Nyakudanga v Ncube-Chimhini (438 of 2025) [2025] ZWHHC 438 (23 July 2025)

3 HH 438-25 HCH 4764/24 FARAI FRED NYAKUDANGA versus POLISILE NCUBE-CHIMHINI IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE 14 May 2025 & 23 July 2025 Application for rescission of judgment Applicant in person W Zhangazha, for the respondent DUBE-BANDA J: [1] This is an application for rescission of judgment in terms of r 27(1) of the High Court Rules, 2021. The applicant seeks that a default judgment granted on 16 October 2024 in HCH 2846/26 (“the main matter”) be rescinded and the matter be re-enrolled on the opposed roll. The application is opposed on a preliminary point and the merits of the matter. [2] The background of this matter is that the applicant contends that he is member of the Zimbabwe Music Rights Association (“ZIMURA or association”), and the respondent is its Board Secretary or Association Secretary. The applicant is alleged to have published an online article and shared the link on Facebook. Arising from the online article, the respondent as plaintiff in the main matter sued out a summons against the applicant as defendant claiming defamation damages in the sum of USD$50 000.00, and in addition USD$50 000.00 damages for injuria in respect of humiliation and indignity she allegedly suffered because of the defendant’s publication. [3] On 16 October 2024, this court (per Mhuri J) granted a default judgment against the applicant in the following terms: The defendant pays plaintiff a total sum of USD20 000.00 within 10 days of this order, payable in the local currency at the prevailing interbank rate. Defendant pays interest on the total sum, payable in local currency at the prevailing interbank rate calculated from the date of this order to the date payment in full. Defendant to pay costs of suit. [4] The applicant's case is that he was not served with the summons in the main matter. It is against this background that the applicant seeks an order for rescission of the default judgment granted on 16 October 2024. [5] The respondent took a preliminary point that the application is not properly before court as it was filed despite an automatic bar operating against the applicant in terms of r 20(7) of the High Court Rules, which provides that a defendant who has failed to enter appearance to defend shall be barred. My view is that a litigant in an application for rescission, wherein the judgment sought to be rescinded was obtained because of the failure to enter an appearance to defend, does not need to first seek the removal of the bar. In the reading of r 27 of the rules such a litigant must satisfy the court that there is good and sufficient cause to set aside the judgment concerned. There is no requirement that such a litigant must first seek the removal of the bar. In such circumstances, the issue of first seeking removal of the bar does not arise. [6] The case of Dube v Parkview Weizman Sports Club 2020 (2) ZLR 888 (H) is pertinent in this regard. Kabasa J stated therein: “What is the purpose of seeking upliftment of bar in these circumstances? ………...Where a default judgment has been entered and a party seeks to have that judgment rescinded, the vacation of that judgment allows the ventilation of any other issues. An application for upliftment of the bar where judgment has already been entered does not, in my respectful view, make much sense. I therefore hold the view that the applicant cannot be non-suited and the application for rescission be consequently struck off the roll as prayed for by the respondent, because an application for upliftment of a bar ought to have been filed first.” [7] I agree with the above exposition. No useful purpose would be served by applying for an upliftment of a bar in a case where a default judgment has been granted. Such would be a senseless exercise in futility. It is for the above reasons that the preliminary point has no merit and is refused. [8] In a counter attack mode, the applicant argued that the respondent’s counsel, Mr Zhangazha, is conflicted and must be ordered to withdraw from this matter. This contention is premised on the fact that Mr Zhangazha is the legal advisor to ZIMURA where applicant is a member and the respondent an employee in the position of Board Secretary. Per contra, Mr Zhangazha submitted that he is a board member and legal advisor to the association and the applicant had been dismissed from the association. Mr Zhangazha further submitted that he is not a legal advisor to the applicant, neither has he ever received confidential information from him about this case. Counsel further submitted that the association has hundreds of members, he does not know the applicant personally and knows him only in connection with this case. Mr Zhangazha submitted that a case of conflict of interest has not been established, warranting his withdrawing from the matter. [9] A conflict of interest is a situation in which a person or entity has competing interests or loyalties that could compromise their ability to act impartially or in the best interest of their clients. Conflicts of interest are taken very seriously in the legal profession, as they should be. They can undermine the integrity of the legal system and erode public trust in the profession. Legal practitioners have a fiduciary duty to act in the best interests of their clients and to avoid any conflicts that could compromise their ability to do so. Conflicts of interest can arise in various ways in the legal field. See Huzodi Investements (Pvt) Ltd v Keni Clement Mutombo and 8 Other (585 of 2024) [2024] ZWHHC 585 (25 September 2024. [10] In casu, there is neither an allegation nor evidence that Mr Zhangazha nor his law firm