BOTLINE INVESTMENTS (PVT) LTD and ANOTHER v REDAN COUPON (PVT) LTD (229 of 2025) [2025] ZWHHC 229 (8 April 2025)

4 HH 229-25 HCHC48/24 BOTLINE INVESTMENTS (PVT) LTD And JOHN CHIKUMBA Versus REDAN COUPON (PVT) LTD HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 20 March and 8 April 2025 Application for condonation W.P. Mandinde -for the applicants W. Musikadi -for the respondent CHILIMBE J INTRODUCTION [1] On 28 June 2022, the applicants were ordered, under a default judgment of this court, to deliver to respondent 95,001 litres of diesel or pay to it the sum of US$ 161,586,70. The applicants seek to have this judgment set aside. They apply for condonation for failure to apply for such rescission within 10 days of service of the judgment as required by r 15 of the Commercial Court Rules1. [2] The application was opposed with quite robustly. I may also state that the applicants inadvertently attached to their founding papers, a duplicate application for condonation in place of a draft application for rescission of judgment and attendant bundle. I expunged, on application, the additional papers and permitted the applicants to file their draft application for rescission of the default judgment. [3] This seemingly innocuous remedial process however generated some rather heated disagreements between the parties. The quarrels related to matters that I consider non-germane to the determination of the herein application. I will thus proceed to dispose of this matter on the basis of arguments, issues and papers filed in the main application. [4] The background to the dispute is that first applicant (“Botline”), operated at the material time, a fuel depot on leased premises known as 7 Simon Mazorodze Road in Harare. Redan and Botline concluded a Fuel Supply and Distribution Agreement (“the fuel supply agreement”) on 16 January 2022 in terms of which Redan supplied Botline with bulk fuel for resale. [5] The second applicant, (“Mr Chikumba”) is described in the papers as a director and shareholder of Botline. It is clear from the papers that Mr Chikumba is the key man in Botline. He was sued in his capacity as a surety to the obligations of Botline under the bulk fuel supply agreement. The nature of the contract and status of Mr Chikumba constitute a background relevant to the consideration of the explanations for default discussed hereunder. THE PRELIMINARY POINT OF MOOTNESS [6] Mr Musikadi for Redan moved a preliminary point on mootness on the basis that execution had since taken place. Mr. Mandinde (for the applicants) in response submitted that the judgment debt which stood as of the hearing date at about US$150,000 had not been fully liquidated by the proceeds. The process only yielded about US$75,000 about 50% of the amount outstanding. As such, the applicants still faced the risk of further action. [7] Counsel cited the Supreme Court decision of MDC & 2 Ors v Mashavira & 3 Ors SC 56-20 where PATEL JA (as he then was) outlined the two principal considerations that ought to guide a court confronted with the question of mootness. The learned judge of appeal held at page 33 that; - “The principles governing mootness are relatively well established. The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable – Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19, at p. 7. To put it differently, the controversy must be existing or live and not purely hypothetical – Koko v Eskom Holdings Soc Limited [2018] ZALCJHB 76, at para 21; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC), at para 21 (footnote 18). [Underlined for emphasis] The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case where it is in the interests of justice to do so – Khupe’s case, supra, at p.13; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at 525A-B. This may arise where the court’s determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved – Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), at para 11. In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.” [8] I am satisfied, applying the first ground in MDC v Mashavira to the present circumstances, that the controversy is still alive between the parties. In any event, the applicants seek an opportunity to offset the default judgment rather than just a cessation of execution. (See also the circumstances emanating from paragraph [5] of Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 15-24.) The preliminary objection is therefore disallowed. SERVICE OF THE DEFAULT JUDGMENT [9] Whilst a plaintiff need not notify the defendant of its application for default judgment, it must afterward serve the judgment concerned on the said defendant. The High Court Rules2 as an example prescribe by r 25 (2) that such service must be effected “...as soon as possible”. Rule 14 (2) of the Commercial Court Rules, which is applicable to the present proceedings, sets the period at 48 hours