Magodyo and Others v Masomera (In his capacity as the appointed executor dative of the Estate Late Agnes Sakala DR 3480/23) and Others (444 of 2025) [2025] ZWHHC 444 (28 July 2025)

4 HH 444 - 25 HCH 5396/24 HEATHER MAGODYO and PROSPER SAKALA and HENRY SAKALA versus OLIVER MASOMERA (In his capacity as the appointed executor dative of the Estate Late Agnes Sakala DR 3480/23) and NABOTH GAZA and THE MASTER OF THE HIGH COURT and CHIRONDE ASSOCIATES (PVT) LTD and FREDDY CHIMBARI N.O (In his capacity as the Executor of Estate Late Aaron Sakala DR 1036/13) and HAZEL SAKALA HIGH COURT OF ZIMBABWE MAMBARA J HARARE 16 and 28 July 2025 Opposed Application S. Mbauya, for the applicants R. Mabwe, for the 1st respondent MAMBARA J: This is a judgment in an application for rescission of a default judgment brought under Rule 27(1) of the High Court Rules, 2021. The three applicants – Ms. Heather Magodyo, Mr. Prosper Sakala, and Mr. Henry Sakala – seek to have a default judgment entered against them on 21 October 2024 set aside. The default judgment was granted in favour of the first respondent after the applicants failed to attend or be represented when the matter was called. The applicants contend that they have met the requirements for rescission by showing “good and sufficient cause” for the judgment to be rescinded, as required by Rule 27(2) of the 2021 Rules. The first and second respondents oppose the application, arguing that the applicants were in wilful default and that their application lacks merit and bona fides. Factual Background The relevant facts, largely common cause or drawn from the affidavits and oral evidence, are summarised as follows. The underlying dispute between the parties arises from a family financial transaction. The late Agnes Sakala (the first respondent) came into a significant sum of money after winning a lottery in 2019. She shared a portion of her winnings with members of her family, including the late, Mr. Aaron Sakala and his family who are the applicants herein, by way of gifts of money, houses, and motor vehicles. In particular, the first applicant states that the money given to her family was not a loan but an outright gift, and thus no repayment was ever expected. Sometime later, a dispute arose when the first respondent claimed entitlement to repayment or to certain property, treating what was given as a loan or advance rather than a gift. This led the first respondent to issue summons against the applicants. The applicants duly entered appearance to defend the action, as they maintain that the first respondent’s claim is without merit. The matter did not proceed to trial promptly. According to the first applicant, the case lay dormant for an extended period after pleadings. Crucially, the legal practitioner who had been handling the matter for the first applicant left the law firm which was handling this matter during this lull and failed to transfer or properly hand over the case file to any other practitioner in the firm. Meanwhile, the second and third applicants (Prosper and Henry Sakala) were being represented by a different law firm. At the time the action was commenced, the second and third applicants were minors, and they had little to no direct contact with their lawyer. They allege they were never informed of any hearing date by that lawyer. In October 2024, the first respondent set the matter down for a default judgment hearing on the unopposed roll. Notice of set down was served, but due to the above circumstances, none of the applicants nor their legal representatives became aware of the hearing. The first applicant’s former lawyer was no longer at his firm, and no one there was actively handling the file. The other applicants’ lawyer, on the other hand, had not kept them informed and did not attend. As a result, when the case was called on 21 October 2024, the applicants were in default of appearance. The High Court (sitting in default) granted judgment in favour of the first respondent, thereby giving him the relief, he sought in the action. The applicants state that they only learned of the default judgment weeks later, when a relative privy to the court outcome informed them. They moved with haste to engage new legal counsel and prepared this rescission application, which was filed in November 2024. The application was thus made within one month of the applicants gaining knowledge of the default judgment, satisfying the temporal requirement of Rule 27(1). The applicants also obtained a provisional stay of execution pending determination of this rescission application, given that the default judgment involved transfer of substantial assets. The respondents, in their opposing papers, dispute the applicants’ explanation for the default. They aver that the applicants were clearly in wilful default, or at least grossly negligent, for failing to follow up on their case. The respondents emphasize that the Notice of Set Down was properly served on the applicants’ legal practitioners of record, and argue that any mishandling or omission by those lawyers should be imputed to the applicants. Notably, the respondents point out that the applicants did not file an affidavit from the first applicant’s former lawyer who is blamed for failing to attend to the case. Relying on the authority of RioZim Ltd v Nigel Dixon-Warren N.O. SC 21/23, the respondents contend that an explanation which pins the default on a lawyer’s negligence is inadequate in the absence of a supporting affidavit from that lawyer. They submit that the principle of party representation in our law does not permit an applicant to simply exonerate themselves by foisting blame on their legal practitioner without evidence – “the sins of the legal practitioner” cannot be avoided without confirmation from that practitioner. Against this factual backdrop, the Court must determine whether the applicants have shown “good and sufficient cause” to rescind the default judgment. In Zimbabwean law, this entails an examination of three well-established elements: whether the applicants have given a reasonable explanation for their default;whether the application for rescission has been made bona fide (in good faith); and whether the applicants have a bona fide defence on the merits of the case with some prospects of success I proceed to outline the governing legal principles before applying them to the facts at hand. Legal Framework Rule 27(2) of the High Court Rules, 2021 provides that on an application for rescission of a default judgment, “the court may set aside the judgment given in default” if the applicant establishes good and sufficient cause for such rescission. The Rules deliberately leave the term “good and sufficient cause” flexible. It confers a broad discretion on the court, one that cannot be encapsulated in a hard-and-fast definition. However, decades of case law have distilled the general guidelines for what constitutes good and sufficient cause in this context. In the leading case of Stockil v Griffiths 1992 (1) ZLR 172 (SC), Gubbay CJ set out the three fundamental requirements that an applicant for rescission must satisfy to discharge the onus of proving good and sufficient cause. These are: A reasonable explanation for the default: The applicant must explain why the default occurred (e.g. failure to file a plea or to appear at the hearing) and this explanation must be reasonable and credible in the eyes of the court. An explanation that reveals wilful default or gross negligence would generally not qualify as “reasonable”.Bona fides of the application: The application to rescind must be made in good faith. The applicant should demonstrate that they genuinely seek to correct an injustice (the default judgment) in order to defend the case on the merits, rather than using the application as a tactic to delay or harass. Good faith is evidenced by the promptness of the application, the absence of intention to deliberately stall proceedings, and consistency in the applicant’s conduct