The applicant sought rescission of a default judgment obtained against him by the first respondent in case no HC 8216/11. The applicant claimed to have filed a notice of appearance to defend, but the first respondent disputed its authenticity, stating: (1) no appearance to defend was ever received; (2) the document did not bear her legal practitioner's stamp; (3) there was no one named Loice at her legal practitioners who could have received it; and (4) the applicant admitted that a wrong case number was endorsed on the purported notice of appearance to defend. The underlying claim related to outstanding rental payments and utility bills (ZESA and Harare City Council). The applicant had already conceded liability for outstanding rentals but challenged the utility bills without providing alternative figures. The applicant also alleged that the first respondent caused him to unceremoniously vacate the leased premises, causing loss of business, but had taken no legal action to address this alleged wrong.
The application for rescission of judgment was dismissed with costs on the Attorney-Client Scale (punitive costs).
In applications for rescission of default judgment, the applicant must first satisfy the court that there was a reasonable explanation for the default before the court will consider whether a bona fide defence exists. Where the authenticity of a notice of appearance to defend is disputed, the applicant must provide credible evidence (such as affidavits from legal practitioners involved) to rebut allegations of forgery or inauthenticity; speculative submissions by counsel are insufficient. An applicant cannot establish a bona fide defence by conceding the principal claim while challenging ancillary amounts without providing alternative figures or evidence. The case must be built on the founding papers, not on heads of argument or oral submissions.
The court made strong obiter remarks discouraging the practice of parties attempting to submit additional papers to the court after submissions have closed and the matter is awaiting determination. Bere J characterized this as an improper attempt to influence the court "through the back door" and stated that such papers should not be allowed to influence the court's determination. The court also observed that the application "ought not to have been filed at all" and was "solely filed to delay the day of reckoning," indicating that such reckless prosecution of matters must be discouraged through punitive cost orders.
This case reinforces the strict requirements for rescission of default judgments in Zimbabwean civil procedure. It emphasizes that: (1) applicants must provide credible evidence, not speculation, to explain their default; (2) disputed documentary evidence (such as notices of appearance) must be properly authenticated through affidavits from relevant parties; (3) applicants must demonstrate a genuine bona fide defence beyond mere challenges to quantum without alternative proposals; (4) courts will not entertain attempts to supplement the record after submissions have closed; and (5) punitive costs may be awarded where applications are brought recklessly to delay enforcement of legitimate judgments.