Paul Gary Friendship v Jeffrey Dick

On 6 July 2011, the High Court granted a default judgment against the applicant (Friendship) at the instance of the respondent (Dick) in Case No. HC 3723/09. The judgment was granted in default after the applicant was barred for failing to file his plea. The applicant claimed he was unaware of the default judgment until 13 December 2011 when he discovered it from his erstwhile legal practitioners while consulting about a different matter. He had previously received notices of attachment but was advised by his then legal practitioners that they were attending to the matter. The applications for condonation and rescission of judgment were filed on 15 December 2011, more than five months after the default judgment. The Deputy Sheriff's return of service showed that attachment took place on 13 September 2011. Interpleader proceedings were requested by Denise Maria Baeta Abrunhosa, who claimed to be the applicant's partner and stated the attached property belonged to her. On 5 December 2011, the applicant was served with a letter threatening sequestration proceedings, which prompted him to institute the applications for rescission and condonation. The debt arose from ZW$63,700,000.00 paid by the respondent into an account held by Across Enterprises with instructions to convert to US dollars and repatriate out of the country.

• Whether condonation should be granted for the applicant's failure to file the application for rescission of judgment within the time prescribed by the Rules of Court
• Whether the applicant provided a reasonable and acceptable explanation for the delay of more than five months
• Whether the applicant's reliance on his erstwhile legal practitioners' alleged incompetence excused his non-compliance with the rules
• Whether the applicant had prospects of success on the merits to justify granting condonation
• Whether the application for rescission of judgment could properly be before the court without an order condoning its late filing

1. The application in Case No. HC12468/11 (condonation) is dismissed. 2. The application in Case No. HC 12469/11 (rescission of judgment) is struck off. 3. The costs in both cases shall be paid by the applicant.

1. Non-compliance with court rules by a party's legal practitioner is treated as non-compliance by the party himself. 2. A litigant seeking condonation for late filing must provide an acceptable explanation not only for the delay in making the application for rescission of default judgment, but also for the delay in seeking condonation itself. 3. Unsubstantiated assertions blaming erstwhile legal practitioners, without supporting affidavits or evidence of what the party himself did to protect his interests, do not constitute a reasonable and acceptable explanation for delay. 4. Where there is flagrant disregard of court rules without reasonable explanation, condonation may be refused whatever the merits of the applicant's case may be, even if blame lies solely on the attorney. 5. An application for rescission of judgment cannot properly be before the court in the absence of an order condoning its late filing where such condonation is required.

The court observed that the applications for condonation and rescission appeared to have been made to stave off or forestall threatened sequestration proceedings rather than from a genuine belief in having a meritorious defence. The court also noted that the applicant's partner initiated interpleader proceedings claiming the attached property belonged to her, while the applicant himself did nothing to protect his interests until threatened with sequestration, suggesting a lack of bona fides in the applicant's conduct throughout the proceedings.

This case reinforces important principles in Zimbabwean civil procedure regarding applications for condonation of late filing. It emphasizes that courts will not lightly excuse non-compliance with procedural rules, particularly where there is a substantial delay without adequate explanation. The judgment reaffirms the principle that a litigant cannot escape the consequences of their attorney's lack of diligence and that blame shifting to legal practitioners without supporting evidence is unacceptable. The case demonstrates that where there is flagrant disregard for court rules without reasonable explanation, condonation may be refused regardless of the merits of the underlying case. It also illustrates the interconnected nature of condonation and rescission applications, where failure to obtain condonation renders the substantive rescission application improperly before the court.