The Minister of Local Government and National Housing and Minister of Justice and Legal Affairs v Langton Chigwida and J Kmwatsiya

The 1st respondent was the Director of Prisons and the 2nd respondent was an Assistant Commissioner of Prisons. Prior to leaving the prison services, they had been in occupation of government properties. When they left the service, the applicants instituted eviction proceedings against them. The respondents defended on the basis that government had offered to sell them the houses and they had accepted, creating a binding agreement of sale. The trial commenced and was set for continuation on 6 February 2002 at 10am before Blackie J. However, the applicants' counsel (Mrs Matanda-Moyo from the Attorney General's office) was appearing in the Supreme Court between 9am and 1pm. She instructed Mr Majuru to contact the respondents' counsel (Mr Chiutsi) to request the matter be stood down to 14:15hrs. No officer from the Attorney General's office appeared at 10am or by 11:30am when the court dismissed the applicants' claim. The applicants then sought rescission of the judgments under Rule 63 of the High Court Rules, 1971.

• Whether the applicants provided a reasonable and acceptable explanation for their default in appearing at the scheduled hearing
• Whether the application for rescission was bona fide and not made merely to delay proceedings
• Whether the applicants had a bona fide defence to the respondents' claim
• Whether the applicants established 'good and sufficient cause' for rescission under Rule 63 of the High Court Rules, 1971
• Whether Mr Majuru's supporting affidavit was properly before the court

1. The default judgment entered against the applicant on 6 February 2002 was rescinded. 2. The respondents were ordered to pay costs of the application.

For rescission of judgment under Rule 63 of the High Court Rules, 1971, an applicant must establish 'good and sufficient cause' by showing: (a) a reasonable and acceptable explanation for default; (b) that the application is bona fide and not made to delay proceedings; and (c) a bona fide defence. However, each element may be decisive on its own and the court need not necessarily determine all three elements if satisfied on the basis of one or more elements. Negligence by legal practitioners does not automatically defeat a rescission application; the negligence must be so gross as to amount to wilfulness. Where a legal practitioner takes positive steps to avoid default (such as attempting to communicate with opposing counsel and appearing at court at an agreed alternative time), and where the default arises from a legitimate competing obligation (such as Supreme Court proceedings which take precedence), the failure to send another representative does not constitute gross negligence amounting to wilfulness.

The court observed that it had initially considered it necessary to examine the record of proceedings to determine the bona fides of the applicants' claim, but ultimately concluded that since the matter had not been completed, the record would not assist in determining bona fides. The court also indicated that it was unnecessary to determine whether Mr Majuru's supporting affidavit was properly before the court (having been filed with the answering affidavit rather than the founding affidavit), as the affidavit did not take the matter any further. The court noted that there is almost always an element of negligence in defaults, and the question becomes whether it was gross negligence and whether it was so gross as to amount to wilfulness, requiring a weighing of the balance between the extent of negligence and the merits of the defence.

This case provides important guidance on the application of Rule 63 of the High Court Rules in Zimbabwe for rescission of judgments. It clarifies that while all three elements of the 'good and sufficient cause' test (reasonable explanation, bona fides, and prima facie defence) must be considered, any one element may be decisive in a particular case. The judgment demonstrates the court's approach to distinguishing between ordinary negligence and gross negligence amounting to wilfulness in the context of legal practitioners' defaults. It also reinforces the principle that Supreme Court proceedings take precedence over lower court matters, and that genuine attempts to communicate with opposing counsel and the court will be taken into account when assessing whether a default was wilful.