hold confidential information from the applicant. In other words, there has not been a previous attorney-client relationship between counsel and the applicant. The fact that the applicant is or was a member of the association wherein Mr Zhangazha is a board member and legal advisor is too remote to ground a case for conflict of interest. In addition, the dispute is not between the applicant and the association, it is between two private persons. The fact that the statement complained about has something to do with the respondent’s employment with the association is of no moment. To bar Mr Zhangazha from representing the respondent in this matter would erode the respondent’s constitutional right to be represented by a legal practitioner of her choice. In other words, it would amount to serious inroad into the right to be represented by a legal practitioner of one’s choice. In any event, such a bar would extend the horizons of conflict of interest rather too far. A case of conflict of interest against Mr Zhangazha has not been established. In the circumstances, this preliminary objection is refused. [11] I now turn to the merits of the matter. In terms of r 27(1) a party against whom a judgment has been given in default may make a court application, not later than one month after he had knowledge of the judgment to be set aside. The default judgment was granted on 16 October 2024, and this application was filed on 30 October 2024. Therefore, this application was filed within the timeline allowed by the rules of court. [12] The requirements for setting aside a judgment granted in default are trite in this jurisdiction. In the reading of r 27 of the High Court Rules, in an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order. See Zinondo v CAFCA Limited SC 64/17. The factors which a court will consider in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by r 27 have been stated in numerous case authorities, they are (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole. See Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173D-F. [13] The applicant contends that he was not served with the summons, in that it was served at a wrong address. The applicant resides at number 5 Vashandi Road, Zengeza 3. According to the return of service, the summons was served on 2 May 2023 at number 5 Vashandi Road, Zengeza 3 by affixing a copy thereof to the outer principal maroon gate after unsuccessful diligent search at 15:09 hours. On 27 September 2024 the Sheriff wrote a letter to the applicant, in which the last paragraph reads thus: “However, upon further investigations, it has come to our attention that the address for which the summons where (sic) served is number 15 Vashandi Road instead of 5 Vashandi road.” [14] The respondent attacked this letter. It was contended that it constituted inadmissible hearsay evidence. It was further contended that the Sheriff neither served this letter to the respondent nor her legal practitioners. I take the view that the letter from the Sheriff is admissible on the premise that it is, in the reading of s 12 of the Civil Evidence Act [Chapter 8:01] it is an official document made by a public officer pursuant to his duty to ascertain the truth of the matter. Regarding the allegation that it was not served on the respondent nor her legal practitioners, I take the robust view that such is an issue between the respondent and the Sheriff. It cannot prevent this court from relying on the contents of the letter. In fact, this letter corroborates the applicant’s contention that there is no marron gate at his residence. [15] In addition, the respondent argued that the applicant knew about the matter on 13 August 2024, two months before the default judgment was granted on 16 October 2024. This argument has no merit, I say so because the issue is not whether the applicant knew of the existence of this case prior to default judgment, but whether the summons was served in terms of the requirements of the law. To ascertain whether a summons was served in terms of the law, the court looks no further than r 15(4) of the High Court Rules, 2021 which says: “Service of a summons, all notices of set down, writ, warrant or court order shall be effected by the Sheriff.” [16] It is therefore inconsequential how a litigant acquires knowledge of the existence of a summons, for service to be valid it must be served by the Sheriff. To argue that the applicant had knowledge of the case before default judgment was granted is of no moment. What must be established is that he was served by the Sheriff. [17] In casu, the summons was served at a wrong address. The Sheriff says on further investigation it was noted that the summons was served at number 15 Vashandi Road instead of 5 Vashandi Road. The applicant resides at number 5 Vashandi Road. This court cannot ignore such an important factual position which goes to the heart of the validity of the service of the summons. In the circumstances, I take the view that the applicant has proffered a reasonable explanation for the default. He was not in wilful default. [18] Having found that the explanation for the default is reasonable, what is left is the task of assessing whether the applicant has prospects of success against the respondent’s claim. The respondent contends that the applicant has no prospects of success on the merits in that the publication complained about describes the respondent by her rank of Executive Director. Further, by her gender as “this lady,” and by what she does in the association. Per contra, the applicant contends that he has prospects of success in the main matter. I am persuaded by the applicant’s submissions that he has prospects of success in the main