Officer Commanding Police (Mashonaland Central Province) and Commissioner-General of Police v Jiayuan Investments (Pvt) Ltd and Sheriff of the High Court (N.O)

### Preamble
1
HH 722 - 25
HCH 3443/25
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OFFICER COMMANDING POLICE (MASHONALAND CENTRAL PROVINCE)

and

COMMISSIONER-GENERAL OF POLICE

versus

JIAYUAN INVESTMENTS (PVT) LTD

and

SHERIFF OF THE HIGH COURT (N.O)

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 12 November 2025

Opposed Application

F. Chimunoko, for the applicants

M. S. Nyanoka, for the 1st respondent

MAMBARA J:    This is an opposed application for the rescission of a default judgment granted by this Court on 8 July 2025 under case No. HCH 3222/25. The applicants, respectively the Officer Commanding Police (Mashonaland Central Province) and the Commissioner-General of Police, seek to have that default judgment set aside and the matter reheard on the merits. The first respondent, Jiayuan Investments (Pvt) Ltd, obtained the default judgment and opposes its rescission. The second respondent, the Sheriff of the High Court, is cited in his official capacity.

Factual Background

The backdrop to this matter is largely common cause. On 29 May 2025, the first respondent was convicted by a Magistrates’ Court at Bindura of contravening environmental regulations against unlawful alluvial mining. The magistrate imposed a fine and, importantly, made an order regarding certain mining equipment used by the first respondent. The hired equipment was ordered to be returned to its owners, while the unhired equipment belonging to the first respondent used in commission of the offence was forfeited to the State. The first respondent, maintaining that the equipment was its property and should be returned, wrote numerous letters to the police (the first applicant) demanding release of the equipment. No compliance was forthcoming. Instead, the police took the position that the equipment had been forfeited by the Magistrates’ order and thus could not be released.

Faced with this stalemate, the first respondent filed an urgent chamber application for a mandamus in this Court, Case No. HCH 3222/25, compelling the applicants to release the equipment. That application was set down for hearing on 8 July 2025. The applicants, however, did not attend the hearing or file opposing papers in time, and Chikowero J granted the mandamus in default, ordering the applicants to release the equipment within 48 hours and authorizing the Sheriff to seize the equipment in the event of non-compliance. It is common cause that the urgent application was served on the applicants on 4 July 2025, just two court days before the hearing. The responsible police legal officer only received the file on 7 July and immediately attempted to engage counsel and file opposition. Due to administrative hurdles with the new electronic filing system (IECMS), counsel’s request to be linked to the case was not completed in time, and by the time the link was approved on 8 July, the matter had already been heard and the default order granted. The applicants thus found themselves bound by an order to release equipment which, in their view, was lawfully forfeited to the State.

On 9 July 2025, upon learning of the default judgment, the applicants moved with haste to prepare the present rescission application. It was filed on 15 July 2025, a mere week after the default order – a point which underscores the urgency with which the applicants acted once they became aware of the judgment. Meanwhile, the first respondent’s lawyers wrote to the applicants demanding compliance with the order, and the Sheriff attempted to execute a writ of delivery against the equipment. The applicants, however, did not comply; indeed, the Sheriff was denied entry to the police premises where the equipment is held. No stay of execution was sought by the applicants at that time. As a result, by the time this rescission application was heard, the applicants had been in open defiance of the extant court order for several weeks. This uncomfortable state of affairs gives rise to the preliminary issues raised by the first respondent, to which I now turn.

Preliminary Points in Limine

The first respondent took two points in limine: (1) the “dirty hands” doctrine, and (2) lack of locus standi on the part of the applicants. I shall deal with each in turn.

(1) Dirty Hands

The first respondent contends that the applicants are approaching the court with unclean hands, having wilfully disobeyed the very order they seek to rescind. It is argued that the applicants, by refusing to release the equipment and by blocking the Sheriff from executing the writ, are in contempt of this Court’s order in HCH 3222/25. Absent any application for stay of execution, their defiance has persisted, thus, so the argument goes, they should be denied audience until they purge their contempt. The first respondent invokes the time-honoured “dirty hands” doctrine, emphasizing that courts must protect their own integrity by refusing to hear a party in wilful disobedience of a court order. Indeed, Mutevedzi J in Richclover (Pvt) Ltd v Rambayi & Anor HH 269 - 24 explained the rationale of this principle eloquently: “The rationale of the [dirty hands] principle is the preservation of the integrity of the courts themselves. The court is an institution which must detest aiding and lending assistance to people who look at it contemptuously. If it does, it lowers itself to the same level as such litigants.”