after obtaining judgment. [10] The need to serve defendants with a default judgment was reiterated by this court per KWENDA J in Gilad Shabtai & Anor v Ofer Sivan & 3 Ors HH 95-23. I hold the view that this obligation still sustains, notwithstanding the fact that the IECMS platform automatically posts all developments on the case portal. Herein, the applicants did raise a complaint in paragraphs 4.4 and 7.2 of the founding affidavit, that the default judgment was never served on them. [11] Redan did not specifically dispute this averment. Nor did Mr. Mandinde seem to further pursue it. Not that it would have offset the conclusion of this matter though. But I do note that the issue remained open ended. Given that it is not dispositive of the dispute, I will leave the matter for argument on another day. I take the view that service of the default judgment upon the defendant is (a) a direction in the rules that might be oft neglected and (b) forms part, as further discussed below, of the court`s quest for finality to litigation. THE APPLICATION FOR CONDONATION [12] Counsel from each side correctly identified the principles applicable to the consideration of an application for condonation a nd the relevant authorities3. These were distilled in Read v Gardiner & Anor SC 70-19 at page 4 as follows; - “The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following: The extent of the delay involved or non-compliance in question.The reasonableness of the explanation for the delay or non-compliance.The prospects of success should the application be granted.The possible prejudice to the other party.The need for finality in litigation.The importance of the case.The convenience of the court.The avoidance of unnecessary delays in the administration of justice. See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC 58/07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC 1/13. As was observed in the latter case, the factors listed above are not exhaustive. [13] The court`s discretionary latitude set out in the above authorities must be exercised as a balancing act. This principle was further articulated in Chiweza v Mangwana (supra) by DUBE J (as she then was) at page 3 as follows; - “The approach to be taken in an application for condonation was discussed in United Plant Hire v Hills & OR’s 1976 (1) SA 717 (A) @ 720 F – A as follows; “It is well settled that in considering applications for condonation the court has a discretion to be exercised judicially upon considering all the facts and that in essence it is a question of fairness to both sides. In this enquiry relevant considerations may include the degree of non-compliance with the rules, the explanation thereof, prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other.” ………. In Grootboom v National Prosecuting Authority and Anor (2013)34 ILJ 282 (LAC) the court dealt with the approach to be adopted where some factors are not satisfied and remarked as follows, “…. where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” [ Underlined for emphasis] [14] Against these considerations, I proceed to examine the application before me. Ahead of all else, I draw several parallels between this mater and the Deweras Farm authorities 4. In the first Deweras Farm decision, this court observed at page 50 that; - “The explanation for the default remains the same; namely, that the applicants relied on Zimbank ‘s expertise in calculating the indebtedness and the decision not to contest the claim was made in the honest and reasonable belief that the bank had correctly calculated the amount outstanding and interest thereon. Their endeavours throughout were directed solely to making arrangements to pay the indebtedness rather than vexatiously, as they then thought it, to challenge it.” [15] This decision to refrain from taking action led McNALLY JA to issue the following famous dictum on appeal at page 369; - “I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I: ―More specifically, in the context of a default judgment, wilful ‘connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.” [Underlined for emphasis] [16] In that regard, herein the cause of default was deliberate inaction by the applicants after they were served with summons. That conscious act of allowing the dies within which to defend the matter constitutes in my view, a fatal error on the part of the applicants. The reasonableness of any explanation for delay is founded on the trigger of such delay. [17] The timeline also shows that applicants had ample opportunity to minimise their peril, even after missing the first deadline to file their plea and enter appearance per r 12. They also failed to file their application for rescission within 10 days of service of the default judgment (albeit via the writ). [18] In making these observations, I take into account the stature of Mr. Chikumba as a businessman. One