matter. I say so because the publication complained about does not mention anyone by name. It mentions the Executive Director, however, there is no evidence that the respondent is the Executive Director. The applicant placed before this court warned and cautioned statement made by the respondent to the police wherein, she described herself as the Principal Officer of ZIMURA as well as the secretary to its Board. In addition, in the C.R. 14 her name is listed under Secretaries or Principal Officer. On these facts, I take the view that the identity of the person referred to in the publication is not common cause, it is an issue that the trial court will have to hear evidence and make factual findings. In addition, even if the respondent was to succeed in the issue of liability, still the issue of quantum of damages will have to be considered. The court will have to consider both aggravating and mitigating factors to arrive at the quantum of damages. In granting a default judgment, the court did not have the benefit of mitigating factors. The amount awarded to the respondent, might well be reduced. It is on these grounds that the applicant has prospects of success in the main matter. [19] This application has not been filed in answer to a writ of execution. It appears to me that it has been filed with a genuine desire to have the order sought to be rescinded vacated. It therefore passes the test of bona fides of the application to rescind the default judgment. In the circumstances, there is good and sufficient cause to set aside the judgment in the main matter. It is for the above reasons that this application must succeed. [20] The question of costs remains to be considered. Good grounds exist for a departure from the general rule that costs follow the event. Notwithstanding his success in this matter, I do not think the applicant is entitled to costs. For completeness, I think the opposition was more from the emotion than based on the requirements of the law. This is a border line case of attempting to cling to a default judgment. See Zimbank vs. Masendeke 1995 (2) ZLR 400 (S) at page 401-3. Notwithstanding, the respondent will escape to be mulct with costs but must be warned that clinging to a default judgment might attract an adverse order of costs. In the circumstances, a no cost order will meet the justice of this case. In the result, I order as follows: The default judgment in HCH 2846/23 be and is hereby set aside in terms of r 27 of the High Court Rules, 2021. The applicant as defendant to enter a notice to defend within ten (10) days of this order. Thereafter, the matter shall proceed in terms of the rules of court. There is no order as to costs. Dube-Banda J:…………………………………………… Chinogwenya & Zhangazha, respondent’s legal practitioners 3 HH 438-25 HCH 4764/24 3 HH 438-25 HCH 4764/24 FARAI FRED NYAKUDANGA versus POLISILE NCUBE-CHIMHINI IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE 14 May 2025 & 23 July 2025 Application for rescission of judgment Applicant in person W Zhangazha, for the respondent DUBE-BANDA J: [1] This is an application for rescission of judgment in terms of r 27(1) of the High Court Rules, 2021. The applicant seeks that a default judgment granted on 16 October 2024 in HCH 2846/26 (“the main matter”) be rescinded and the matter be re-enrolled on the opposed roll. The application is opposed on a preliminary point and the merits of the matter. [2] The background of this matter is that the applicant contends that he is member of the Zimbabwe Music Rights Association (“ZIMURA or association”), and the respondent is its Board Secretary or Association Secretary. The applicant is alleged to have published an online article and shared the link on Facebook. Arising from the online article, the respondent as plaintiff in the main matter sued out a summons against the applicant as defendant claiming defamation damages in the sum of USD$50 000.00, and in addition USD$50 000.00 damages for injuria in respect of humiliation and indignity she allegedly suffered because of the defendant’s publication. [3] On 16 October 2024, this court (per Mhuri J) granted a default judgment against the applicant in the following terms: The defendant pays plaintiff a total sum of USD20 000.00 within 10 days of this order, payable in the local currency at the prevailing interbank rate. Defendant pays interest on the total sum, payable in local currency at the prevailing interbank rate calculated from the date of this order to the date payment in full. Defendant to pay costs of suit. [4] The applicant's case is that he was not served with the summons in the main matter. It is against this background that the applicant seeks an order for rescission of the default judgment granted on 16 October 2024. [5] The respondent took a preliminary point that the application is not properly before court as it was filed despite an automatic bar operating against the applicant in terms of r 20(7) of the High Court Rules, which provides that a defendant who has failed to enter appearance to defend shall be barred. My view is that a litigant in an application for rescission, wherein the judgment sought to be rescinded was obtained because of the failure to enter an appearance to defend, does not need to first seek the removal of the bar. In the reading of r 27 of the rules such a litigant must satisfy the court that there is good and sufficient cause to set aside the judgment concerned. There is no requirement that such a litigant must first seek the removal of the bar. In such circumstances, the issue of first seeking removal of the bar does not arise. [6] The case of Dube v Parkview Weizman Sports Club 2020 (2) ZLR 888 (H) is pertinent in this