OTC International GmbH (first respondent) issued summons against Senatar (Pvt) Ltd (applicant) for recovery of USD673,146.24 in case HC 11514/16. The applicant entered appearance to defend and filed three special pleas plus a plea on merits. The matter progressed to pretrial conference stage. On the date of the pretrial conference (2 March 2018), the applicant did not attend. The applicant's corresponding legal practitioner, Mrs N Tachiona, had her own matter in Bulawayo set down for 28 February 2018. When the notice of set down was served on 26 February 2018, Mrs Tachiona did not see it before leaving for Bulawayo. Consequently, the applicant's plea was struck out and default judgment was entered against it on 2 March 2018. The applicant learned of the default judgment on 5 March 2018 and brought this rescission application. The underlying claim related to the purchase of buses from Yutong China, with the applicant disputing the existence of a contract with the first respondent.
The application for rescission of the default judgment was granted. Costs of the application were ordered to be costs in the cause.
A party seeking rescission of a default judgment under Order 9 Rule 63 of the High Court Rules 1971 must prove on a balance of probabilities that it was not in wilful default. Where a matter has progressed to pretrial conference stage with all pleadings closed and a party is found not to be in wilful default, equity, justice and fairness require that the party be allowed to prosecute its defence in a full trial on the merits. An explanation for non-attendance will be accepted as reasonable where the legal practitioner had a conflicting court engagement and did not see the notice of set down before leaving for that engagement, provided there is no motive to misrepresent the facts.
The court observed that if the applicant did not have a defence, the rules of court provide various alternatives to the first respondent, including an application for summary judgment, to curtail the duration of trial. The court also made the obiter comment that it was disturbing that the first respondent strongly opposed the application on flimsy reasons, which informed the court's decision not to award costs to the first respondent despite its opposition.
This case is significant in Zimbabwean civil procedure law as it demonstrates the application of the principles governing rescission of default judgments under Order 9 Rule 63 of the High Court Rules 1971. It emphasizes the importance of equity, justice and fairness in allowing parties to have their cases heard on merit where they have not been in wilful default. The judgment also illustrates the court's approach to assessing the credibility of explanations for non-attendance and the appropriate stage at which to determine the merits of a defence when pleadings have already been filed and closed.