficient diligence; and (5) while prospects of success are considered, they are not determinative where the explanation for default is fundamentally unsatisfactory. The judgment serves as a warning to both legal practitioners and their clients about the consequences of failing to attend scheduled court proceedings and the high threshold for obtaining rescission of default judgments.