whose business acumen and general intellect shine through the numerous emails which he issued and now form part of the papers before me. I do not therefore consider the explanation tendered by Mr. Chikumba to be reasonable. [19] Additionally, his sojourn to the United Kingdom on 15 March 2022 ought to have presented no impediment. He was, after all, able to, and did communicate extensively via email with both Redan and its legal practitioners of record. Summons commencing action in were issued on 15 May 2023. Mr Chikumba addressed a detailed email 7 days later on 22 May 2023 admitting liability and making undertakings to settle the indebtedness. [20] Redan now clings on to this communication as clear evidence of the lack of a plausible defence to the claim. That aside, there was a further deliberate abstention to take immediate action after the applicants became aware on 28 September 2023 that judgment had been taken against them on 28 June 2023. Firstly, Mr. Chikumba elected to brief his lawyers to engage Redan`s legal practitioners and plead for clemency rather than approach the court. [21] He only managed to brief his legal practitioners on 15 October 2023. The delay of 17 days (under the ominous threat of execution) was occasioned, according to Mr. Chikumba, by the need to gather his papers in readiness to filly brief his lawyers. I find that explanation unconvincing. [22] Thereafter, further precious time was expended in negotiations with Redan`s attorneys. In doing so, he extracted no explicit undertaking that Redan would abandon or hold litigation in abeyance. The main quest, under those engagements, was to carry out some reconciliations. I recognise that the parties had already indulged in such exercise at length even prior to the issuance of summons. [23] Further, Mr Chikumba sought to impute blame on Redan`s legal practitioners for the non-consummation of a proposal to settle the matter via sale of his property to offset the debt. The papers suggest a different story. Namely that Mr. Chikumba did not follow through, as he in fact was obliged to, so that his proposals yielded a solid settlement. Obviously, this point being made against the obvious fact that the applicants were acceding to the claim and that the engagement occurred prior to issuance of summons. [24] Thirdly, Mr Chikumba tenders a rather unconvincing explanation for a further delay in taking action even after realising on 23 November 2023, that Redan`s legal practitioners were “taking him for a ride”. He only filed the present application on 29 January 2024. The delay on the part of the applicants was inordinate. They took 4 months to carry out an act that ought to have been done in 10 days. I am neither persuaded by the reason nor explanation tendered for the delay. [25] I proceed to examine the applicants` prospects of success which were defined as follows in Essop v S, [2016] ZASCA 114 that: “What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.” [Underlined for emphasis] [26] The applicants anchor the essence of their defence on a faulty reconciliation of the fuel stocks and values. Firstly, I must reiterate, as noted above, that the parties had expended considerable effort toward reconciling the figures and stocks. They were unable to agree. Secondly, I must take into account the fact that the underlying dispute relates to a breach of contract. And so to the contractual clauses we must go to ascertain the parties` respective rights and obligations under the contract. It is against these clauses that the issues of contractual breach or compliance can then be established. [27] Redan invoked the conclusive proof certificate issued by its Account Manager Brendon Tembo on 7 December 2022.It was filed of record and titled- “Certificate of Outstanding Amounts in Terms of Clause 8.4 of the Fuel Supply and Distribution Agreement Between Botline Investments (Private) Limited and Redan Coupon (Private)”. [28] This attestation fixed the quantity of fuel due by Botline as 95,001 litres of diesel valued at US$ 161,586,70. Redan`s reference (in paragraph 61 of its opposing affidavit) to this certificate as a right exercised under clause 8.4 of the fuel supply agreement was not confronted by an answer from the applicants in their answering affidavit. [29] I hold this aspect of the matter as quite important. A party seeking the rescission of a default judgment taken against it on the basis of a claim for breach of contract should ordinarily revert to the same contractual terms in order to demonstrate prospects of success. Herein, no such attempt has been made. No specific reference to the fuel supply contractual terms was done. Neither in the applicants` founding and answering papers, nor in their written and oral submissions. DISPOSITION [30] I am unpersuaded by the contention that the applicants enjoy prospects of success on the merits. The application