and explanations.Bona fide defence on the merits: The applicant must put forward a defence to the original claim which is bona fide and carries at least some prospect of success if the matter goes to trial. This does not mean the defence must be proved on the affidavits, but the averments should disclose a prima facie defence that is not frivolous. In other words, there must be a triable issue. Courts are naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard, when he protests that he has a valid defence. If a valid or arguable defence is shown, the court tends to favour granting rescission so that the matter can be decided on the merits after a hearing. These factors were reaffirmed in many decisions, such as Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) and Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp. Ltd 1988 (1) ZLR 368 (SC). They continue to govern rescission applications under the current rules which are substantively similar on this point to the former Order 63 of 1971. Indeed, in Deweras Farm, the Supreme Court emphasized that the High Court Rules only require “good and sufficient cause” for rescission, which is a deliberately broad concept. The court has a wide discretion, and even a case of wilful default by a defendant does not automatically preclude rescission. There “may still sometimes be good and sufficient cause for granting rescission” in exceptional circumstances. The motive behind the default or other mitigating factors might provide such cause. Each case turns on its own facts and the overall equities. That said, if an applicant’s default is found to be wilful (deliberate) or a result of gross indifference, the court will generally not indulge them with rescission. Wilful default has been judicially defined as occurring “when a party, with full knowledge of the service or set-down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing”. This definition, stated in Hutchison & Anor v Logan 2001 (2) ZLR 1 (H) and Zimbabwe Banking Corp. Ltd v Masendeke 1995 (2) ZLR 400 (S), underscores that a conscious, deliberate decision not to attend to a case despite knowledge of it amounts to wilful default. It is rarely a clear-cut concept, because there is almost always an element of negligence involved. The question is whether the negligence was so gross as to be tantamount to wilfulness. Even in extreme cases of apparent wilful default, if an applicant can furnish a satisfactory explanation for his inaction, one that shows his default should be excused in the interests of justice, and if other circumstances including a strong defence on the merits justify it, then “good and sufficient cause may be established” despite the initial wilfulness. The court’s discretion remains paramount and is exercised in light of all the circumstances. Importantly, our courts have warned against treating any one of the three requirements in isolation. The factors are interrelated and must be considered in conjunction with one another and with the application as a whole. A strong showing on one factor may offset a weaker showing on another. For instance, “an unsatisfactory explanation for default may be strengthened by a very strong defence on the merits, and a completely satisfactory explanation may cause the court not to scrutinise too closely the defence on the merits.” Conversely, a flimsy defence may require a particularly compelling explanation for default to justify rescission, and a lack of bona fides can fatally undermine even a plausible defence. This holistic approach was articulated in Trustees of Tongogara Community Share Ownership Trust v Matrix Realty (Pvt) Ltd HH 247-18, which echoed the sentiment from an older case (Du Preez v Hughes No 1957 R&N 706) that undue emphasis should not be placed on one factor. All relevant factors must be weighed together. Finally, the court is mindful of the competing policy considerations at play. As McNally JA famously noted in Ndebele v Ncube 1992 (1) ZLR 288 (S), “It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants.” The interests of finality must be balanced against the fundamental principle that, where possible, disputes should be resolved on their merits after both sides have had an opportunity to be heard. The rescission mechanism exists to prevent irreparable injustice in appropriate cases, but it should not be abused to prolong litigation endlessly. With these principles in mind, I turn to assess the present application against the three requirements. Explanation for the Default The first enquiry is whether the applicants have given a reasonable and acceptable explanation for their default. In their founding papers, the applicants explained in detail how it came to pass that none of them nor their lawyers were present when the matter was heard. In brief summary, the first applicant’s attorney of record at the relevant time had departed the law firm without ensuring that the file was reassigned or that the clients were informed of developments. The case, which had been dormant for many months, did not receive attention from any other lawyer at that firm once the responsible attorney left. Thus, when the Notice of Set Down for the default judgment hearing was served on that firm’s address, it apparently went unnoticed or unacted upon. The applicants assert that they were genuinely unaware of the court date and did not deliberately abscond or ignore their case. On the surface, this explanation reveals a troubling lack of diligence by the applicants’ former legal practitioners. The respondents have argued that such an explanation is inadequate, especially without corroboration from the lawyer who supposedly left the first applicant in the lurch. They cite the RioZim Limited v Dixon-Warren N.O. SC 21/23 judgment and similar authorities for the proposition that an applicant cannot simply shift blame to a legal practitioner in order to avoid the consequences of default. Generally, if a litigant’s excuse for default is that their lawyer was negligent or failed to act, the courts require evidence of that failure often in the form of an affidavit from the lawyer acknowledging his or her fault. In the present case, no such affidavit from the first applicant’s previous counsel has been furnished. This omission is indeed concerning, and the Court accepts the respondents’ submission that ideally the lawyer responsible for the file ought to have given a supporting explanation. The lack of direct confirmation from that practitioner means the applicants carry a heavier burden to persuade the Court that their story is truthful and that the default was not wilful. Having said that, the Court must consider the explanation in its totality and context, not mechanistically box-tick requirements. It is undisputed that the case had long been idle and that the first applicant’s lawyer of record changed during this period. Correspondence annexed to the founding affidavit supports the fact that he left the firm around 2015, well before the October 2024 set down. There is also no evidence that the applicants themselves had any knowledge of the pending default hearing. On the contrary, the sequence of events – the filing of a defence, the dormancy of the matter, and then the applicants’ prompt action as soon as they discovered the judgment – tends to negate any suggestion that the applicants consciously ignored the case. As was observed in Mdokwani v Shoniwa 1992 (1) ZLR 269 (S), the court should be cautious before imputing wilfulness to a litigant when the surrounding circumstances point to inadvertence or misunderstanding rather than a deliberate intent to abandon the case. Here, the first applicant was let down by her legal representative’s lapse, and the other two applicants, being very junior and previously uninvolved, were essentially oblivious to the process. There is nothing in the applicants’ conduct to suggest that they "freely took the decision to refrain from appearing" with full knowledge of the risks of default. To the