The applicants obtained a loan of US$250,000 from the respondent bank as working capital. When they delayed in repaying the loan, the respondent issued summons served on 2 November 2010. The applicants instructed Sawyer, Mkushi and Maupa to defend the matter, who then handed it to Hore and Partners. A notice of appearance to defend was filed on 16 November 2010. On 1 December 2010, a notice to plead and intention to bar was issued and served. The applicants failed to file their plea and default judgment was entered against them on 25 January 2011 under HC 7564/10. The applicants only became aware of the judgment when their property was advertised for execution. A writ of execution was served on 11 March 2011. The applicants filed applications for condonation and rescission of judgment on 23 May 2011, which was over one month after becoming aware of the judgment. On 4 May 2011, before filing the applications, the applicants had written to the respondent offering to settle the outstanding debt.
The application for rescission of judgment was dismissed with costs following the event.
The binding legal principles established are: (1) An applicant seeking rescission of a default judgment must cumulatively satisfy three requirements: provide an acceptable explanation for the default, demonstrate bona fides of the application to rescind, and show a bona fide defence on the merits. (2) Where an applicant attributes default to their legal practitioners' negligence, supporting affidavits from those practitioners are essential to discharge the onus of showing good and sufficient cause. (3) A legal practitioner's failure to comply with court rules or negligence is attributed to the client, and the client cannot escape the normal consequences of that relationship. (4) The court must consider all circumstances cumulatively in exercising its discretion whether to grant rescission, and strength on one factor (such as merits) cannot compensate for serious deficiencies in others (such as lack of good faith or inadequate explanation).
The court made several non-binding observations: (1) The court noted that the delay of just over one month was not inordinate and was understandable given the need to instruct new attorneys. (2) The court observed that ethical issues were raised concerning the conduct of Hore and Partners and Mpame and Associates, but the court was not in a position to pursue these issues without affidavits from those practitioners. (3) The court noted that the applicants' conduct in accepting Hore and Partners' representation without objection amounted to acquiescence. (4) The court indicated that applications for condonation 'should not be allowed to become an invitation to laxity' and that courts have been burdened with increasing applications for condonation due to attorney neglect, citing with approval the warning in Saloojee about considerations ad misericordiam.
This case is significant in Zimbabwean civil procedure (which shares common principles with South African law) for illustrating: (1) the cumulative nature of the requirements for rescission of default judgment - success requires satisfaction of all three factors (explanation for default, bona fides of application, and bona fides of defence); (2) the importance of obtaining supporting affidavits from legal practitioners when blaming them for the default; (3) the principle that an attorney's negligence is attributed to the client, following the established authority in Saloojee; (4) that good prospects on the merits alone are insufficient if the application lacks good faith or adequate explanation for default; and (5) that conduct inconsistent with the relief sought (such as offering to settle the full claim) may undermine the bona fides of an application for rescission.