must fail. I am further fortified to exercise my discretion in that regard on the following grounds. [31] In applications of this nature, the court must consider the interest of the parties` interests in addition to general administration of justice. The Commercial Court Rules are a practical implementation of the principle that there must be finality to litigation. They exhort parties to exercise diligence in the defence and prosecution of their disputes. [32] The rules of court communicate a consistent message in support of this aspect. In as far as judgments in default are concerned, plaintiffs are obliged to notify defendants of judgments obtained in default within 48 hours. The defendants in turn must them move any application to set aside the default judgment within 10 days. [33] The rules are therefore designed to ensure that where there is good and sufficient cause, the judgments are quickly vacated so that matters are heard and disposed of on the merits. Herein a party who suffered performance default by a contractual partner 3 years ago is still battling to put a closure to that business mishap. Such a situation is undesirable. [34] The application fails, but not with the award of punitive costs prayed for by Redan. There is no extraordinary cause, based on the established principles- to justify such a measure. Accordingly, it is ordered that; - The application for condonation of late filing of an application for rescission of judgment be and is hereby dismissed with costs. Maseko Law Chambers-applicants` legal practitioners Chimuka Mafunga Commercial Lawyers-respondent`s legal practitioners. [CHILIMBE_____31/03/25] 1 The High Court (Commercial Division) Rules SI 123/20. 2 High Court Rules SI 202 OF 2021 3 Kombayi v Berkout 1988 (1) ZLR 53; Stockil v Griffiths 1992 (1) ZLR 172(S); Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S); Maheya v Independent African Church SC 58-07; Friendship v Cargo Carriers Limited & Anor SC 1-13; Chiweza & Anor v Mangwana & Ors HH 186-17 and other authorities. 4 Deweras Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1997 (2) ZLR 47(H); Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S) 4 HH 229-25 HCHC48/24 4 HH 229-25 HCHC48/24 BOTLINE INVESTMENTS (PVT) LTD And JOHN CHIKUMBA Versus REDAN COUPON (PVT) LTD HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 20 March and 8 April 2025 Application for condonation W.P. Mandinde -for the applicants W. Musikadi -for the respondent CHILIMBE J INTRODUCTION [1] On 28 June 2022, the applicants were ordered, under a default judgment of this court, to deliver to respondent 95,001 litres of diesel or pay to it the sum of US$ 161,586,70. The applicants seek to have this judgment set aside. They apply for condonation for failure to apply for such rescission within 10 days of service of the judgment as required by r 15 of the Commercial Court Rules1. [2] The application was opposed with quite robustly. I may also state that the applicants inadvertently attached to their founding papers, a duplicate application for condonation in place of a draft application for rescission of judgment and attendant bundle. I expunged, on application, the additional papers and permitted the applicants to file their draft application for rescission of the default judgment. [3] This seemingly innocuous remedial process however generated some rather heated disagreements between the parties. The quarrels related to matters that I consider non-germane to the determination of the herein application. I will thus proceed to dispose of this matter on the basis of arguments, issues and papers filed in the main application. [4] The background to the dispute is that first applicant (“Botline”), operated at the material time, a fuel depot on leased premises known as 7 Simon Mazorodze Road in Harare. Redan and Botline concluded a Fuel Supply and Distribution Agreement (“the fuel supply agreement”) on 16 January 2022 in terms of which Redan supplied Botline with bulk fuel for resale. [5] The second applicant, (“Mr Chikumba”) is described in the papers as a director and shareholder of Botline. It is clear from the papers that Mr Chikumba is the key man in Botline. He was sued in his capacity as a surety to the obligations of Botline under the bulk fuel supply agreement. The nature of the contract and status of Mr Chikumba constitute a background relevant to the consideration of the explanations for default discussed hereunder. THE PRELIMINARY POINT OF MOOTNESS [6] Mr Musikadi for Redan moved a preliminary point on mootness on the basis that execution had since taken place. Mr. Mandinde (for the applicants) in response submitted that the judgment debt which stood as of the hearing date at about US$150,000 had not been fully liquidated by the proceeds. The process only yielded about US$75,000 about 50% of the amount outstanding. As such, the applicants still