contrary, once aware of the judgment, they moved quickly to challenge it. It is true that negligence played a roll. Someone in the employ of the first applicant’s attorneys should have monitored the case or at least updated the clients. The second and third applicants’ guardian or lawyer similarly ought to have been proactive. The explanation is not a model of diligence. It reveals an unfortunate combination of oversight and miscommunication. However, the question is whether this amounts to wilful default or a flagrant breach of the rules such that rescission should be denied. In my view, it does not. The applicants’ default was not a product of a deliberate decision to ignore the court proceedings. It was a result of disorganization and an attorney’s failure – a failure which the applicants themselves were in no position to detect at the time. Our courts have often excused defaults caused by reasonable mistakes or administrative errors, especially where the litigant moved swiftly to rectify them once discovered. For example, in Ndebele v Ncube, the Supreme Court acknowledged that while finality is important, a litigant should not lightly be denied a hearing if his default was not wilful and can be excused without injustice. The respondents’ reliance on RioZim v Dixon-Warren (and the Diocese of Harare v CPCA precedent cited therein) is noted. Indeed, a court cannot simply ignore a litigant’s non-compliance because “the lawyer was at fault.” Each case turns on whether the explanation is acceptable. In RioZim, the Supreme Court refused to accept an explanation for delay in noting an appeal because the applicant blamed his lawyers but provided no supporting affidavit. Thus, the explanation was deemed unsubstantiated and unacceptable. In the present matter, we are dealing with rescission of a default judgment (not an appeal), and the explanation, though lacking an affidavit from the departed lawyer, is bolstered by other evidence and the inherent probabilities. Moreover, the applicants here are not simply seeking indulgence after a long delay. They acted within the prescribed time, indicating they did not acquiesce in the judgment. On the specific facts, the Court is inclined to accept that the applicants have given a reasonable explanation for their default. It was a reasonable (if not impeccable) explanation in the sense that it accounts for the default in a way that does not betray a deliberate disregard of the court process. There was confusion and inadvertence, not a conscious decision to abandon the defence. Additionally, I take into account that even if one were to find the explanation somewhat wanting, due to the missing affidavit or the degree of negligence involved, this is only one part of the triad of factors. As will be seen, the applicants present a substantially convincing case on the other two requirements (good faith and merits of the defence), which can compensate for imperfections in the explanation. In the final analysis, I am satisfied that the applicants’ default, while negligent, was not wilful. The explanation they have offered is adequate to clear the threshold of reasonableness when all circumstances are weighed. Bona Fides of the Application The second requirement examines whether the applicants are proceeding in good faith in seeking rescission. This involves an inquiry into the motive and manner in which the application was made. A bona fide application is one that is genuinely intended to have the case heard on the merits, as opposed to being an opportunistic stratagem to buy time or vexate the other side. In assessing bona fides, the court considers factors such as the promptness of the application, the consistency and honesty of the applicant’s conduct, and the overall plausibility of their stance. In this case, the applicants’ conduct indicates genuine intent. They acted with commendable promptitude by filing this application within a couple of weeks of discovering the default judgment, well within the one-month limit of the rules. Such prompt action is usually a strong sign of good faith. It shows the applicants did not sit on their rights or accept the judgment lying down. Furthermore, the applicants have been frank and detailed in explaining the circumstances of their default. In their founding affidavit and supporting statements, they laid out the events including admitting the oversight by their own lawyer in a manner that appears transparent and contrite. There is no hint that they deliberately engineered the default or that they are using this application as a delay tactic. On the contrary, they assert that they have always intended to defend the claim and were taken by surprise when the judgment was entered. The fact that they had filed a plea (and in the first applicant’s case, engaged lawyers from the start) is consistent with an intention to resolve the dispute on the merits. The respondents did not point to any specific conduct by the applicants that would indicate a lack of bona fides, aside from the default itself. They argued that the application is without merit and should be dismissed, but that goes to the merits and explanation rather than to bad faith per se. It is noteworthy that there is no history of dilatory tactics by the applicants. For instance, this is not a case where the applicants previously conceded liability or let judgment go by consent and then changed their mind. This rescission bid is their first and only attempt to set aside the judgment, made promptly and in accordance with the rules. As highlighted in Dr Mangezi v Dr Kasu HH 132/24 (a recent judgment of this Court), demonstrating bona fides entails showing consistency and genuineness throughout the process. The applicants must take the Court into their confidence about what led to the default, and their intention moving forward must be to genuinely contest the matter on valid grounds, not simply to delay the inevitable. In casu, the applicants have given a full account of the mishap that led to the default and have backed up their claims with supportive detail. This is not behaviour one associates with mala fide litigation. I am satisfied that the application is made in good faith. The applicants seek an opportunity to defend what they believe is a just cause, and there is no indication of an ulterior motive. They have not, for example, abused the process by repeatedly failing to comply with rules or by filing this application out of time. All procedural indications are that this is a genuine effort to correct an unfortunate default so that the real dispute can be determined. I therefore find that the requirement of bona fides has been met. Bona Fide Defence on the Merits The third and perhaps most crucial element is whether the applicants have a bona fide defence to the first respondent’s claim, which carries some prospect of success. It is well established that at this rescission stage the applicant need not prove their defence on a balance of probabilities. They must allege facts which, if proved at trial, would constitute a valid defence. In other words, the defence should not be a sham or a frivolous dilatory answer. It should be prima facie plausible and not obviously hopeless. In their founding papers and draft plea, the applicants outline a clear and substantive defence. They maintain that the first respondent’s claim for payment of money and certain assets is baseless because the underlying transactions were gifts, not loans or debts. According to the first applicant, after her lottery windfall the first respondent voluntarily distributed money and property to various family members out of generosity. She asserts that the fifth respondent was one such beneficiary, receiving a significant sum of money from the first respondent as a gift, with no strings attached. She produces copies of letters and contemporaneous messages in which the fifth respondent acknowledged the “gift” and expressed gratitude – documentation which, if authenticated, would strongly