The National Prosecuting Authority v Patrobs Dube and The Civil Service Commission

The 1st respondent (Patrobs Dube) was employed as a public prosecutor at the Regional Court in Bulawayo. In 2012, he was charged with participating in an illegal collective job action, found guilty, and discharged from the civil service on 18 April 2013. He appealed to the Labour Court, which on 19 February 2014 ordered his reinstatement or payment of damages in lieu. On 15 August 2016, the 1st respondent filed an application for a declaratory order under section 34(4) of the National Prosecuting Authority Act, seeking to be declared a "transferred member" of the National Prosecuting Authority entitled to all rights and privileges. The application was served on the NPA and the Attorney General's Office on 16 August 2016. On 22 September 2016, BERE J granted the declaratory order in default. The NPA filed an application for rescission of judgment on 6 October 2016, claiming the delay was caused by papers being sent to head office in Harare and a lack of understanding by law officers. The NPA failed to comply with the declaratory order and did not seek suspension of the order pending the rescission application.

• Whether the applicant provided good and sufficient cause for rescission of the default judgment under Rule 63 of the High Court Rules
• Whether the applicant provided a satisfactory explanation for the delay in responding to the initial application
• Whether the applicant had reasonable prospects of success on the merits
• Whether the applicant's bona fides were established
• Whether the attempted amendment of parties by notice of amendment (without court order) was valid under Rule 132
• Whether the court should grant audience to a party in contempt of a court order
• Whether the 1st respondent qualified as a 'transferred member' under section 32 of the National Prosecuting Authority Act

The application for rescission of judgment was dismissed with costs.

In applications for rescission of default judgment under Rule 63, an applicant must establish 'good and sufficient cause' by providing: (1) a full, candid and honest explanation for the default that identifies the specific individuals responsible and explains what occurred during periods of delay; (2) bona fides on the part of the applicant; and (3) reasonable prospects of success on the merits. The acts and omissions of an applicant's officers and agents will be visited upon the applicant. Where there is no acceptable explanation for periods of delay, or no explanation at all, and where the applicant has not been candid and bona fide, the court will refuse to grant rescission regardless of prospects of success. An amendment to pleadings can only be made by court order pursuant to an application under Rule 132, not by mere filing of a notice of amendment. Under section 32 of the National Prosecuting Authority Act, an employee who had been reinstated by the Labour Court prior to the fixed date, and who was not facing disciplinary proceedings on that date, qualifies as a transferred member by operation of law.

The court observed that while a party in contempt of a court order can be refused audience until contempt is purged, the court retains discretion to hear the matter to bring finality to proceedings. The court commented that the principle that conduct of legal practitioners can be visited upon their clients should be extended to individual officers of an applicant organization who are themselves often legal practitioners. The court noted that the applicant's handling of the matter was done in a 'cavalier fashion' and appeared to be filed as a matter of course without genuine desire to obtain relief, suggesting the applicant was not acting in good faith.

This case reinforces important principles in Zimbabwean civil procedure regarding applications for rescission of default judgments. It emphasizes that applicants must provide full, candid explanations for delays, identifying specific individuals responsible and obtaining their statements where necessary. The judgment clarifies that the conduct of an organization's officers and agents will be visited upon the organization itself. The case also demonstrates that courts will not grant rescission as a mere formality, and that lack of bona fides combined with poor prospects of success will result in dismissal. Additionally, the judgment confirms that parties cannot amend pleadings by mere notice but must obtain a court order under Rule 132. The case provides guidance on the interpretation of the National Prosecuting Authority Act regarding transferred members, particularly in circumstances where an employee had been reinstated by the Labour Court prior to the transfer date.