faced the risk of further action. [7] Counsel cited the Supreme Court decision of MDC & 2 Ors v Mashavira & 3 Ors SC 56-20 where PATEL JA (as he then was) outlined the two principal considerations that ought to guide a court confronted with the question of mootness. The learned judge of appeal held at page 33 that; - “The principles governing mootness are relatively well established. The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable – Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19, at p. 7. To put it differently, the controversy must be existing or live and not purely hypothetical – Koko v Eskom Holdings Soc Limited [2018] ZALCJHB 76, at para 21; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC), at para 21 (footnote 18). [Underlined for emphasis] The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case where it is in the interests of justice to do so – Khupe’s case, supra, at p.13; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at 525A-B. This may arise where the court’s determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved – Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), at para 11. In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.” [8] I am satisfied, applying the first ground in MDC v Mashavira to the present circumstances, that the controversy is still alive between the parties. In any event, the applicants seek an opportunity to offset the default judgment rather than just a cessation of execution. (See also the circumstances emanating from paragraph [5] of Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 15-24.) The preliminary objection is therefore disallowed. SERVICE OF THE DEFAULT JUDGMENT [9] Whilst a plaintiff need not notify the defendant of its application for default judgment, it must afterward serve the judgment concerned on the said defendant. The High Court Rules2 as an example prescribe by r 25 (2) that such service must be effected “...as soon as possible”. Rule 14 (2) of the Commercial Court Rules, which is applicable to the present proceedings, sets the period at 48 hours after obtaining judgment. [10] The need to serve defendants with a default judgment was reiterated by this court per KWENDA J in Gilad Shabtai & Anor v Ofer Sivan & 3 Ors HH 95-23. I hold the view that this obligation still sustains, notwithstanding the fact that the IECMS platform automatically posts all developments on the case portal. Herein, the applicants did raise a complaint in paragraphs 4.4 and 7.2 of the founding affidavit, that the default judgment was never served on them. [11] Redan did not specifically dispute this averment. Nor did Mr. Mandinde seem to further pursue it. Not that it would have offset the conclusion of this matter though. But I do note that the issue remained open ended. Given that it is not dispositive of the dispute, I will leave the matter for argument on another day. I take the view that service of the default judgment upon the defendant is (a) a direction in the rules that might be oft neglected and (b) forms part, as further discussed below, of the court`s quest for finality to litigation. THE APPLICATION FOR CONDONATION [12] Counsel from each side correctly identified the principles applicable to the consideration of an application for condonation a nd the relevant authorities3. These were distilled in Read v Gardiner & Anor SC 70-19 at page 4 as follows; - “The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following: The extent of the delay involved or non-compliance in question. The reasonableness of the explanation for the delay or non-compliance. The prospects of success should the application be granted. The possible prejudice to the other party. The need for finality in litigation. The importance of the case. The convenience of the court. The avoidance of unnecessary delays in the administration of justice. See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC 58/07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC 1/13. As was observed in the latter case, the factors listed above are not exhaustive. [13] The court`s discretionary latitude set out in the above authorities must be exercised as a balancing act. This principle was further articulated in Chiweza v Mangwana (supra) by DUBE J (as she then was) at page 3 as follows; - “The approach to be taken in an application for condonation was discussed in United Plant Hire v Hills & OR’s 1976 (1) SA 717 (A) @ 720 F – A as follows; “It is well settled that in considering applications for condonation the court has a discretion to be exercised judicially upon considering all the facts and that in essence it is a question of fairness to both sides. In this enquiry relevant considerations may include the degree of non-compliance with the rules, the explanation thereof, prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other.” ………. In Grootboom v National Prosecuting