Wickbury Investments Workers Committee v Wickbury Investments (Pvt) Limited and Sheriff of the High Court of Zimbabwe

The applicant's members were employees of the first respondent. On 5 February 2014, the employees were awarded $59,246.85 by an Arbitrator. The award was registered by the High Court on 24 September 2015 under HC5433/15. The second respondent (Sheriff) executed the order but could not collect the full amount, leaving a balance of $8,302.72 outstanding. When the applicant reinstructed the Deputy Sheriff for a second execution, the first respondent filed an urgent chamber application for an interdict on 4 August 2017 (HC 7246/17), which was removed from the roll for lack of urgency on 9 August 2017. The first respondent simultaneously filed an application for rescission of the registration of the arbitral award (HC 7245/16). On 17 August 2017, the first respondent filed another urgent chamber application identical to the 4 August 2017 one under HC 7591/17. The applicant opposed this application but erroneously cited the wrong case number (HC 7246/17 instead of HC 7591/17) on its opposing papers filed on 28 August 2017 and served on 29 August 2017. Due to this wrong case number, the application was heard unopposed on 4 October 2017 and judgment was granted in favor of the first respondent. The applicant filed the present application for rescission of judgment on 17 October 2017 after being informed of the order on 10 October 2017.

• Whether the applicant has locus standi to bring the application (point in limine raised by first respondent)
• Whether the applicant was in wilful default when the default judgment was granted on 4 October 2017
• Whether the applicant provided a reasonable explanation for the default
• Whether the application for rescission was made bona fide
• Whether the applicant has a bona fide defence on the merits
• Whether the applicant has reasonable prospects of success in defending the underlying application
• Whether costs on a punitive scale are justified

The court ordered: (a) The default judgment granted in matter number HC 7591/17 in favour of the first respondent on 4 October 2017 is set aside; (b) Applicant is ordered to file its opposing papers within 10 days from the date of this order; (c) First respondent to pay costs of this application on an attorney-client scale.

Where a party files opposing papers in response to an application but erroneously cites the wrong case number due to a typographical error, this does not constitute wilful default justifying a default judgment, particularly where the opposing party's legal practitioners were served with the papers and failed to bring the error to the attention of either the applicant or the court. The requirements for rescission of a default judgment under Rule 63 are satisfied where: (1) the applicant provides a reasonable explanation for the default (in this case, a typographical error in the case number); (2) the application is made bona fide; (3) there is a bona fide defence on the merits; and (4) there are reasonable prospects of success. Legal practitioners who are aware of an opponent's typographical error but exploit it to obtain a default judgment rather than bringing it to the attention of the court or the opponent engage in conduct that warrants punitive costs.

The court made observations regarding the point in limine raised about the applicant's locus standi as a workers' committee rather than individual employees. The court noted that this point should have been properly dealt with by the Arbitrator and that if the rescission was granted, parties would be free to argue this issue again and an appropriate order would be given. The court also observed that it does not concern itself with the merits of Labour Court awards but rather with the registration of awards for enforcement purposes. The court commented that the first respondent's conduct in exploiting the typographical error and persisting in opposing the rescission application "must be discouraged at all costs," signaling judicial disapproval of such opportunistic litigation tactics.

This case reinforces the principles governing rescission of default judgments in Zimbabwean civil procedure, particularly emphasizing that a simple typographical error in citing a case number does not constitute wilful default where the party clearly intended to oppose the application and filed opposing papers. The case is significant for establishing that legal practitioners have a professional duty to bring obvious errors to the attention of both the opposing party and the court, rather than exploiting such errors to obtain default judgments. The court's willingness to grant punitive costs demonstrates its commitment to discouraging opportunistic litigation tactics that undermine the administration of justice. The case also confirms that courts will apply Rule 63 liberally where there is clear evidence that a party was not in wilful default and has a defence to argue.