Rejoice Sibanda v Estate Late C Karpul

The respondent (Estate Late C Karpul) issued summons in Case No. HC 1951/09 against the applicant (Rejoice Sibanda) seeking cancellation of a lease agreement and eviction from premises at No. 12 Celrose Flats, Bulawayo. The basis was that the applicant had neglected to pay rentals in terms of a Rent Board order, resulting in arrears, and was subletting the premises without consent in breach of the lease agreement. The applicant, initially represented by Cheda and Partners, contested the action but only raised procedural objections in her plea and did not deny the rent arrears. On 16 November 2010, both the applicant and her legal practitioner defaulted at the pre-trial conference despite being properly served. Her defence was struck out and the respondent was granted leave to set the matter down on the unopposed roll. On 13 January 2011, default judgment was granted for cancellation of the lease, eviction, payment of arrear rentals and costs. On 16 February 2011 (more than one month after judgment), the applicant filed an application for rescission of judgment (HC 436/11) and an urgent application for stay of execution (HC 450/11). A provisional stay order was granted on 17 February 2011.

• Whether the applicant showed good and sufficient cause for rescission of judgment under Rule 63(2) of the High Court Rules, 1971
• Whether the applicant provided a reasonable explanation for her default at the pre-trial conference
• Whether the applicant demonstrated bona fides of the application to rescind
• Whether the applicant demonstrated a bona fide defence on the merits

1. The application for rescission of judgment in Case No. HC 436/11 is dismissed. 2. The application in Case No. HC 450/11 is dismissed and the provisional order discharged. 3. The applicant shall bear the costs on an attorney and client scale.

An applicant for rescission of judgment under Rule 63(2) of the High Court Rules must demonstrate good and sufficient cause by satisfying three conjunctive requirements: (1) a reasonable explanation for the default, (2) bona fides of the application to rescind the judgment, and (3) a bona fide defence on the merits. These factors must be considered in conjunction with one another and with the application as a whole. Failure to adequately satisfy any of these requirements, particularly when combined with delay in bringing the application and evidence of breach of contractual obligations, will result in dismissal of the rescission application.

The court made strong observations about the applicant's conduct, characterizing it as "a classic case of an abuse of process by a litigant who has shown no shame whatsoever even after being caught subletting the premises." This reflects judicial disapproval of litigants who attempt to use procedural mechanisms to delay enforcement of legitimate claims when they have no genuine defence and have clearly breached their contractual obligations. The court also observed that the applicant was "not being truthful" when she provided contradictory evidence about the relationship between herself and the alleged subtenants.

This case illustrates the strict application of the requirements for rescission of judgment in Zimbabwean civil procedure. It reinforces that applicants must satisfy all three requirements - reasonable explanation for default, bona fides of the rescission application, and bona fide defence on the merits - when considered together and as a whole. The case demonstrates the court's intolerance for abuse of process and its willingness to impose enhanced costs (attorney and client scale) where litigants show no genuine defence and engage in dishonest conduct. It also confirms that delay in seeking rescission (one month after judgment) combined with weak explanations and lack of merit will result in dismissal of the application.