Syrus Mastara and Gloria Mastara v Tendai Kufa and Jockstar Investments

The first respondent had successfully obtained rescission of a default judgment that was granted against him on 19 July 2021. The magistrates' court found that the first respondent had not been informed of the court date as the application served on him did not show a court date on its face and did not have an interim order. The court concluded he was not in wilful default as he had not been made aware of the hearing date, and found reasonable prospects of success. The magistrates' court granted the rescission application with a direction that the matter be set down for hearing. The appellants then appealed to the High Court against this rescission order, on grounds that the court a quo erred in failing to consider and uphold a point in limine concerning the dirty hands principle.

• Whether an appeal lies against an interlocutory order granting rescission of a default judgment without leave of the court
• Whether section 40(2)(a) of the Magistrates Court Act permits appeals against all rescission orders
• Whether the rescission order constituted a final and definitive judgment appealable under section 40(2)(b) of the Magistrates Court Act

The appeal was struck off with costs.

An order rescinding a default judgment granted by a magistrates' court is an interlocutory order and is not appealable to the High Court unless: (1) it has the effect of a final and definitive judgment; or (2) it has been obtained on grounds which make the default order invalid; or (3) it has been obtained by fraud or mistake. Section 40(2)(a) of the Magistrates Court Act must be read together with the qualification in section 40(2)(b), which limits appeals to those orders having the effect of final and definitive judgments. Where a rescission order merely sets aside a default judgment and directs the matter to be set down for hearing, it does not constitute a final and definitive judgment and no appeal lies against it without leave of court.

The court noted that the second respondent (Jockstar Investments) had no interest in the matter, which was really between the appellants and the first respondent. The court also observed that the appellants' legal representative had "conveniently left out" the qualification in section 40(2)(b) and "ignored" relevant High Court precedent (Mushuma v Mushonga), suggesting a degree of judicial criticism of the selective presentation of legal authorities.

This case confirms and applies the established principle in Zimbabwean civil procedure that interlocutory orders granting rescission of default judgments are not appealable without leave, unless they have the effect of final and definitive judgments or fall within specific exceptions. It reinforces the proper interpretation of sections 39 and 40 of the Magistrates Court Act, clarifying that section 40(2)(a) must be read together with the qualification in section 40(2)(b). The case demonstrates the court's strict approach to ensuring appeals are properly before it and follows established procedural requirements.