support her version that no repayment obligation was contemplated. The applicants therefore aver that the first respondent has no cause of action. One cannot sue to recover a gift that was freely given. This contention, if proven, would indeed defeat the claim in its entirety. The first respondent’s contrary position as gleaned from the summons and opposing affidavit is that the money in question was not a gift but something given in expectation of reimbursement, essentially a loan or conditional transfer. This presents a classic dispute of fact: was the sum a loan or a gift? Such a dispute can only be resolved by examining the evidence, including the parties’ intentions and any corroborative documents or testimony, at a trial. On the face of it, the applicants’ defence is far from frivolous. It goes to the very heart of the plaintiff’s claim. If the applicants’ version is true, then the first respondent’s claim would fail. There is at least a “triable issue” here, meaning an issue that a court ought to hear and adjudicate on the merits. Moreover, the defence advanced is inherently plausible. It is not a technical or fanciful defence concocted after the fact. It aligns with the narrative of familial sharing of lottery proceeds. It is common cause that the first applicant came into a large sum of money and disbursed part of it to relatives. The crux is whether those disbursements were gifts or loans. Both scenarios are believable in a family context, but the point is that the applicants have a potentially valid defence that should be heard. Our law abhors the notion of shutting the door on a litigant who claims to have a legitimate defence, without testing that claim. As referenced earlier, McNally JA’s remark in Songore v Olivine Industries resonates here. A court is naturally reluctant to let a judgment stand against someone who insists they have a valid defence and who was not heard due to a mishap. Justice is best served by allowing the matter to proceed to trial so the truth of the matter can be determined. The respondents in opposition did not seriously contend that the applicants lack any defence. Their focus was more on procedural default and the alleged inadequacy of the explanation. While they might believe the applicants’ defence will ultimately not succeed, that is not the test at this stage. They have not shown the defence to be bogus on its face. In fact, by strenuously resisting rescission, the respondents implicitly signal that the defence could give them trouble, otherwise they would have little to fear from it being ventilated. In sum, the applicants have demonstrated a bona fide defence with real prospects of success. The dispute over the nature of the transaction (gift vs loan) is a substantive one that merits a hearing. There are factual conflicts that only a proper trial can resolve. This factor weighs heavily in favour of granting rescission, because our courts lean towards allowing matters to be resolved on the merits when a non-trivial defence exists. Weighing the Factors Cumulatively Having considered each of the three requirements individually, the Court must take a step back and view them together, in light of the totality of circumstances. This cumulative assessment is crucial because, as noted, a weakness in one area may be cured by strength in another. In the present case, the strongest factors in the applicants’ favour are the bona fide defence they have disclosed and the good faith with which they have approached the Court. The explanation for default, while not exemplary, is adequate and not indicative of wilful flouting of the rules. When these factors are combined, I am persuaded that “good and sufficient cause” has been shown for rescission. The slight misgivings about the completeness of the explanation (such as the missing lawyer’s affidavit) are overcome by the compelling interest of allowing a potentially meritorious defence to be heard. As the Court observed in the Tongogara CSOT v Matrix Realty case, “too much emphasis must not be placed on one factor.” All factors must be weighed in conjunction. In this case, even if one were to view the explanation for default as somewhat unsatisfactory, it is strengthened by a very strong defence on the merits, to borrow the words of the court in Tongogara. Likewise, the applicants’ evidently sincere desire to have their day in court causes me to not scrutinise too exactingly the flaws in their explanation. On balance, refusing rescission in this matter would occasion a greater injustice than granting it. The policy of finality in judgments, while important, must yield to the need to do justice in the particular case. Here, finality was achieved by default, essentially on a technicality and miscommunication. The substantive merits have never been examined. Denying the applicants the opportunity to be heard could result in an injustice. For instance, it would compel them to pay a substantial sum or surrender property which they might not owe at all if their version is true. Conversely, granting rescission merely restores both parties to an even footing. The first respondent will not be unduly prejudiced, except by the loss of an unopposed victory. He will have the chance to prove his claim in a full trial. Any prejudice in terms of delay or costs can be tempered by an appropriate costs order, but fundamentally, both sides will have the dispute decided on its merits, which is the cornerstone of our civil justice system. I am also mindful that the first respondent’s conduct is not beyond reproach. While not heavily canvassed in arguments, there is an undertone that the first respondent might have taken advantage of the applicants’ lapse to “snatch a judgment” in their absence. The chronology shows he proceeded to set the matter on the unopposed roll despite knowing that at least some defence had been filed earlier and that the applicants were initially defending the suit. If he was aware (as often happens in family disputes) that the applicants might not have received notice, then a degree of opportunism might have been at play. Our courts have cautioned against snatching at judgments and emphasized that legal practitioners should always act to ensure real disputes are justly resolved, rather than merely capitalizing on a momentary default. I am mindful of the submission by Ms Mabwe, counsel for the 1st respondent, that at her request, the matter was postponed to allow physical service of the notice of set down on the 1st applicant’s legal practitioners and that indeed service was so effected. I do not make a specific finding of mala fides on the first respondent’s part, but I note that he will not suffer any legitimate injustice if the matter is reopened. He will simply be put to the proof of his claim, which is what should occur if the claim is contested. Accordingly, looking at all the circumstances, the explanation, moderately satisfactory, the demonstrable good faith, and the existence of a triable defence, I find that the applicants have established good and sufficient cause for rescission of the default judgment. The justice of the case clearly favours letting this matter be heard on the merits. Conclusion and Disposition For the reasons given, the application for rescission of the default judgment succeeds. The applicants have met the three requirements for rescission and thus satisfied the court that this is an appropriate case to exercise its discretion in their favour. The default judgment entered against them will be set aside, and the matter will proceed to trial in the normal course. In the result, it is ordered as follows – The application for rescission of judgment in HCH 9088/15 be and is hereby granted.The default judgment granted by this Court under Case No. HCH 9088/15 dated 21 October 2024 be and is hereby set aside.The costs of this application shall be costs in the cause Mambara J: ……………………….