The respondent issued summons against the applicant on 15 November 2013 claiming damages for loss of business (case HC 9762/13). The summons were served on the applicant's accountant on 28 November 2013. The applicant failed to file an appearance to defend within 10 days. In December 2013, the applicant's legal practitioner contacted the respondent's attorney seeking consent to uplift the bar, but consent was declined. The respondent advised that they had filed an application for default judgment and suggested the applicant apply for rescission after judgment was granted. Default judgment was granted on 2 April 2014. The applicant filed an application for rescission on 12 September 2014, claiming it only became aware of the judgment on 14 August 2014 through a telephone call with the respondent's attorney.
The application for rescission of default judgment was dismissed with costs.
1. Under Rule 63(3) of the High Court Rules, a party is presumed to have knowledge of a default judgment within two days of its issuance, and the burden is on the party to adduce positive evidence to rebut this presumption. A letter confirming telephone discussions months after judgment, without evidence of diligent follow-up with the court registry, is insufficient to rebut the presumption. 2. Where an applicant fails to rebut the Rule 63(3) presumption and files a rescission application outside the 30-day period stipulated in Rule 63(1), the applicant must first seek condonation for late filing. An application filed without such condonation is improperly before the court. 3. Rule 63(1) requires that an application for rescission be filed within 30 days of knowledge of the judgment, not that it be set down and heard within that period. Delays in set down beyond the applicant's control should not result in penalty. 4. A party cannot escape the consequences of its legal practitioner's lack of diligence in pursuing court matters.
The court observed that legal practitioners should be aware that the motion roll is intended to give expeditious relief and that the Registrar of the High Court is the custodian of all court process. It was noted that conflicting instructions between opposing legal practitioners require each to act diligently in their client's interest. The court commented that the telephone call and letter of 18 August 2014 "appeared to be intended solely to circumvent the presumption in r 63(3)." The court also noted that without the bar issue, the application would have been properly before the court, but did not comment on the merits of the underlying defense. The judgment expressed approval for the "appealing and impressive argument" regarding the impracticality of requiring both filing and set down within 30 days given the procedural requirements of Order 32, though this was ultimately a matter resolved by Supreme Court precedent rather than the court's independent reasoning.
This case clarifies the interpretation of Rule 63 of the High Court Rules regarding rescission of default judgments in Zimbabwean law. It confirms the Supreme Court's departure from Sibanda v Ntini, establishing that Rule 63(1) requires filing within 30 days of knowledge, not set down and hearing within that period (delays beyond an applicant's control should not be penalized). The judgment also emphasizes the high standard required to rebut the Rule 63(3) presumption of knowledge within two days, and reinforces that legal practitioners must act diligently - parties cannot escape their legal practitioner's lack of diligence. The case demonstrates the courts' strict approach to procedural compliance and the importance of timely action when seeking condonation.