Authority and Anor (2013)34 ILJ 282 (LAC) the court dealt with the approach to be adopted where some factors are not satisfied and remarked as follows, “…. where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” [ Underlined for emphasis] [14] Against these considerations, I proceed to examine the application before me. Ahead of all else, I draw several parallels between this mater and the Deweras Farm authorities 4. In the first Deweras Farm decision, this court observed at page 50 that; - “The explanation for the default remains the same; namely, that the applicants relied on Zimbank ‘s expertise in calculating the indebtedness and the decision not to contest the claim was made in the honest and reasonable belief that the bank had correctly calculated the amount outstanding and interest thereon. Their endeavours throughout were directed solely to making arrangements to pay the indebtedness rather than vexatiously, as they then thought it, to challenge it.” [15] This decision to refrain from taking action led McNALLY JA to issue the following famous dictum on appeal at page 369; - “I favour the definition of wilful default offered by King J in Maujean t/a Audio Video Agencies v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C) at 803H-I: ―More specifically, in the context of a default judgment, wilful ‘connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.” [Underlined for emphasis] [16] In that regard, herein the cause of default was deliberate inaction by the applicants after they were served with summons. That conscious act of allowing the dies within which to defend the matter constitutes in my view, a fatal error on the part of the applicants. The reasonableness of any explanation for delay is founded on the trigger of such delay. [17] The timeline also shows that applicants had ample opportunity to minimise their peril, even after missing the first deadline to file their plea and enter appearance per r 12. They also failed to file their application for rescission within 10 days of service of the default judgment (albeit via the writ). [18] In making these observations, I take into account the stature of Mr. Chikumba as a businessman. One whose business acumen and general intellect shine through the numerous emails which he issued and now form part of the papers before me. I do not therefore consider the explanation tendered by Mr. Chikumba to be reasonable. [19] Additionally, his sojourn to the United Kingdom on 15 March 2022 ought to have presented no impediment. He was, after all, able to, and did communicate extensively via email with both Redan and its legal practitioners of record. Summons commencing action in were issued on 15 May 2023. Mr Chikumba addressed a detailed email 7 days later on 22 May 2023 admitting liability and making undertakings to settle the indebtedness. [20] Redan now clings on to this communication as clear evidence of the lack of a plausible defence to the claim. That aside, there was a further deliberate abstention to take immediate action after the applicants became aware on 28 September 2023 that judgment had been taken against them on 28 June 2023. Firstly, Mr. Chikumba elected to brief his lawyers to engage Redan`s legal practitioners and plead for clemency rather than approach the court. [21] He only managed to brief his legal practitioners on 15 October 2023. The delay of 17 days (under the ominous threat of execution) was occasioned, according to Mr. Chikumba, by the need to gather his papers in readiness to filly brief his lawyers. I find that explanation unconvincing. [22] Thereafter, further precious time was expended in negotiations with Redan`s attorneys. In doing so, he extracted no explicit undertaking that Redan would abandon or hold litigation in abeyance. The main quest, under those engagements, was to carry out some reconciliations. I recognise that the parties had already indulged in such exercise at length even prior to the issuance of summons. [23] Further, Mr Chikumba sought to impute blame on Redan`s legal practitioners for the non-consummation of a proposal to settle the matter via sale of his property to offset the debt. The papers suggest a different story. Namely that Mr. Chikumba did not follow through, as he in fact was obliged to, so that his proposals yielded a solid settlement. Obviously, this point being made against the obvious fact that the applicants were acceding to the claim and that the engagement occurred prior to issuance of summons. [24] Thirdly, Mr Chikumba tenders a rather unconvincing explanation for a further delay in taking action even after realising on 23 November 2023, that Redan`s legal practitioners were “taking him for a ride”. He only filed the present application on 29 January 2024. The delay on the part of the applicants was inordinate. They took 4 months to carry out an act that ought to have been done in 