NYAMHUKA & ANOR v MAPINGURE 2014 (2) ZLR 229 (H)

Flynote

Practice and procedure — judgment — default judgment — rescission of — default due to faulty c service — judgment void, irrespective of merits

Headnote

At the core of its nature, a default judgment is granted on the basis of failure to plead or failure to defend. It is a result of non-observance of procedural considerations. The facts of the matter will not have been properly contested in a default judgment. Simply put, it is a judgment which is not on the merits. Consequently, it operates on shaky ground should the defendant seek to challenge it on the basis of it having been improperly obtained, as the case may ultimately have to be heard on its full merits.

Among the reasons that can form the basis of challenging a default judgment is that it has been improperly obtained, because service in terms of the rules was faulty. Proof of proper service is obviously necessary in averting such a claim. Also, if the reason for challenging the regularity of a default judgment is that it was improperly taken due to defective service, then such a judgment would ultimately be considered void in an application for its rescission and would, of necessity, be set aside. Its contents would be immaterial.