Belgravia Sports Club v ICG Global (Pvt) Ltd

### Preamble
1
HH 673/25
HCHC 83/25
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BELGRAVIA SPORTS CLUB

versus

ICG GLOBAL (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

V. NDLOVU J

HARARE; 19 June & 28 October 2025

Application for rescission

Mr O. Kadare, for the applicant

Mr A. Mufari, for the respondent

V NDLOVU J: This is an opposed application for rescission of a default judgment which was granted in Case No. HCHC 52/25 on 3 February 2025.

BACKGROUND

The dispute between the parties arises from a contract entered into by and between them for the hire of club grounds for rugby training sessions on specified days and times.

On 31 January 2025, the respondent filed an urgent chamber application against the applicant. The application was served via email to the applicant’s manager. The manager saw the email on the morning of 3 February 2025. On the same day, 3 February 2025, the physical service of the application was done at 13.00 hours on the applicant’s manager.

The applicant submitted that they did not get an opportunity to instruct their lawyers to file a notice of opposition.

RELIEF SOUGHT

The applicant prayed for the following order.

The default judgment granted by this honourable court on 3 February 2025 be and is hereby rescinded.

Applicant shall file its opposing papers to the respondent’s claim under case NO 52/25 within (10) days of the service of this order.

Respondent shall pay the costs of this suit.

PRELIMINARY POINTS

The respondent raised three preliminary points as follows;

The applicant is before the court with dirty hands and cannot be given audience.

The respondent contends that, after the court order was issued, the applicant refused to comply with it. The respondent has not attempted to enforce the court order by commencing contempt proceedings or by enlisting the services of the Sheriff of the High Court.  The respondent has not attached the police report for the report made and its outcome. Therefore, the dirty has approach still needs to be proved. This preliminary point is rejected and dismissed.

The defective founding affidavit.

The respondent also contended that the founding affidavit, which bears a computer-generated date, is defective.  In my view, the form in which a date on an affidavit is written is generally immaterial. It can only be material in a few exceptional cases. I make this conclusion because, in my view, the Affidavit communicator to the world is the Commissioner of Oaths, who is an officer of the court. It is he or she who tells the world when the oaths were taken or administered, and where they were administered. He has to be trusted unless the country is alleged and proven. That a deponent prints the date away from the commissioner and earlier to going to the commissioner is neither here nor there because a statement only becomes an affidavit upon it being sworn to. Without evidence-led proof proving the contrary to what the commissioner of oaths says, this point cannot stand and is duly dismissed.

The absence of authorisation.

This position was settled by the Supreme Court in Elkana Dube v Premier Medical Aid Society SC 73/19. In this case, there is an affidavit by Fortune Dandira, the applicant’s manager, which confirms that the deponent has the mandate to file the founding affidavit. That settles the issue. The point in limine is dismissed.

THE MERITS

ISSUES FOR DETERMINATION

WAS THE DEFAULT WILFUL?

The applicant submitted that the application was served on its manager by email, and that she only accessed her email on 3 February 2025, which was the day the physical application was served. The manager was not aware of the proceedings against the applicant. The manager did not know what to do with the papers and their urgency. The applicant submitted that there was insufficient time to prepare the notice of opposition before the hearing. The applicant further submitted that it would not have chosen to default, even with awareness of what was required and the risk of default.

THE LAW

Rule 27 of the High Court Rules, 2021 applies in this matter. It provides in sub-rule two that if the court is satisfied that there is good and sufficient cause to set aside a default judgment, the court may set aside the judgment concerned.

The issue of willful default has been discussed in various authorities. Stockil v Griffiths 1992(1) ZLR 172 SC, GUBBAY CJ, [as he then was] outlined the factors to be considered in determining whether an application for rescission of judgment should be granted or not, and they are:

The reasonableness of the applicant’s reason for the default.

The bona fides of the application to rescind the default judgment

The bona fides of the defense on merits of the case with some prospects of success.

These factors should not be considered individually but in conjunction with one another.

THE EXPLANATION

The urgent application was electronically served on Friday 31 January 2025 on the applicant’s manager.  The service was proper. On 3 February 2025 the physical document was served on the applicant. Later that day [on a Monday], the application was heard and the Default Judgment granted.

The applicant submitted that they did not get an opportunity to instruct their lawyers to file a notice of opposition. This explanation cannot be faulted. It must be appreciated that people are not automated to respond to litigation instantaneously. One cannot be expected to be served in the morning, noon, to appear in Court in the afternoon.

THE BONA FIDES OF THE DEFENCE.

The application for rescission of a default judgment must be genuine and honest. It must not be a way of delaying the finalisation of a matter. The applicant relied on the case of Dr Mangezi  vs Dr Kasu (132 of 2024) ZWHHC132 (27 March 2024) where MUREMBA J, stated that

“… bona fides of the application to rescind a default judgment refers to the genuineness or good faith behind the request to reverse the default judgment. …... it examines whether there are legitimate grounds for challenging the default judgment.”

A reading of the applicant’s founding affidavit shows details of a tumultuous relationship between the parties. It shows that a judicial process must moderate the relationship. The manner in which the service and hearing were spaced cannot assist in finding a lack of bona fides in this application. After all, everyone deserves their day in Court, regardless of the quality of their claim or defence. Accordingly, the applicant succeeds in the second requirement.

PROSPECTS OF SUCCESS ON MERITS

The respondent argued that the applicant made no effort to address the merits of the application in his founding affidavit. In Kaskay Properties (Pvt) Ltd v Min of Lands Rural Resettlement and others HH 762/2018, MANGOTA J dismissed the application on the basis that the applicant had failed to address potential defences in their founding affidavit adequately. Prospects of success and potential defences should remain that, and not be erroneously accorded the status of guaranteed success or full defences. In my view, every dispute between man and man should be subjected to litigation, and the litigation process must be free of underhand manoeuvres by one litigant over the other. Prospects of success must equate to the existence of an arguable case as long as it is not doomed to fail. The matter is said to have been taken to the Harare City Council to have an inspector inspect and possibly condemn the construction being carried out by the respondent. Accordingly, it appears to me that there is a prospect of success for the applicant’s case. Whether it will succeed ultimately is not the consideration.

DISPOSITION

I find that there is a good and sufficient cause to grant the rescission of the default judgment. Accordingly, the application for the rescission of judgment is granted, and I order as follows.

ORDER

The default judgement granted by this Honourable Court on the 3rd of February 2025 be and is hereby rescinded.

Applicant shall file its opposing papers to Respondent’s claim under case No HCHC 52/25 within Ten (10) days of the service of this Order.

Respondents shall pay costs of suit.

V. NDLOVU J