10 days. I am neither persuaded by the reason nor explanation tendered for the delay. [25] I proceed to examine the applicants` prospects of success which were defined as follows in Essop v S, [2016] ZASCA 114 that: “What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.” [Underlined for emphasis] [26] The applicants anchor the essence of their defence on a faulty reconciliation of the fuel stocks and values. Firstly, I must reiterate, as noted above, that the parties had expended considerable effort toward reconciling the figures and stocks. They were unable to agree. Secondly, I must take into account the fact that the underlying dispute relates to a breach of contract. And so to the contractual clauses we must go to ascertain the parties` respective rights and obligations under the contract. It is against these clauses that the issues of contractual breach or compliance can then be established. [27] Redan invoked the conclusive proof certificate issued by its Account Manager Brendon Tembo on 7 December 2022.It was filed of record and titled- “Certificate of Outstanding Amounts in Terms of Clause 8.4 of the Fuel Supply and Distribution Agreement Between Botline Investments (Private) Limited and Redan Coupon (Private)”. [28] This attestation fixed the quantity of fuel due by Botline as 95,001 litres of diesel valued at US$ 161,586,70. Redan`s reference (in paragraph 61 of its opposing affidavit) to this certificate as a right exercised under clause 8.4 of the fuel supply agreement was not confronted by an answer from the applicants in their answering affidavit. [29] I hold this aspect of the matter as quite important. A party seeking the rescission of a default judgment taken against it on the basis of a claim for breach of contract should ordinarily revert to the same contractual terms in order to demonstrate prospects of success. Herein, no such attempt has been made. No specific reference to the fuel supply contractual terms was done. Neither in the applicants` founding and answering papers, nor in their written and oral submissions. DISPOSITION [30] I am unpersuaded by the contention that the applicants enjoy prospects of success on the merits. The application must fail. I am further fortified to exercise my discretion in that regard on the following grounds. [31] In applications of this nature, the court must consider the interest of the parties` interests in addition to general administration of justice. The Commercial Court Rules are a practical implementation of the principle that there must be finality to litigation. They exhort parties to exercise diligence in the defence and prosecution of their disputes. [32] The rules of court communicate a consistent message in support of this aspect. In as far as judgments in default are concerned, plaintiffs are obliged to notify defendants of judgments obtained in default within 48 hours. The defendants in turn must them move any application to set aside the default judgment within 10 days. [33] The rules are therefore designed to ensure that where there is good and sufficient cause, the judgments are quickly vacated so that matters are heard and disposed of on the merits. Herein a party who suffered performance default by a contractual partner 3 years ago is still battling to put a closure to that business mishap. Such a situation is undesirable. [34] The application fails, but not with the award of punitive costs prayed for by Redan. There is no extraordinary cause, based on the established principles- to justify such a measure. Accordingly, it is ordered that; - The application for condonation of late filing of an application for rescission of judgment be and is hereby dismissed with costs. Maseko Law Chambers-applicants` legal practitioners Chimuka Mafunga Commercial Lawyers-respondent`s legal practitioners. [CHILIMBE_____31/03/25] 1 The High Court (Commercial Division) Rules SI 123/20. 1 The High Court (Commercial Division) Rules SI 123/20. 2 High Court Rules SI 202 OF 2021 2 High Court Rules SI 202 OF 2021 3 Kombayi v Berkout 1988 (1) ZLR 53; Stockil v Griffiths 1992 (1) ZLR 172(S); Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S); Maheya v Independent African Church SC 58-07; Friendship v Cargo Carriers Limited & Anor SC 1-13; Chiweza & Anor v Mangwana & Ors HH 186-17 and other authorities. 3 Kombayi v Berkout 1988 (1) ZLR 53; Stockil v Griffiths 1992 (1) ZLR 172(S); Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S); Maheya v Independent African Church SC 58-07; Friendship v Cargo Carriers Limited & Anor SC 1-13; Chiweza & Anor v Mangwana & Ors HH 186-17 and other authorities. 4 Deweras Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1997 (2) ZLR 47(H); Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S) 4 Deweras Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1997 (2) ZLR 47(H); Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S)