V Daya and Company and Mr Daya v Savanna Tobacco (Private) Limited

The respondent instituted proceedings in case HC 1901/11 against the applicants for payment of US$17,735.00 being the balance of the purchase price for goods sold and delivered. Summons was served on 9 March 2011. Instead of entering appearance to defend, the applicants signed an "Agreement of Debt and Form" on 22 March 2011, acknowledging the full debt and undertaking to pay US$2,500.00 per month. The respondent obtained default judgment on 10 May 2011 for the amount claimed plus interest and costs. The applicants only paid US$400.00 after signing the acknowledgment of debt (total payments of US$4,700.00, mostly before the agreement). The applicants filed for rescission of judgment on 2 August 2011, claiming they believed the matter was settled by the debt acknowledgment and were not in wilful default.

• Whether the applicants showed good and sufficient cause for rescission of the default judgment under Rule 63
• Whether the applicants provided a reasonable explanation for their default in entering appearance to defend
• Whether the applicants disclosed a bona fide defence on the merits
• Whether the application for rescission was brought bona fide

The application for rescission of judgment was dismissed with costs on the legal practitioner and client scale.

For an application for rescission of default judgment to succeed under Rule 63(2), the applicant must establish good and sufficient cause by showing: (1) a reasonable explanation for the default; (2) bona fides of the application for rescission; and (3) a bona fide defence on the merits. An admission of the debt claimed, coupled with a mere request to pay in instalments, does not constitute a defence on the merits. Signing an acknowledgment of debt after receiving summons, while failing to enter appearance to defend, does not provide a reasonable explanation for default. Where an applicant admits liability in the exact sum claimed in the judgment sought to be rescinded, no bona fide defence exists.

Mathonsi J made strong obiter observations about what he termed the "new way of business" where debtors adopt the attitude: "I know I owe you money but I do not want to pay you; or I will pay you at my own time and in my own way." The judge commented that this kind of litigation must be discouraged at all costs and that legal practitioners who indulge in such egregious departures from acceptable behaviour risk costs de bonis propriis being awarded against them. He noted that legal practitioners owe a duty to the court to protect it from unwarranted litigation which wastes the court's time and frustrates just claims. The judge observed that the applicants' legal practitioner was fortunate that the respondent's counsel did not seek a costs order de bonis propriis, which the court would not have hesitated to grant.

This case is significant in Zimbabwean civil procedure (and relevant to South African jurisprudence given similar procedural rules) as it demonstrates the strict application of the requirements for rescission of default judgment under Rule 63. It reinforces that: (1) applicants must show good and sufficient cause including a reasonable explanation for default, bona fide application, and bona fide defence on the merits; (2) admission of liability with a request to pay in instalments does not constitute a defence; (3) courts will not tolerate spurious applications designed to delay legitimate creditor claims; (4) legal practitioners have a duty to protect the court from unwarranted litigation and may face costs de bonis propriis for pursuing meritless applications. The judgment serves as a strong warning against abuse of rescission procedures to frustrate debt collection.