Trastar (Pvt) Ltd t/a Takataka Plant Hire v Golden Ribbon Plant Hire (Pvt) Ltd

The respondent obtained a default judgment against the applicant on 18 June 2015 in the sum of $87,288.52. The applicant first sought rescission of this judgment in terms of rule 63 in HC 2696/15, which was dismissed by Bere J on 7 June 2016. Thereafter, the applicant's director Mahachi filed a claim to property attached in execution, which was also dismissed on 26 July 2017 by Makonese J. Mahachi then made a payment plan which the applicant failed to honour. When execution was pursued again, the applicant filed this second rescission application, now under rule 449, alleging the judgment was erroneously sought and granted because: (1) the sheriff's return of service indicated only the summons was served, not the declaration; (2) the notice to plead and intention to bar were therefore incompetent and premature; and (3) the certificate of service of the notice of intention to bar was defective. The applicant did not disclose its prior unsuccessful rescission application or the other failed legal challenges in its founding affidavit. Additionally, Takuva J had already dismissed the same arguments in HB355/17 delivered on 9 November 2017, which the applicant and counsel also failed to disclose.

• Whether it is competent for a party to bring successive rescission applications under different rules (rule 63 then rule 449) after the first application has been dismissed
• Whether the matter is res judicata and the court functus officio
• Whether the default judgment was erroneously sought and erroneously granted due to alleged defects in service
• Whether successive rescission applications constitute an abuse of the court process
• Whether the principles of res judicata and functus officio apply to rescission of default judgment applications

The application was dismissed with costs on a legal practitioner and client scale (punitive costs).

A party seeking rescission of a default judgment must base its application on either rule 63 or rule 449 depending on the grounds, or plead them in the alternative in one application. A party cannot bring a rescission application under rule 63, and when that fails, return to court seeking rescission of the same judgment under rule 449. While the technical requirements of res judicata may not be fully satisfied where different causes of action are relied upon, public policy considerations demand finality in litigation and prohibit successive rescission applications as an abuse of the court process. Rules of court are not designed to be abused by allowing parties to spend years skipping from one rule to another attempting to have the same judgment rescinded, as such a construction does not accord with justice and undermines confidence in the legal system.

The court observed approvingly the principle from Ndebele v Ncube 1992 (1) ZLR 288 (S) that "the law will help the vigilant but not the sluggard" and noted that applications for rescission, condonation, and leave to appeal out of time "have rocketed in numbers" with litigants bombarding courts with excuses for failure to act, turning incompetence into "a growth industry." The court also commented on conventional sheriff's practices regarding completion of return of service forms, noting it is not unusual for the registrar to stamp only the summons and for sheriffs to mark only "summons" on the return of service form even when serving both summons and declaration. The court remarked that the applicant's assertion that it would only pay what it admitted owing after being paid by a third party "cannot be a serious argument" and has "all the hallmarks of a litigant who will do anything and say anything including the absurd only to avoid paying what is owed."

This case is significant in Zimbabwean civil procedure law for establishing that: (1) a party cannot make successive rescission applications under different rules after an initial application has failed - this would undermine finality in litigation; (2) while res judicata may not technically apply where different causes of action are relied upon, public policy considerations prevent abuse of the rescission process; (3) courts will penalize with punitive costs applications that constitute palpable abuse of process, particularly where material facts are not disclosed; (4) the principle stated in Ndebele v Ncube that "the law will help the vigilant but not the sluggard" will be enforced to prevent incompetence from becoming a "growth industry." The case reinforces judicial intolerance for serial litigation tactics designed to delay enforcement of legitimate judgments.