regard. Kabasa J stated therein: “What is the purpose of seeking upliftment of bar in these circumstances? ………...Where a default judgment has been entered and a party seeks to have that judgment rescinded, the vacation of that judgment allows the ventilation of any other issues. An application for upliftment of the bar where judgment has already been entered does not, in my respectful view, make much sense. I therefore hold the view that the applicant cannot be non-suited and the application for rescission be consequently struck off the roll as prayed for by the respondent, because an application for upliftment of a bar ought to have been filed first.” [7] I agree with the above exposition. No useful purpose would be served by applying for an upliftment of a bar in a case where a default judgment has been granted. Such would be a senseless exercise in futility. It is for the above reasons that the preliminary point has no merit and is refused. [8] In a counter attack mode, the applicant argued that the respondent’s counsel, Mr Zhangazha, is conflicted and must be ordered to withdraw from this matter. This contention is premised on the fact that Mr Zhangazha is the legal advisor to ZIMURA where applicant is a member and the respondent an employee in the position of Board Secretary. Per contra, Mr Zhangazha submitted that he is a board member and legal advisor to the association and the applicant had been dismissed from the association. Mr Zhangazha further submitted that he is not a legal advisor to the applicant, neither has he ever received confidential information from him about this case. Counsel further submitted that the association has hundreds of members, he does not know the applicant personally and knows him only in connection with this case. Mr Zhangazha submitted that a case of conflict of interest has not been established, warranting his withdrawing from the matter. [9] A conflict of interest is a situation in which a person or entity has competing interests or loyalties that could compromise their ability to act impartially or in the best interest of their clients. Conflicts of interest are taken very seriously in the legal profession, as they should be. They can undermine the integrity of the legal system and erode public trust in the profession. Legal practitioners have a fiduciary duty to act in the best interests of their clients and to avoid any conflicts that could compromise their ability to do so. Conflicts of interest can arise in various ways in the legal field. See Huzodi Investements (Pvt) Ltd v Keni Clement Mutombo and 8 Other (585 of 2024) [2024] ZWHHC 585 (25 September 2024. [10] In casu, there is neither an allegation nor evidence that Mr Zhangazha nor his law firm hold confidential information from the applicant. In other words, there has not been a previous attorney-client relationship between counsel and the applicant. The fact that the applicant is or was a member of the association wherein Mr Zhangazha is a board member and legal advisor is too remote to ground a case for conflict of interest. In addition, the dispute is not between the applicant and the association, it is between two private persons. The fact that the statement complained about has something to do with the respondent’s employment with the association is of no moment. To bar Mr Zhangazha from representing the respondent in this matter would erode the respondent’s constitutional right to be represented by a legal practitioner of her choice. In other words, it would amount to serious inroad into the right to be represented by a legal practitioner of one’s choice. In any event, such a bar would extend the horizons of conflict of interest rather too far. A case of conflict of interest against Mr Zhangazha has not been established. In the circumstances, this preliminary objection is refused. [11] I now turn to the merits of the matter. In terms of r 27(1) a party against whom a judgment has been given in default may make a court application, not later than one month after he had knowledge of the judgment to be set aside. The default judgment was granted on 16 October 2024, and this application was filed on 30 October 2024. Therefore, this application was filed within the timeline allowed by the rules of court. [12] The requirements for setting aside a judgment granted in default are trite in this jurisdiction. In the reading of r 27 of the High Court Rules, in an application for rescission of a default judgment the court must be satisfied that there is good and sufficient cause to rescind the order. See Zinondo v CAFCA Limited SC 64/17. The factors which a court will consider in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by r 27 have been stated in numerous case authorities, they are (i) the reasonableness of the applicant’s explanation for the default; (ii) the bona fides of the application to rescind the judgement; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole. See Stockil v Griffiths 1992 (1) ZLR 172 (S) at 173D-F. [13] The applicant contends that he was not served with the summons, in that it was served at a wrong address. The applicant resides at number 5 Vashandi Road, Zengeza 3. According to the return of service, the summons was served on 2 May 2023 at number 5 Vashandi Road, Zengeza 3 by affixing a copy thereof to the outer principal maroon gate after unsuccessful diligent search at 15:09 hours. On 27 September 2024 the Sheriff wrote a letter to the applicant, in which the last paragraph reads thus: “However, upon further investigations, it has come to our attention that the address for which the summons where (sic) served is number 15 Vashandi Road instead of 5 Vashandi road.” [14] The respondent attacked this