Introduction
In litigation it is common for a party to the legal proceedings to be in default of those court proceedings. A party may fail to file its papers, especially opposing papers, within the time allowed by court rules or that party may fail to attend court on the day of a hearing. Court rules allow the party that is not in default, for example the applicant, to make an application to be granted a default judgment.
The same court rules provide for the application by the party against whom the default order was granted, to make an application to have the default judgment rescinded, cancelled or reversed. This at law is called an application for a rescission of a default judgment.
Court rules on rescission of default orders
Rule 27 of the High Court Rules, 2021, a party against whom judgment has been given in default, whether under these rules or under any law, may make a court application, not less than one month after he has had knowledge of the judgment for the judgment to be set aside. According to the same rules, if the court is satisfied that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute the action.
The Magistrate’s Court (Civil) Rules, 2018, have the same provisions in Order 30. Any party against who a default judgment is given may, not later than one month after he or she has knowledge thereof, apply to the court to rescind or vary such judgment. Any application shall be on affidavit stating:
- The reasons why the applicant did not appear or file his or her plea, and
- The grounds of defence to the action or proceedings in which the judgment was given or objection to the judgment.
In summary the above concerns good and sufficient cause for the rescission of the default judgment.
Factors considered in determining good and sufficient cause
It is established at law that the following factors are considered in establishing good and sufficient cause:
- The reasonableness of the applicant’s explanation for the default.
- The bona fides (genuineness) of the application to rescind the judgment, and
- The bona fides of the defence on the merits of the case which carries some prospect of success.
The above considerations were explained in the High Court case of Norman Sambaza versus Damascus Tazvitya Mabeka & Others of 2023.
Reasonableness of explanation for the default
This was articulated in the case of Dr Walter Mangezi v Dr Tonderai Irvine Kasu, case reference HCH 7978/24, judgment number HH 132-24 (“Mangezi v Kasu”). The key points being that:
- There should be no wilful default. Wilful default refers to a situation where a party, with full knowledge of the proceedings and the risks associated with not participating, deliberately chooses not to appear or take action.
- Applicant has to give a reasonable explanation for his default which resulted in the default judgment.
- The explanation has to be logical and justifiable to account for the default.
- It should align with common sense and rationality.
Bona fides of the application
According to the same Mangezi v Kasu case (supra or referred above) bona fides of the application to rescind judgment refers to the genuineness or good faith behind the request. It is a phrase that questions whether the application to rescind the judgment is made honestly and with valid reasons. Some litigants may apply for default judgment as a way of stalling or frustrating execution of the default judgment.
Bona fides of the defence on the merits of the main case which carries the default judgment
The applicant for rescission of judgment ought to prove to the court that he has prospects of success in the main case in which the default judgment was granted. In the same Mangezi v Kasu case the court stated this requirement by saying that this simply means that the applicant’s defence must have a reasonable chance of prevailing or achieving a favourable outcome. The defence should be valid and not futile or purely speculative. It should be sincere, substantive and have a reasonable chance of success.
Conclusion
Default judgments are common in legal proceedings. These may result from errors or they may be wilful where a party has a weak case. Equally true, applications for the rescission of default judgment are common. Such an application ought to be understood by a litigant.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He was recently appointed to sit on the Council of Estate Administrators in Zimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