………………………. Coghlan Welsh & Guest, legal practitioners for the applicants Scanlen & Holderness, legal practitioners for the 1st respondent 4 HH 444 - 25 HCH 5396/24 4 HH 444 - 25 HCH 5396/24 HEATHER MAGODYO and PROSPER SAKALA and HENRY SAKALA versus OLIVER MASOMERA (In his capacity as the appointed executor dative of the Estate Late Agnes Sakala DR 3480/23) and NABOTH GAZA and THE MASTER OF THE HIGH COURT and CHIRONDE ASSOCIATES (PVT) LTD and FREDDY CHIMBARI N.O (In his capacity as the Executor of Estate Late Aaron Sakala DR 1036/13) and HAZEL SAKALA HIGH COURT OF ZIMBABWE MAMBARA J HARARE 16 and 28 July 2025 Opposed Application S. Mbauya, for the applicants R. Mabwe, for the 1st respondent MAMBARA J: This is a judgment in an application for rescission of a default judgment brought under Rule 27(1) of the High Court Rules, 2021. The three applicants – Ms. Heather Magodyo, Mr. Prosper Sakala, and Mr. Henry Sakala – seek to have a default judgment entered against them on 21 October 2024 set aside. The default judgment was granted in favour of the first respondent after the applicants failed to attend or be represented when the matter was called. The applicants contend that they have met the requirements for rescission by showing “good and sufficient cause” for the judgment to be rescinded, as required by Rule 27(2) of the 2021 Rules. The first and second respondents oppose the application, arguing that the applicants were in wilful default and that their application lacks merit and bona fides. Factual Background The relevant facts, largely common cause or drawn from the affidavits and oral evidence, are summarised as follows. The underlying dispute between the parties arises from a family financial transaction. The late Agnes Sakala (the first respondent) came into a significant sum of money after winning a lottery in 2019. She shared a portion of her winnings with members of her family, including the late, Mr. Aaron Sakala and his family who are the applicants herein, by way of gifts of money, houses, and motor vehicles. In particular, the first applicant states that the money given to her family was not a loan but an outright gift, and thus no repayment was ever expected. Sometime later, a dispute arose when the first respondent claimed entitlement to repayment or to certain property, treating what was given as a loan or advance rather than a gift. This led the first respondent to issue summons against the applicants. The applicants duly entered appearance to defend the action, as they maintain that the first respondent’s claim is without merit. The matter did not proceed to trial promptly. According to the first applicant, the case lay dormant for an extended period after pleadings. Crucially, the legal practitioner who had been handling the matter for the first applicant left the law firm which was handling this matter during this lull and failed to transfer or properly hand over the case file to any other practitioner in the firm. Meanwhile, the second and third applicants (Prosper and Henry Sakala) were being represented by a different law firm. At the time the action was commenced, the second and third applicants were minors, and they had little to no direct contact with their lawyer. They allege they were never informed of any hearing date by that lawyer. In October 2024, the first respondent set the matter down for a default judgment hearing on the unopposed roll. Notice of set down was served, but due to the above circumstances, none of the applicants nor their legal representatives became aware of the hearing. The first applicant’s former lawyer was no longer at his firm, and no one there was actively handling the file. The other applicants’ lawyer, on the other hand, had not kept them informed and did not attend. As a result, when the case was called on 21 October 2024, the applicants were in default of appearance. The High Court (sitting in default) granted judgment in favour of the first respondent, thereby giving him the relief, he sought in the action. The applicants state that they only learned of the default judgment weeks later, when a relative privy to the court outcome informed them. They moved with haste to engage new legal counsel and prepared this rescission application, which was filed in November 2024. The application was thus made within one month of the applicants gaining knowledge of the default judgment, satisfying the temporal requirement of Rule 27(1). The applicants also obtained a provisional stay of execution pending determination of this rescission application, given that the default judgment involved transfer of substantial assets. The respondents, in their opposing papers, dispute the applicants’ explanation for the default. They aver that the applicants were clearly in wilful default, or at least grossly negligent, for failing to follow up on their case. The respondents emphasize that the Notice of Set Down was properly served on the applicants’ legal practitioners of record, and argue that any mishandling or omission by those lawyers should be imputed to the applicants. Notably, the respondents point out that the applicants did not file an affidavit from the first applicant’s former lawyer who is blamed for failing to attend to the case. Relying on the authority of RioZim Ltd v Nigel Dixon-Warren N.O. SC 21/23, the respondents contend that an explanation which pins the default on a lawyer’s negligence is inadequate in the absence of a supporting affidavit from that lawyer. They submit that the principle of party representation in our law does not permit an applicant to simply exonerate themselves by foisting blame on their legal practitioner without evidence – “the sins of the legal practitioner” cannot be avoided without confirmation from that practitioner. Against this factual backdrop, the Court must determine whether the applicants have shown “good and sufficient cause” to rescind the default judgment. In Zimbabwean law, this entails an examination of three well-established elements: whether the applicants have given a reasonable explanation for their default; whether the application for rescission has been made bona fide (in good faith); and whether the applicants have a bona fide defence on the merits of the case with some prospects of success I proceed to outline the governing legal principles before applying them to the facts at hand. Legal Framework Rule 27(2) of the High Court Rules, 2021 provides that on an application for rescission of a default judgment, “the court may set aside the judgment given in default” if the applicant establishes good and sufficient cause for such rescission. The Rules deliberately leave the term “good and sufficient cause” flexible. It confers a broad discretion on the court, one that cannot be encapsulated in a hard-and-fast definition. However, decades of case law have distilled the general guidelines for what constitutes good and sufficient cause in this context. In the leading case of Stockil v Griffiths 1992 (1) ZLR 172 (SC), Gubbay CJ set out the three fundamental requirements that an applicant for rescission must satisfy to discharge the onus of proving good and sufficient cause. These are: A reasonable explanation for the default: The applicant must explain why the default occurred (e.g. failure to file a plea or to appear at the hearing) and this explanation must be reasonable and credible in the eyes of the court. An explanation that reveals wilful default or gross negligence would generally not qualify as “reasonable”. Bona fides of the application: The application to rescind must be made in good faith. The applicant should demonstrate that they genuinely seek to correct an injustice (the default judgment) in order to defend the case on the merits, rather than using the application as a tactic to delay or harass. Good faith is evidenced by the promptness of the application, the absence of intention to deliberately stall proceedings, and consistency in the applicant’s conduct and explanations. Bona fide defence on the merits: The applicant must put forward a defence to the