Promise Danisa v Umkhonto Wenguquko Co-operative

The applicant was the widow of the late Manson Moyo who died on 7 July 1997. Manson Moyo had been the chairperson of the respondent co-operative and was entitled to reside in house number 171 Maphisa Growth Point in Kezi. Following his death, the applicant resisted moving out of the house. The respondent obtained a default judgment in HC 3041/09 on 18 March 2010 declaring the property to be held in trust for the respondent's members and ordering transfer of ownership. Subsequently, the respondent issued summons for eviction in HC 2130/10, which was served on the applicant on 21 October 2010. The applicant left the summons with Mr Gasela at the Bulawayo Legal Projects Centre, believing he was a legal practitioner when he was actually a paralegal. No appearance to defend was entered, and a default judgment for eviction was granted on 16 December 2010. The applicant was evicted on 11 February 2011. She filed an application for condonation of late filing of rescission on 23 February 2011.

• Whether the applicant was entitled to condonation for the late filing of an application for rescission of the default judgment
• Whether the applicant had provided an acceptable explanation for the delay in applying for rescission and for seeking condonation
• Whether the applicant had reasonable prospects of success in having the default judgment in HC 2130/10 rescinded
• The effect of the earlier default judgment in HC 3041/09 on the application

The application for condonation was dismissed with costs.

An applicant seeking condonation for late filing of a rescission application must: (1) provide an acceptable explanation not only for the delay in making the application for rescission but also for the delay in seeking condonation itself; (2) demonstrate reasonable prospects of success in the underlying application; (3) act as soon as possible upon becoming aware of the breach; and (4) cannot succeed where negligence by the party or their legal practitioners is the cause of the default. Furthermore, where an earlier judgment exists that would defeat the applicant's claim even if the later judgment were rescinded, the application has no prospects of success and must fail.

The court expressed skepticism about the applicant's claim to have only learned of the default judgment on 11 February 2011, noting that if this were true, she would have filed directly for rescission under Rule 63(1) rather than seeking condonation first. The court also observed that it was incomprehensible why the applicant's papers said nothing about what she had done or intended to do regarding the judgment in HC 3041/09. The court noted that documents such as a death certificate, letter of administration, and a letter from a ministry clerk stating someone is the 'true owner' are not proof of ownership and cannot withstand the force of a court order transferring property.

This case illustrates the strict application of procedural rules in Zimbabwean courts regarding condonation and rescission of default judgments. It emphasizes that parties seeking condonation must provide acceptable explanations for all delays, including the delay in seeking condonation itself. The case also demonstrates that negligence by a party and their legal representatives will not be excused, and that condonation applications must show reasonable prospects of success on the merits. Additionally, it highlights the importance of addressing all relevant judgments affecting one's rights, as the existence of an earlier unrescinded judgment can render subsequent applications futile.