BEITBRIDGE RURAL DISTRICT COUNCIL v RUSSELL CONSTRUCTION CO (PVT) LTD 1998 (2) ZLR 190 (S)

Flynote

Practice and procedure — default judgment — rescission — grounds in which rescission may be granted — failure to enter appearance due to inactivity on part of defendant's legal practitioners — no reasonable explanation for such inactivity possible — practitioner's non-compliance with rules treated as non-compliance by defendant

Headnote

After failure by the appellant council to pay the respondent for construction work carried out, summons was issued against the council in September 1993, claiming the sum due plus interest. No appearance to defend was entered within the 10 day period and the council was automatically barred. At that stage, both parties were represented by the same firm of practitioners, who advised both to seek other practitioners. The council's new practitioners were briefed in January 1994, and purported to enter appearance to defend. They did not apply for removal of the bar. The respondent briefed its practitioners in June, and applied for default judgment in respect of the interest claimed, the capital having in the meantime been paid. Default judgment was granted, of which the council became aware when its property was attached. In August, the council applied for rescission of the default judgment. The application was refused by the High Court. On appeal:

Held, that in granting rescission the court normally considers (a) the applicant's explanation for his default; (b) the applicant's good faith; and (c) the bona fides of his defence on the merits as well as the prospects of success. In regard to (a), no explanation at all was advanced by the council for its failure to enter appearance to defend, nor did the council's legal practitioners give any explanation as to why, after they assumed agency, no application was made for the lifting of the bar. The failure by the practitioners to act was such that no reasonable explanation could have been given. Held, further, that though the fault was largely that of the council's legal practitioners, this did not assist it. Non-compliance with or a wilful disdain of the rules of court by a party's legal practitioner should be treated as non-compliance or a wilful disdain by the party himself.

Held, further, that on the facts there was no bona fide defence to the claim for the payment of interest.