original claim which is bona fide and carries at least some prospect of success if the matter goes to trial. This does not mean the defence must be proved on the affidavits, but the averments should disclose a prima facie defence that is not frivolous. In other words, there must be a triable issue. Courts are naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard, when he protests that he has a valid defence. If a valid or arguable defence is shown, the court tends to favour granting rescission so that the matter can be decided on the merits after a hearing. These factors were reaffirmed in many decisions, such as Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) and Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp. Ltd 1988 (1) ZLR 368 (SC). They continue to govern rescission applications under the current rules which are substantively similar on this point to the former Order 63 of 1971. Indeed, in Deweras Farm, the Supreme Court emphasized that the High Court Rules only require “good and sufficient cause” for rescission, which is a deliberately broad concept. The court has a wide discretion, and even a case of wilful default by a defendant does not automatically preclude rescission. There “may still sometimes be good and sufficient cause for granting rescission” in exceptional circumstances. The motive behind the default or other mitigating factors might provide such cause. Each case turns on its own facts and the overall equities. That said, if an applicant’s default is found to be wilful (deliberate) or a result of gross indifference, the court will generally not indulge them with rescission. Wilful default has been judicially defined as occurring “when a party, with full knowledge of the service or set-down of the matter, and of the risks attendant upon default, freely takes a decision to refrain from appearing”. This definition, stated in Hutchison & Anor v Logan 2001 (2) ZLR 1 (H) and Zimbabwe Banking Corp. Ltd v Masendeke 1995 (2) ZLR 400 (S), underscores that a conscious, deliberate decision not to attend to a case despite knowledge of it amounts to wilful default. It is rarely a clear-cut concept, because there is almost always an element of negligence involved. The question is whether the negligence was so gross as to be tantamount to wilfulness. Even in extreme cases of apparent wilful default, if an applicant can furnish a satisfactory explanation for his inaction, one that shows his default should be excused in the interests of justice, and if other circumstances including a strong defence on the merits justify it, then “good and sufficient cause may be established” despite the initial wilfulness. The court’s discretion remains paramount and is exercised in light of all the circumstances. Importantly, our courts have warned against treating any one of the three requirements in isolation. The factors are interrelated and must be considered in conjunction with one another and with the application as a whole. A strong showing on one factor may offset a weaker showing on another. For instance, “an unsatisfactory explanation for default may be strengthened by a very strong defence on the merits, and a completely satisfactory explanation may cause the court not to scrutinise too closely the defence on the merits.” Conversely, a flimsy defence may require a particularly compelling explanation for default to justify rescission, and a lack of bona fides can fatally undermine even a plausible defence. This holistic approach was articulated in Trustees of Tongogara Community Share Ownership Trust v Matrix Realty (Pvt) Ltd HH 247-18, which echoed the sentiment from an older case (Du Preez v Hughes No 1957 R&N 706) that undue emphasis should not be placed on one factor. All relevant factors must be weighed together. Finally, the court is mindful of the competing policy considerations at play. As McNally JA famously noted in Ndebele v Ncube 1992 (1) ZLR 288 (S), “It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants.” The interests of finality must be balanced against the fundamental principle that, where possible, disputes should be resolved on their merits after both sides have had an opportunity to be heard. The rescission mechanism exists to prevent irreparable injustice in appropriate cases, but it should not be abused to prolong litigation endlessly. With these principles in mind, I turn to assess the present application against the three requirements. Explanation for the Default The first enquiry is whether the applicants have given a reasonable and acceptable explanation for their default. In their founding papers, the applicants explained in detail how it came to pass that none of them nor their lawyers were present when the matter was heard. In brief summary, the first applicant’s attorney of record at the relevant time had departed the law firm without ensuring that the file was reassigned or that the clients were informed of developments. The case, which had been dormant for many months, did not receive attention from any other lawyer at that firm once the responsible attorney left. Thus, when the Notice of Set Down for the default judgment hearing was served on that firm’s address, it apparently went unnoticed or unacted upon. The applicants assert that they were genuinely unaware of the court date and did not deliberately abscond or ignore their case. On the surface, this explanation reveals a troubling lack of diligence by the applicants’ former legal practitioners. The respondents have argued that such an explanation is inadequate, especially without corroboration from the lawyer who supposedly left the first applicant in the lurch. They cite the RioZim Limited v Dixon-Warren N.O. SC 21/23 judgment and similar authorities for the proposition that an applicant cannot simply shift blame to a legal practitioner in order to avoid the consequences of default. Generally, if a litigant’s excuse for default is that their lawyer was negligent or failed to act, the courts require evidence of that failure often in the form of an affidavit from the lawyer acknowledging his or her fault. In the present case, no such affidavit from the first applicant’s previous counsel has been furnished. This omission is indeed concerning, and the Court accepts the respondents’ submission that ideally the lawyer responsible for the file ought to have given a supporting explanation. The lack of direct confirmation from that practitioner means the applicants carry a heavier burden to persuade the Court that their story is truthful and that the default was not wilful. Having said that, the Court must consider the explanation in its totality and context, not mechanistically box-tick requirements. It is undisputed that the case had long been idle and that the first applicant’s lawyer of record changed during this period. Correspondence annexed to the founding affidavit supports the fact that he left the firm around 2015, well before the October 2024 set down. There is also no evidence that the applicants themselves had any knowledge of the pending default hearing. On the contrary, the sequence of events – the filing of a defence, the dormancy of the matter, and then the applicants’ prompt action as soon as they discovered the judgment – tends to negate any suggestion that the applicants consciously ignored the case. As was observed in Mdokwani v Shoniwa 1992 (1) ZLR 269 (S), the court should be cautious before imputing wilfulness to a litigant when the surrounding circumstances point to inadvertence or misunderstanding rather than a deliberate intent to abandon the case. Here, the first applicant was let down by her legal representative’s lapse, and the other two applicants, being very junior and previously uninvolved, were essentially oblivious to the process. There is nothing in the applicants’ conduct to suggest that they "freely took the decision to refrain from appearing" with full knowledge of the risks of default. To the contrary, once aware of the judgment, they moved