Nyasha Tinarwo and Talent Tinarwo v Clemence Ndamba and Pasca Chipinda

The appellants and respondents entered into a joint venture to operate a college. Irreconcilable differences arose making it impossible to continue operating together. The respondents issued summons seeking their share of assets from the partnership, a contribution made towards buying a stand, and a specified amount for goodwill. The appellants failed to attend trial on 15 October 2018 and a default judgment was granted dissolving the partnership and ordering the appellants to hand over the college registration certificate, pay $700.00 towards the purchase of stand 184 Stoneridge, pay $1,300.00 for goodwill, and $250.00 for their joint share of assets, plus costs on an attorney-client scale. The appellants claimed they only learned of the default judgment a year later and applied for rescission, which was refused by the lower court.

• Whether the appellants were in wilful default when they failed to attend trial
• Whether the appellants provided a reasonable explanation for their delay of one year in seeking rescission
• Whether the appellants demonstrated prospects of success on the merits
• Whether the Ministry of Education should have been joined as a party
• Whether the requirements for rescission of default judgment were satisfied

The appeal was dismissed with costs on 26 June 2022 (note: the judgment states 26 June 2022 in the first paragraph but the heading shows the judgment was delivered on 24 August 2022).

For rescission of default judgment to succeed, an applicant must satisfy all three material requirements: (1) absence of wilful default; (2) a reasonable explanation for the delay; and (3) bona fide prospects of success on the merits. Where an applicant blames their legal practitioner for non-attendance at trial, a sworn affidavit from the legal practitioner is required to explain the circumstances - a mere letter is insufficient, particularly where the record shows that proper service of notice was effected. A party cannot escape responsibility by blaming their lawyer entirely, as clients have a duty to follow up on their cases. The onus is on the applicant seeking rescission to prove prospects of success with cogent evidence; courts will not grant rescission in the absence of such proof. Non-compliance by a legal practitioner is attributed to the client.

The court made observations about the relationship between client and lawyer, noting that a client has a duty to follow up their case with their lawyer and cannot simply leave matters entirely in the lawyer's hands without any enquiry or follow-up. The court also observed that lumping all blame on the lawyer was unreasonable in the circumstances. Regarding the non-joinder argument, the court observed that the Ministry of Education's interest was purely administrative and had nothing to do with the substantive issues between the parties, making joinder unnecessary.

This case reinforces the strict requirements for rescission of default judgment in Zimbabwean civil procedure. It emphasizes that: (1) A party cannot solely blame their legal practitioner for default without providing proper sworn evidence (affidavit) from the legal practitioner explaining what occurred; (2) Clients have a duty to follow up on their cases with their lawyers and cannot absolve themselves of all responsibility; (3) Proof of service on a responsible person at the legal practitioner's office is sufficient evidence of service; (4) All three requirements for rescission (absence of wilful default, reasonable explanation for delay, and bona fide defence/prospects of success) must be satisfied; (5) The onus is on the applicant for rescission to provide cogent evidence of prospects of success, not merely make bare allegations.