letter. It was contended that it constituted inadmissible hearsay evidence. It was further contended that the Sheriff neither served this letter to the respondent nor her legal practitioners. I take the view that the letter from the Sheriff is admissible on the premise that it is, in the reading of s 12 of the Civil Evidence Act [Chapter 8:01] it is an official document made by a public officer pursuant to his duty to ascertain the truth of the matter. Regarding the allegation that it was not served on the respondent nor her legal practitioners, I take the robust view that such is an issue between the respondent and the Sheriff. It cannot prevent this court from relying on the contents of the letter. In fact, this letter corroborates the applicant’s contention that there is no marron gate at his residence. [15] In addition, the respondent argued that the applicant knew about the matter on 13 August 2024, two months before the default judgment was granted on 16 October 2024. This argument has no merit, I say so because the issue is not whether the applicant knew of the existence of this case prior to default judgment, but whether the summons was served in terms of the requirements of the law. To ascertain whether a summons was served in terms of the law, the court looks no further than r 15(4) of the High Court Rules, 2021 which says: “Service of a summons, all notices of set down, writ, warrant or court order shall be effected by the Sheriff.” [16] It is therefore inconsequential how a litigant acquires knowledge of the existence of a summons, for service to be valid it must be served by the Sheriff. To argue that the applicant had knowledge of the case before default judgment was granted is of no moment. What must be established is that he was served by the Sheriff. [17] In casu, the summons was served at a wrong address. The Sheriff says on further investigation it was noted that the summons was served at number 15 Vashandi Road instead of 5 Vashandi Road. The applicant resides at number 5 Vashandi Road. This court cannot ignore such an important factual position which goes to the heart of the validity of the service of the summons. In the circumstances, I take the view that the applicant has proffered a reasonable explanation for the default. He was not in wilful default. [18] Having found that the explanation for the default is reasonable, what is left is the task of assessing whether the applicant has prospects of success against the respondent’s claim. The respondent contends that the applicant has no prospects of success on the merits in that the publication complained about describes the respondent by her rank of Executive Director. Further, by her gender as “this lady,” and by what she does in the association. Per contra, the applicant contends that he has prospects of success in the main matter. I am persuaded by the applicant’s submissions that he has prospects of success in the main matter. I say so because the publication complained about does not mention anyone by name. It mentions the Executive Director, however, there is no evidence that the respondent is the Executive Director. The applicant placed before this court warned and cautioned statement made by the respondent to the police wherein, she described herself as the Principal Officer of ZIMURA as well as the secretary to its Board. In addition, in the C.R. 14 her name is listed under Secretaries or Principal Officer. On these facts, I take the view that the identity of the person referred to in the publication is not common cause, it is an issue that the trial court will have to hear evidence and make factual findings. In addition, even if the respondent was to succeed in the issue of liability, still the issue of quantum of damages will have to be considered. The court will have to consider both aggravating and mitigating factors to arrive at the quantum of damages. In granting a default judgment, the court did not have the benefit of mitigating factors. The amount awarded to the respondent, might well be reduced. It is on these grounds that the applicant has prospects of success in the main matter. [19] This application has not been filed in answer to a writ of execution. It appears to me that it has been filed with a genuine desire to have the order sought to be rescinded vacated. It therefore passes the test of bona fides of the application to rescind the default judgment. In the circumstances, there is good and sufficient cause to set aside the judgment in the main matter. It is for the above reasons that this application must succeed. [20] The question of costs remains to be considered. Good grounds exist for a departure from the general rule that costs follow the event. Notwithstanding his success in this matter, I do not think the applicant is entitled to costs. For completeness, I think the opposition was more from the emotion than based on the requirements of the law. This is a border line case of attempting to cling to a default judgment. See Zimbank vs. Masendeke 1995 (2) ZLR 400 (S) at page 401-3. Notwithstanding, the respondent will escape to be mulct with costs but must be warned that clinging to a default judgment might attract an adverse order of costs. In the circumstances, a no cost order will meet the justice of this case. In the result, I order as follows: The default judgment in HCH 2846/23 be and is hereby set aside in terms of r 27 of the High Court Rules, 2021. The applicant as defendant to enter a notice to defend within ten (10) days of this order. Thereafter, the matter shall proceed in terms of the rules of court. There is no order as to costs. Dube-Banda J:…………………………………………… Chinogwenya & Zhangazha, respondent’s legal practitioners