The first respondent instituted summons proceedings against the applicant on 27 February 2012, which was served on 7 March 2012. On 12 March 2012 (2 days into the dies inducae), the applicant entered appearance to defend and signed the appearance book at the registry in terms of r 48. Written notice of appearance was stamped by the registrar but was not given to the first respondent or its legal practitioners, having been directed to the wrong set of legal practitioners (Mavhunga & Sigauke). Unaware of the appearance, the first respondent moved for judgment, which was granted by Karwi J on 26 March 2012. The first respondent then issued a writ and instructed the Deputy Sheriff to remove the applicant's stock in trade from its various shops around Harare without notice on 16 April 2012. On 17 April 2012, the applicant's representative brought to the first respondent's attention that appearance to defend had been entered and judgment was granted in error. The first respondent did not stay execution, prompting this urgent application for provisional relief staying execution pending a rescission of judgment application.
The provisional order was granted. The execution of the judgment of 26 March 2012 was stayed pending determination of the rescission of judgment application. The Deputy Sheriff was directed to release all goods and stock removed from the applicant's 7 shops. The applicant was ordered to bear the costs of execution.
When considering an application for stay of execution pending rescission of a default judgment under r 449(1)(a) on the ground that judgment was 'erroneously granted in the absence of any party affected thereby', once the court finds that judgment was erroneously granted against the defendant (either because of judicial error in failing to observe the notice of appearance or because of delay by registry staff in placing the notice in the court file), execution must be stayed pending determination of the rescission application. Where it is conceded that judgment was granted in error, it cannot properly be argued that the rescission application has no merit, and to the extent it has merit, execution cannot be allowed to continue. However, failure to comply with the peremptory requirement in r 49 to serve written notice of appearance on the plaintiff or his legal practitioner within 24 hours will result in the party who failed to comply bearing the wasted costs of execution, notwithstanding that execution is ultimately stayed.
The court noted that removal of goods without notice under r 326A is justified to prevent concealment of property, and this was vindicated in the present case where the applicant did conceal property from shop number 7. The court also observed that the first respondent lost the right to continue execution only from the point at which they were notified on 17 April 2012 that appearance had been entered, not before, as removal had already occurred on 16 April 2012.
This case is significant in Zimbabwean civil procedure law as it clarifies the approach courts should take when default judgment has been erroneously granted despite appearance to defend having been entered. It establishes that once a judgment is found to have been erroneously granted due to failure to note an appearance to defend (whether through judicial oversight or registry delay), execution should be stayed pending rescission, regardless of the merits of the defence. However, it also emphasizes the importance of strict compliance with procedural rules regarding service of notice of appearance, and that failure to comply with such peremptory requirements may result in adverse costs orders even where the party ultimately succeeds in staying execution. The case balances procedural fairness with procedural discipline.