quickly to challenge it. It is true that negligence played a roll. Someone in the employ of the first applicant’s attorneys should have monitored the case or at least updated the clients. The second and third applicants’ guardian or lawyer similarly ought to have been proactive. The explanation is not a model of diligence. It reveals an unfortunate combination of oversight and miscommunication. However, the question is whether this amounts to wilful default or a flagrant breach of the rules such that rescission should be denied. In my view, it does not. The applicants’ default was not a product of a deliberate decision to ignore the court proceedings. It was a result of disorganization and an attorney’s failure – a failure which the applicants themselves were in no position to detect at the time. Our courts have often excused defaults caused by reasonable mistakes or administrative errors, especially where the litigant moved swiftly to rectify them once discovered. For example, in Ndebele v Ncube, the Supreme Court acknowledged that while finality is important, a litigant should not lightly be denied a hearing if his default was not wilful and can be excused without injustice. The respondents’ reliance on RioZim v Dixon-Warren (and the Diocese of Harare v CPCA precedent cited therein) is noted. Indeed, a court cannot simply ignore a litigant’s non-compliance because “the lawyer was at fault.” Each case turns on whether the explanation is acceptable. In RioZim, the Supreme Court refused to accept an explanation for delay in noting an appeal because the applicant blamed his lawyers but provided no supporting affidavit. Thus, the explanation was deemed unsubstantiated and unacceptable. In the present matter, we are dealing with rescission of a default judgment (not an appeal), and the explanation, though lacking an affidavit from the departed lawyer, is bolstered by other evidence and the inherent probabilities. Moreover, the applicants here are not simply seeking indulgence after a long delay. They acted within the prescribed time, indicating they did not acquiesce in the judgment. On the specific facts, the Court is inclined to accept that the applicants have given a reasonable explanation for their default. It was a reasonable (if not impeccable) explanation in the sense that it accounts for the default in a way that does not betray a deliberate disregard of the court process. There was confusion and inadvertence, not a conscious decision to abandon the defence. Additionally, I take into account that even if one were to find the explanation somewhat wanting, due to the missing affidavit or the degree of negligence involved, this is only one part of the triad of factors. As will be seen, the applicants present a substantially convincing case on the other two requirements (good faith and merits of the defence), which can compensate for imperfections in the explanation. In the final analysis, I am satisfied that the applicants’ default, while negligent, was not wilful. The explanation they have offered is adequate to clear the threshold of reasonableness when all circumstances are weighed. Bona Fides of the Application The second requirement examines whether the applicants are proceeding in good faith in seeking rescission. This involves an inquiry into the motive and manner in which the application was made. A bona fide application is one that is genuinely intended to have the case heard on the merits, as opposed to being an opportunistic stratagem to buy time or vexate the other side. In assessing bona fides, the court considers factors such as the promptness of the application, the consistency and honesty of the applicant’s conduct, and the overall plausibility of their stance. In this case, the applicants’ conduct indicates genuine intent. They acted with commendable promptitude by filing this application within a couple of weeks of discovering the default judgment, well within the one-month limit of the rules. Such prompt action is usually a strong sign of good faith. It shows the applicants did not sit on their rights or accept the judgment lying down. Furthermore, the applicants have been frank and detailed in explaining the circumstances of their default. In their founding affidavit and supporting statements, they laid out the events including admitting the oversight by their own lawyer in a manner that appears transparent and contrite. There is no hint that they deliberately engineered the default or that they are using this application as a delay tactic. On the contrary, they assert that they have always intended to defend the claim and were taken by surprise when the judgment was entered. The fact that they had filed a plea (and in the first applicant’s case, engaged lawyers from the start) is consistent with an intention to resolve the dispute on the merits. The respondents did not point to any specific conduct by the applicants that would indicate a lack of bona fides, aside from the default itself. They argued that the application is without merit and should be dismissed, but that goes to the merits and explanation rather than to bad faith per se. It is noteworthy that there is no history of dilatory tactics by the applicants. For instance, this is not a case where the applicants previously conceded liability or let judgment go by consent and then changed their mind. This rescission bid is their first and only attempt to set aside the judgment, made promptly and in accordance with the rules. As highlighted in Dr Mangezi v Dr Kasu HH 132/24 (a recent judgment of this Court), demonstrating bona fides entails showing consistency and genuineness throughout the process. The applicants must take the Court into their confidence about what led to the default, and their intention moving forward must be to genuinely contest the matter on valid grounds, not simply to delay the inevitable. In casu, the applicants have given a full account of the mishap that led to the default and have backed up their claims with supportive detail. This is not behaviour one associates with mala fide litigation. I am satisfied that the application is made in good faith. The applicants seek an opportunity to defend what they believe is a just cause, and there is no indication of an ulterior motive. They have not, for example, abused the process by repeatedly failing to comply with rules or by filing this application out of time. All procedural indications are that this is a genuine effort to correct an unfortunate default so that the real dispute can be determined. I therefore find that the requirement of bona fides has been met. Bona Fide Defence on the Merits The third and perhaps most crucial element is whether the applicants have a bona fide defence to the first respondent’s claim, which carries some prospect of success. It is well established that at this rescission stage the applicant need not prove their defence on a balance of probabilities. They must allege facts which, if proved at trial, would constitute a valid defence. In other words, the defence should not be a sham or a frivolous dilatory answer. It should be prima facie plausible and not obviously hopeless. In their founding papers and draft plea, the applicants outline a clear and substantive defence. They maintain that the first respondent’s claim for payment of money and certain assets is baseless because the underlying transactions were gifts, not loans or debts. According to the first applicant, after her lottery windfall the first respondent voluntarily distributed money and property to various family members out of generosity. She asserts that the fifth respondent was one such beneficiary, receiving a significant sum of money from the first respondent as a gift, with no strings attached. She produces copies of letters and contemporaneous messages in which the fifth respondent acknowledged the “gift” and expressed gratitude – documentation which, if authenticated, would strongly support her version that no repayment obligation