Olimas Engineering (Private) Ltd t/a F and R Travel Tours and Car Sales v Old Mutual Asset Managers Zimbabwe

The parties entered into a contract in terms of which the respondent purchased and fully paid for two vehicles. The applicant failed to deliver the motor vehicles as agreed. The respondent issued summons which were served on 28 August 2007. The applicant, through its legal practitioners Messrs Chikumbirike and Associates, entered appearance to defend and filed a plea admitting the existence of the contract. The matter was set down for trial before Makarau J. When the court re-assembled, the applicant's legal practitioners advised that they were withdrawing the appearance to defend because it had been filed in error as they had not been instructed by the defendant. The withdrawal was done in open court in the presence of the applicant's directors and representatives, including the deponent to the founding affidavit. Judgment in default was then applied for and granted. The applicant sought an order rescinding that default judgment.

• Whether there was good and sufficient cause to rescind the default judgment
• Whether the applicant was in wilful default
• Whether the applicant had a bona fide defence to the action

The application was dismissed with costs.

An application to rescind a default judgment can only succeed if there is good and sufficient cause, which requires the applicant to show: (1) that they were not in wilful default; and (2) that they have a bona fide defence to the action. Where a party deliberately withdraws its appearance to defend in open court in the presence of its directors and representatives without objection, such conduct constitutes wilful default that bars rescission of the subsequent default judgment.

The court observed that even if the wilful default hurdle could be overcome, the applicant appeared to have no defence on the merits, having entered into a contract of supply, received full payment, and failed to deliver the goods.

This case reinforces the principles governing rescission of default judgments in Zimbabwe (and applicable in South African law), emphasizing that rescission will only be granted where the applicant demonstrates absence of wilful default and a bona fide defence. It illustrates that deliberate withdrawal of appearance to defend in open court, particularly in the presence of the party's representatives without objection, constitutes wilful default that precludes rescission.