The 1st respondent instituted proceedings under case number HC 205/11 against the applicant seeking transfer of stand number 70250/2 New Lobengula from the applicant to herself. The applicant entered an appearance to defend but did so outside the prescribed time under the High Court Rules, 1971. Due to this late filing, the applicant was automatically barred. The 1st respondent applied for and was granted default judgment on 10 March 2011. The applicant's legal practitioners were notified by letter on 16 February 2011 that the appearance to defend was filed out of time and that the client was barred, but they took no action to regularize the position until after judgment was granted. The applicant then sought rescission of the default judgment under Rule 63 of the High Court Rules. The 1st respondent had purchased the disputed property and paid for it. The applicant claimed his maternal aunt Sepelong Nyathi had committed fraud by forging his signature on contractual documents, yet both had been represented by the same legal practitioner when filing the appearance to defend.
The application for rescission of judgment was dismissed with costs.
To obtain rescission of a default judgment under Rule 63 of the High Court Rules, an applicant must show good and sufficient cause, which includes: (1) a reasonable explanation for the default or non-compliance with the rules; (2) bona fides in the application; and (3) a bona fide defence on the merits. Where a party's legal practitioners are notified of non-compliance with procedural requirements and fail to take steps to regularize the position (such as seeking condonation), and the applicant fails to provide an adequate explanation for this failure or obtain affidavits from the legal practitioners explaining their conduct, the court will not grant rescission. The policy of finality in litigation militates against granting indulgences to parties who have been negligent or whose legal practitioners have failed to comply with court rules.
The court expressed concern about the proliferation of applications for rescission, condonation, and extensions of time arising from delays and incompetence by legal practitioners, stating that "incompetence is becoming a growth industry" and that courts are "beginning to hear more appeals for charity than for justice." The court emphasized the need to remind the legal profession of the principle that the law assists the vigilant, not the sluggard. The court also commented that in the case before it, petty disputes were being argued and re-argued until costs far exceeded the capital amount in dispute, which was undesirable.
This case reinforces the strict approach Zimbabwean courts take to compliance with court rules and procedural time limits. It emphasizes the policy of finality in litigation and serves as a warning against relying on rescission applications to remedy failures to comply with procedural requirements. The judgment demonstrates that courts will not readily grant rescission where litigants fail to provide reasonable explanations for non-compliance, fail to take remedial action when notified of irregularities, and present weak cases on the merits. It also illustrates the principle that parties can be penalized for the negligence of their legal practitioners, particularly where they fail to adequately explain or document what went wrong.