Walter Njonjo t/a Mr Smart Furnishers v Direct Access Legal Aid Society

The respondent obtained a default judgment by consent against the applicant on 4 January 2018 following an out-of-court settlement. The applicant had signed a deed of settlement after being served with summons. The respondent subsequently issued a writ of execution against the applicant's property. The applicant instituted interpleader proceedings which failed, and then filed an application for rescission of the default judgment. The applicant claimed he only became aware of the judgment when the Sheriff visited his former residence on 4 March 2018. He alleged he never consented to the judgment and claimed fraud, alleging that his letterhead and signature were forged by one Menard Mutusva, whom he had previously reported for fraud involving US$2,800. The Deputy Sheriff's return of service indicated that summons was served at DST Complex, Gweru by affixing it to a glass coffee table after a person declined service on behalf of the defendant.

• Whether the applicant established good and sufficient cause for rescission of the default judgment under Order 9 Rule 63(1) of the High Court Civil Rules, 1971
• Whether the applicant provided a reasonable and acceptable explanation for his default
• Whether the applicant had a bona fide defence which prima facie carried some prospects of success
• Whether a consent order constitutes a default judgment and the grounds required to set it aside
• Whether the applicant came to court with clean hands

The application for rescission of judgment was dismissed with costs.

To obtain rescission of a default judgment under Order 9 Rule 63(1) of the High Court Civil Rules, 1971, an applicant must establish good and sufficient cause, which requires: (a) a reasonable and acceptable explanation for the default; and (b) a bona fide defence which prima facie carries some prospects of success. A consent order is not a default judgment but a final order by its nature, and to set aside such an order, fraud must ordinarily be proved. Litigants must come to court with clean hands and observe standards of truthfulness and honesty when seeking relief. Applications characterized by material non-disclosures, mala fides, or dishonesty will be dismissed, and courts may make adverse or punitive cost orders as a mark of disapproval of such conduct.

The court made general observations about the importance of maintaining the integrity of court processes, noting that courts risk compromising their integrity by assisting litigants with unclean hands. Makonese J expressed difficulty in understanding how a sophisticated businessman would hand over his letterheads to another person for the purpose of preparing a withdrawal affidavit, particularly when affidavits are not ordinarily prepared on letterheads. The court also referenced the need for courts to discourage urgent applications characterized by dishonesty or mala fides, suggesting that depending on circumstances, punitive orders may be appropriate as a seal of disapproval.

This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments and consent orders. It emphasizes the high standard required to establish good and sufficient cause for rescission, including the need for a reasonable explanation for default and a bona fide defence with prospects of success. The case also reaffirms the distinction between default judgments and consent orders, noting that consent orders are final orders requiring proof of fraud to be set aside. Importantly, the judgment underscores the principle that litigants must come to court with clean hands and that courts will discourage applications characterized by material non-disclosures, mala fides, or dishonesty. The case serves as a warning that vexatious denials and dishonest conduct will result in dismissal with costs.