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 a deed of settlement signed by the applicant after he approached the respondent with a proposal for an out of court settlement. A writ of execution was subsequently issued against the applicant's property. The applicant instituted interpleader proceedings which failed. The applicant then filed an application for rescission of the consent judgment, claiming he only became aware of the judgment when the Sheriff visited his former residence on 4 March 2018. The applicant alleged that: (1) he was not properly served with the summons and declaration; (2) the judgment was fraudulently obtained; (3) he never consented to the judgment; and (4) his letterhead and signature on the deed of settlement were forged by one Menard Mutusva, to whom he had allegedly left his letterhead in order to prepare a withdrawal affidavit for a fraud report. The applicant's wife was served in person with the warrant of execution in March 2018.

• Whether the applicant established good and sufficient cause for rescission of 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 demonstrated a bona fide defence with prima facie prospects of success
• Whether a consent order can be rescinded as a default judgment or requires proof of fraud
• Whether the applicant approached the court with clean hands

The application for rescission of judgment was dismissed with costs.

For rescission of judgment under Order 9 Rule 63(1) of the High Court Civil Rules, 1971, an applicant must establish good and sufficient cause by providing: (a) a reasonable and acceptable explanation for default; and (b) a bona fide defence which prima facie carries some prospects of success. A consent order is not a default judgment and is a final order that normally requires proof of fraud to be set aside. Litigants must approach the court with clean hands and the court will not grant relief to those guilty of lack of probity or honesty. Dishonest conduct, material non-disclosures, and vexatious denials will result in dismissal of rescission applications.

Makonese J observed that courts should discourage urgent applications characterized by material non-disclosures, mala fides or dishonesty, and may make adverse or punitive orders as a seal of disapproval of such conduct. The court noted the fundamental principle that standards of truthfulness and honesty must be observed by parties who seek relief from the court, and remarked on the impossibility of believing that a sophisticated businessman would handle his letterheads in the manner alleged by the applicant. The court expressed concern that allowing litigants with unclean hands to seek court assistance risks compromising the court's integrity and making it a party to underhand transactions.

This case reinforces the strict standards required for rescission of consent judgments in Zimbabwean law and emphasizes the distinction between default judgments and consent orders. It underscores the importance of the clean hands doctrine and the court's intolerance for dishonest conduct and material non-disclosures in rescission applications. The judgment serves as a warning that parties cannot avoid consent orders by later alleging fraud without credible evidence, and that vexatious denials of signatures and fabricated explanations will be rejected. The case also illustrates the courts' approach to discouraging applications characterized by mala fides or dishonesty, particularly in the context of attempting to set aside orders that were voluntarily agreed to by parties.