Pathacres (Private) Limited v Timothy Tendai Myambo

On 22 January 2019, the respondent (Myambo) obtained a default judgment against the applicant (Pathacres) under case HC 209/18, ordering transfer of Lots 18, 19, 20, 21 and 28 of the Willows of Clare Estate Ranch. The summons had been served at No 303 Lister House, Jason Moyo Avenue, Harare, an address used by applicant's agents for filing annual returns with the Registrar of Companies, by affixing at the door. Applicant contended it became aware of the default judgment only on 16 January 2020 when summons under a related case (HC 270/19) were served. On 30 January 2020, applicant filed an application for rescission of the default judgment. Applicant denied selling the plots to respondent, claiming respondent contracted with Takawira Zembe (a shareholder) and only paid US$15,000 for a 6-hectare piece of land. Applicant also stated that no subdivision permit, certificate of No Present Interest, or approved diagrams existed for the transfer. The two cases (HC 26/20 and HC 144/21) were consolidated by consent.

• Whether the application for rescission of judgment was made out of time
• Whether the applicant was in wilful default when judgment was granted
• Whether the applicant established good and sufficient cause for rescission of the default judgment
• Whether the applicant has a bona fide defence to the respondent's claim

a) Application for rescission of judgment granted in default under case No. HC 209/18 is granted. b) No order as to costs.

For rescission of a default judgment to be granted: (1) the applicant must provide an acceptable and reasonable explanation for the default and timing; (2) wilful default occurs only when a party with full knowledge of service or the set down date freely decides to refrain from appearing; (3) service at an address used only by agents for administrative purposes, without personal service at the company's usual address, does not establish wilful default; (4) to establish a bona fide defence, an applicant need only allege facts sufficient to constitute an answer to the plaintiff's claim if pleaded and accepted at trial - the merits are not to be investigated at the rescission stage; (5) matters requiring full ventilation of facts regarding written agreements, amendments, oral agreements, and payment terms should proceed to trial rather than be determined summarily on rescission applications.

The court noted that the pristine accepted practice of Zimbabwean courts from time immemorial is to rescind judgments granted in default so that parties could be heard on merits, though this applies when there is a good and appropriate case. The court also observed that mere negligence is not itself a sufficient reason for refusing to grant relief (citing Minister of Home Affairs v Vuta). On costs, the court commented that while respondents are usually entitled to oppose rescission applications and applicants typically bear costs, each case must be decided on its peculiar facts, and a litigant who "snatches a judgment" may be expected to consent to rescission or pay costs of opposition in proper cases. The court also noted with disapproval the respondent's inappropriate letter of 3 May 2022 seeking the judge's recusal (copied to the President's Office, Anti-Corruption Commission, and other high officials), though the request was ultimately withdrawn by counsel.

This case reinforces the Zimbabwean courts' established practice of favoring rescission of default judgments to allow parties to be heard on merits, provided proper grounds are established. It clarifies the requirements for establishing wilful default (requiring full knowledge and conscious decision not to appear) and emphasizes that service at an agent's address used only for administrative purposes does not constitute proper service on a company. The case also demonstrates the court's approach to determining bona fide defences in rescission applications - requiring only that sufficient facts be pleaded that could constitute an answer to the claim if proved at trial, without investigating the merits at the rescission stage. The postponement of costs until final determination reflects the court's flexibility in balancing the rights of parties who oppose rescission applications with the policy favoring adjudication on merits.