was contemplated. The applicants therefore aver that the first respondent has no cause of action. One cannot sue to recover a gift that was freely given. This contention, if proven, would indeed defeat the claim in its entirety. The first respondent’s contrary position as gleaned from the summons and opposing affidavit is that the money in question was not a gift but something given in expectation of reimbursement, essentially a loan or conditional transfer. This presents a classic dispute of fact: was the sum a loan or a gift? Such a dispute can only be resolved by examining the evidence, including the parties’ intentions and any corroborative documents or testimony, at a trial. On the face of it, the applicants’ defence is far from frivolous. It goes to the very heart of the plaintiff’s claim. If the applicants’ version is true, then the first respondent’s claim would fail. There is at least a “triable issue” here, meaning an issue that a court ought to hear and adjudicate on the merits. Moreover, the defence advanced is inherently plausible. It is not a technical or fanciful defence concocted after the fact. It aligns with the narrative of familial sharing of lottery proceeds. It is common cause that the first applicant came into a large sum of money and disbursed part of it to relatives. The crux is whether those disbursements were gifts or loans. Both scenarios are believable in a family context, but the point is that the applicants have a potentially valid defence that should be heard. Our law abhors the notion of shutting the door on a litigant who claims to have a legitimate defence, without testing that claim. As referenced earlier, McNally JA’s remark in Songore v Olivine Industries resonates here. A court is naturally reluctant to let a judgment stand against someone who insists they have a valid defence and who was not heard due to a mishap. Justice is best served by allowing the matter to proceed to trial so the truth of the matter can be determined. The respondents in opposition did not seriously contend that the applicants lack any defence. Their focus was more on procedural default and the alleged inadequacy of the explanation. While they might believe the applicants’ defence will ultimately not succeed, that is not the test at this stage. They have not shown the defence to be bogus on its face. In fact, by strenuously resisting rescission, the respondents implicitly signal that the defence could give them trouble, otherwise they would have little to fear from it being ventilated. In sum, the applicants have demonstrated a bona fide defence with real prospects of success. The dispute over the nature of the transaction (gift vs loan) is a substantive one that merits a hearing. There are factual conflicts that only a proper trial can resolve. This factor weighs heavily in favour of granting rescission, because our courts lean towards allowing matters to be resolved on the merits when a non-trivial defence exists. Weighing the Factors Cumulatively Having considered each of the three requirements individually, the Court must take a step back and view them together, in light of the totality of circumstances. This cumulative assessment is crucial because, as noted, a weakness in one area may be cured by strength in another. In the present case, the strongest factors in the applicants’ favour are the bona fide defence they have disclosed and the good faith with which they have approached the Court. The explanation for default, while not exemplary, is adequate and not indicative of wilful flouting of the rules. When these factors are combined, I am persuaded that “good and sufficient cause” has been shown for rescission. The slight misgivings about the completeness of the explanation (such as the missing lawyer’s affidavit) are overcome by the compelling interest of allowing a potentially meritorious defence to be heard. As the Court observed in the Tongogara CSOT v Matrix Realty case, “too much emphasis must not be placed on one factor.” All factors must be weighed in conjunction. In this case, even if one were to view the explanation for default as somewhat unsatisfactory, it is strengthened by a very strong defence on the merits, to borrow the words of the court in Tongogara. Likewise, the applicants’ evidently sincere desire to have their day in court causes me to not scrutinise too exactingly the flaws in their explanation. On balance, refusing rescission in this matter would occasion a greater injustice than granting it. The policy of finality in judgments, while important, must yield to the need to do justice in the particular case. Here, finality was achieved by default, essentially on a technicality and miscommunication. The substantive merits have never been examined. Denying the applicants the opportunity to be heard could result in an injustice. For instance, it would compel them to pay a substantial sum or surrender property which they might not owe at all if their version is true. Conversely, granting rescission merely restores both parties to an even footing. The first respondent will not be unduly prejudiced, except by the loss of an unopposed victory. He will have the chance to prove his claim in a full trial. Any prejudice in terms of delay or costs can be tempered by an appropriate costs order, but fundamentally, both sides will have the dispute decided on its merits, which is the cornerstone of our civil justice system. I am also mindful that the first respondent’s conduct is not beyond reproach. While not heavily canvassed in arguments, there is an undertone that the first respondent might have taken advantage of the applicants’ lapse to “snatch a judgment” in their absence. The chronology shows he proceeded to set the matter on the unopposed roll despite knowing that at least some defence had been filed earlier and that the applicants were initially defending the suit. If he was aware (as often happens in family disputes) that the applicants might not have received notice, then a degree of opportunism might have been at play. Our courts have cautioned against snatching at judgments and emphasized that legal practitioners should always act to ensure real disputes are justly resolved, rather than merely capitalizing on a momentary default. I am mindful of the submission by Ms Mabwe, counsel for the 1st respondent, that at her request, the matter was postponed to allow physical service of the notice of set down on the 1st applicant’s legal practitioners and that indeed service was so effected. I do not make a specific finding of mala fides on the first respondent’s part, but I note that he will not suffer any legitimate injustice if the matter is reopened. He will simply be put to the proof of his claim, which is what should occur if the claim is contested. Accordingly, looking at all the circumstances, the explanation, moderately satisfactory, the demonstrable good faith, and the existence of a triable defence, I find that the applicants have established good and sufficient cause for rescission of the default judgment. The justice of the case clearly favours letting this matter be heard on the merits. Conclusion and Disposition For the reasons given, the application for rescission of the default judgment succeeds. The applicants have met the three requirements for rescission and thus satisfied the court that this is an appropriate case to exercise its discretion in their favour. The default judgment entered against them will be set aside, and the matter will proceed to trial in the normal course. In the result, it is ordered as follows – The application for rescission of judgment in HCH 9088/15 be and is hereby granted. The default judgment granted by this Court under Case No. HCH 9088/15 dated 21 October 2024 be and is hereby set aside. The costs of this application shall be costs in the cause Mambara J: ……………………….………………………. Coghlan Welsh & Guest, legal practitioners for the applicants Scanlen & Holderness, legal practitioners for the 1st respondent