Patrick Maphosa and Isaac Maphosa v Champion Insurance Company (Pvt) Ltd and The Sheriff of Zimbabwe

The first respondent sued the applicants and another party for US$15,768.70, alleging misrepresentation regarding the sale of a Toyota Fortuner motor vehicle. The applicants entered appearance to defend on 30 January 2018. On 7 February 2018, they notified the first respondent that the summons was defective and intended to file an exception. The applicants filed an exception and application to strike out on 20 March 2018, which was outside the prescribed 20-day period. The first respondent filed a notice of intention to bar on 21 March 2018. The applicants responded with a plea in abatement on 23 March 2018 (within the dies inducae). On 5 July 2018, the first respondent applied for default judgment, claiming the applicants were barred, without disclosing the plea in abatement. Default judgment was granted on 25 July 2018. The applicants then sought rescission of the judgment under Rule 449.

• What constitutes a plea to a claim in terms of the rules of Civil Practice and Procedure
• Whether there is an automatic bar imposed on a defendant from filing an exception to the summons outside the period prescribed by Rule 119 of the High Court Rules
• Whether a defendant may file a plea in abatement in response to a notice of intention to bar
• Whether the default judgment was erroneously granted under Rule 449 due to the non-disclosure of the plea in abatement
• The scope of rescission under Rule 449 - whether the court is confined to the record of proceedings

1. The default judgment granted against the 1st and 2nd applicants by the High Court on 25 July 2018 in case number HC 324/18 was set aside. 2. The 1st respondent was ordered to bear the costs of the application.

When seeking default judgment, a party has a duty to disclose all responses filed by the defendant, including pleas in abatement. Failure to disclose such a pleading constitutes an error under Rule 449(1)(a) because the judgment was erroneously granted in the absence of material facts. A plea in abatement filed timeously in response to a notice of intention to bar is a valid answer to a claim and cannot be ignored; it must either be acknowledged or an application made to strike it out. Under Rule 449, the rescinding court is not confined to the record of proceedings and may consider new facts not before the court that granted the judgment. An error exists under Rule 449 where a judgment has been granted when the judge was unaware of all relevant facts, as opposed to situations where the judge had all facts and exercised discretion (which requires appeal, not rescission).

The court noted that Rule 119 does not impose an automatic bar for failure to file a plea, exception, or special plea within the prescribed period - this is why Rule 80 sets out a separate barring procedure. The court also observed that the plea in abatement filed by the applicants was "curious" because it stated they had already filed a plea in the form of an exception, which was conceptually questionable. Mathonsi J expressed some reservation about the Supreme Court's interpretation in Sammys Group that non-compliance with Rule 119 renders pleadings invalid without condonation, noting this despite the absence of an explicit sanction in the rule, but acknowledged being bound by that precedent.

This case is significant in Zimbabwean civil procedure law as it clarifies: (1) the scope of Rule 449 rescission applications, particularly that the rescinding court is not confined to the record but may consider new facts not before the original court; (2) the distinction between errors justifying rescission (where material facts were withheld) versus errors in judicial discretion (which require appeal); (3) the duty of parties seeking default judgment to make full disclosure of all responses filed, including pleas in abatement; (4) that a plea in abatement is a valid pleading that must be dealt with properly, either by accepting it or applying to strike it out, rather than ignoring it; and (5) the application of the Supreme Court's interpretation in Sammys Group regarding late filing of exceptions under Rule 119 requiring condonation.