Rufaro Marketing (Pvt) Ltd and Zebra Shopping Mall (Pvt) Ltd v Kandrick Investments (Pvt) Ltd

The respondent, Kandrick Investments (Pvt) Ltd, obtained a default judgment on 10 February 2025 under Case No. HCH 199/25 against Rufaro Marketing (Pvt) Ltd (first applicant) to enforce a purported compromise agreement requiring delivery of vacant possession of commercial premises. The application was allegedly served on 20 January 2025 on a receptionist, Michelle Mutolilo, at the first applicant's place of business. According to the applicants, Ms. Mutolilo became ill that afternoon and never transmitted the documents to management, resulting in the applicant's failure to oppose. The applicants only became aware of the default judgment when served with related proceedings under HCH 325/25. Two separate rescission applications were filed (HCH 710/25 and HCH 714/25) which were consolidated by court order on 10 June 2025. The first applicant sought rescission on grounds of lack of knowledge and disputed compromise agreement. The second applicant, Zebra Shopping Mall (Pvt) Ltd, sought rescission as it was not made a party despite its rights being affected. The first applicant's deponent, Juma Ulete, disputed signing the compromise agreement and claimed only to have signed a Build, Operate and Transfer (BOT) agreement. The property in question was leased to a third party whose rights had been confirmed in prior court proceedings.

• Whether the applicants' failure to attach the court order being challenged rendered the rescission application invalid
• Whether the first applicant was required to apply for upliftment of bar before seeking rescission
• Whether the board resolution authorizing the first applicant's participation in the proceedings was valid
• Whether the applicants established good and sufficient cause for rescission of the default judgment under Rule 27(1) of the High Court Rules, 2021
• Whether the applicants provided a reasonable explanation for the default
• Whether the application was brought bona fide
• Whether the applicants disclosed a defence on the merits carrying prospects of success

1. The application was granted. 2. The default judgment handed down on 11 February 2025 under Case No. HCH 199/25 was rescinded. 3. The first applicant was allowed to file its notice of opposition in Case No. HCH 199/25 within 10 days of the date of the order. 4. Each party to bear its own costs.

Under Rule 27(1) of the High Court Rules, 2021, a court may rescind a default judgment where the applicant demonstrates good and sufficient cause by satisfying the three-part test established in Stockil v Griffiths 1992 (1) ZLR 172 (S): (1) a reasonable explanation for the default; (2) bona fides of the application; and (3) a defence on the merits carrying prospects of success. These factors must be considered both individually and cumulatively. A reasonable explanation exists where default results from administrative mishap and responsible officers lacked actual knowledge of proceedings, rather than wilful conduct. Failure to attach a court order to a rescission application is not fatal where the order is clearly identified and the record incorporated by reference. A supplementary board resolution can cure defects in authority where challenged, provided it demonstrates company awareness and adoption of the proceedings. A defence carries prospects of success where material disputes of fact exist regarding the validity of agreements (including disputed signatures) and where enforcement would violate the principle of privity of contract by imposing obligations on non-parties whose rights have been confirmed in prior proceedings.

The court observed that once a default judgment is granted, an application for rescission is the proper recourse, not an application for upliftment of bar. The court noted that courts have consistently held that wilful default arises only where a litigant, with full knowledge of proceedings and consequences, deliberately elects not to act. The court commented that a judgment purporting to extinguish or override established third-party rights is legally unsustainable and risks being a brutum fulmen (an order incapable of lawful enforcement). The court noted that material disputes of fact regarding the validity of agreements are ordinarily incapable of resolution on affidavit and call for viva voce evidence or trial proceedings. The court emphasized that the application represented a genuine attempt to correct a procedural injustice and fell squarely within the indulgence envisaged by rescission jurisprudence, being brought in the interests of justice, fairness and the right to be heard.

This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments. It confirms that: (1) failure to attach a court order to a rescission application is not fatal where the order is clearly referred to and incorporated by reference; (2) technical defects in service that result in proceedings not reaching responsible decision-makers constitute reasonable grounds for rescission, even where formal service may have been effected; (3) supplementary board resolutions can cure authority defects where challenged; (4) the Stockil v Griffiths test remains the authoritative framework for assessing rescission applications; (5) disputed compromise agreements and potential violations of privity of contract principles constitute viable defences on the merits; and (6) courts will prioritize substantive justice and the right to be heard over technical procedural defaults where good and sufficient cause is established. The judgment emphasizes the court's discretion to grant rescission where there is no wilful default and genuine defences exist.