Raston Chinyamunyamu and PTA Properties (Private) Limited and Probity Multi Agents (Private) Limited v Cen Michael's Investments (Private) Limited

The respondent, a former tenant, issued summons on 14 December 2012 for refund of money paid to the former landlord (applicants) as goodwill, deposit, and damages for loss of profit. The applicants filed an appearance to defend on 21 December 2012. On 16 January 2013, the respondent filed and served a notice of intention to bar. No plea was filed within the required 5 days from service. On 24 January 2013, the respondent barred the applicants. The applicants filed a plea and counterclaim on 25 January 2013, after being barred. On 28 January 2013, the respondent indicated they would apply for default judgment. Despite undertaking on 30 January 2013 to apply for upliftment of bar, the applicants took no action. Default judgment was obtained on 15 May 2013. The applicants only reacted formally on 28 August 2013 (after execution proceedings commenced on 22 August 2013) by filing an application for rescission of the default judgment. The applicants admitted the respondent was evicted and that they received money from the respondent for goodwill.

• Whether good and sufficient cause existed to rescind the default judgment under Rule 63 of the High Court Rules
• Whether the applicants provided a reasonable explanation for their default in filing the plea
• Whether the applicants demonstrated bona fides in their application
• Whether the applicants had prospects of success on the merits
• Whether new grounds can be raised for the first time in an answering affidavit in application proceedings

The application for rescission of judgment is dismissed, with costs.

In an application for rescission of default judgment under Rule 63, the court must be satisfied that there is good and sufficient cause, which requires: (1) bona fides of the application; (2) a reasonable explanation for the default; and (3) prospects of success on the merits. An applicant's explanation for default must be properly corroborated with evidence; uncorroborated assertions of illness or negligence will not suffice. In application proceedings, an applicant must stand or fall by the founding affidavit and the facts alleged therein; new grounds for the application cannot be raised for the first time in the answering or replying affidavit. Where any of these requirements is not met, the court has no legal basis to grant rescission of the default judgment.

The court observed that where an applicant alleges severe illness as an explanation for non-compliance with court rules, one would expect that immediate medical attention was sought and proof of medical attendance should be filed. The court also noted that failure to provide supporting affidavits from persons whose conduct is alleged to explain the default (such as legal practitioners alleged to have been negligent) must inevitably lead the court to draw the inference that the applicant is not being truthful. The court further indicated that vague, unsubstantiated allegations (such as referring to a principal merely as a "Chinese national" without providing any name or particulars) cannot be taken seriously by the court.

This case reinforces important procedural principles in Zimbabwean civil procedure (applicable to South African law given the shared legal heritage and similar High Court Rules): (1) It emphasizes the strict requirements for rescission of default judgment, requiring applicants to provide credible, corroborated explanations for defaults; (2) It confirms that uncorroborated assertions, particularly regarding illness or legal practitioners' negligence, will not constitute reasonable explanations without supporting evidence; (3) It reaffirms the fundamental rule in application proceedings that applicants must present their complete case in the founding affidavit and cannot introduce new grounds or explanations in subsequent affidavits; (4) It demonstrates the court's approach to assessing prospects of success, particularly where admissions have been made that undermine the defence. The judgment serves as a cautionary tale about the importance of timeously complying with procedural rules and providing proper evidence when seeking indulgences from the court.