There is no quarrel with the principle; it is sound law that a party in wilful contempt cannot expect to be heard as of right. The issue is one of application of that principle in the present circumstances. The applicants candidly admit that they have not complied with the default judgment. However, they explain that rather than flouting the court’s authority, they promptly invoked the court’s own processes to challenge that judgment. They maintain that their default was not wilful, and that they are actively seeking to rectify the situation through legal means.

Our courts have cautioned that the “dirty hands” doctrine, while important, is not a rigid talisman to shut the door of the court in every case of non-compliance. Each case must be assessed on its own facts, balancing the need to uphold court orders against the overarching imperative to do justice. Where a litigant’s disobedience is deliberate, persistent, and without excuse, the court will rightly withhold its aid. Conversely, where the non-compliance is intertwined with the very subject matter of the dispute and the litigant has moved expeditiously to remedy the situation, a court may entertain the matter so that the real issues can be ventilated. In Bauxim Logistics (Pvt) Ltd v Minister of Finance & Economic Dev HH 518 -23, for example, the court reiterated that the principle of finality or conclusiveness cannot be allowed to “wreak injustice” merely for the sake of technical compliance.

In casu, the applicants’ “contempt” consists of maintaining the status quo pending determination of this application. They ought to have sought a formal stay of execution; their failure to do so is regrettable. However, I am mindful that the order in question was granted in default and is the very order they seek to challenge. It would be a harsh justice to insist that they first obey an order which they contend was erroneously granted, effectively surrendering the very relief they pursue, before being heard. Our law recognizes that rescission of judgment exists to prevent injustice: a party with a bona fide defence should not be forever shut out due to a procedural mishap. In the circumstances of this case, I am inclined to exercise the court’s discretion to hear the applicants notwithstanding their non-compliance, subject of course to appropriate admonishment. They have shown respect for the court by promptly submitting themselves to its jurisdiction through this application, rather than simply ignoring the order indefinitely. This distinguishes them from litigants who thumb their nose at the courts.

I therefore conclude that the dirty hands argument cannot prevail in this instance. The court’s integrity is indeed sacred, but it is best vindicated by a just resolution of the dispute on the merits rather than a peremptory dismissal on a technical contempt. The applicants are urged, however, to scrupulously observe proper procedure, such as seeking stays of execution in the future to avoid placing themselves in such a perilous position. The preliminary point on “dirty hands” is accordingly dismissed.

(2) Locus Standi

The first respondent’s second preliminary objection is that the applicants lack locus standi in the main matter (the mandamus) and hence in the rescission application. It was argued that the police have no direct and substantial interest in the equipment at issue, since the machinery “was never the applicants’ to begin with”. The first respondent contends that because the equipment belongs to it, an order compelling its release does not prejudice any legal right or interest of the police – in other words, the police have no leg to stand on in contesting the return of someone else’s property.

This argument is misconceived both in fact and in law. In law, the test for locus standi is whether a party has a direct and substantial interest in the subject matter of the dispute. As Malaba JA (as he then was) observed in Zimbabwe Stock Exchange v ZIMRA SC 56/07, the interest must be one that is personal to the party and not too remote. Here, the applicants were the cited respondents in the mandamus application; the court order was directed against them, requiring them to take specific action (release the equipment) and effectively negating their claim that the equipment was forfeited to the State. Clearly, the applicants have a direct stake in whether that order stands or is set aside. The very fact that the first respondent chose to sue these applicants demonstrates that it regarded them as having a sufficient interest – one cannot in the same breath drag a party to court to coerce certain conduct and then deny that the party has standing to defend itself.

Furthermore, on the facts, the applicants assert a legal entitlement to retain the equipment by virtue of a forfeiture order made in criminal proceedings. Whether that assertion is ultimately correct on the merits is not the question at this stage; what matters is that the applicants claim a right or lawful authority to hold the equipment, which the first respondent disputes. That is a classic justiciable controversy. If the applicants are right, then forcing them to release the equipment would violate the law since forfeited assets vest in the State. If they are wrong, that will be determined in the main case – but either way, they unquestionably have standing to litigate the issue.

The first respondent’s reliance on locus standi cases like Development Studio Africa (Pvt) Ltd v Paza Buster (Pvt) Ltd SC 54/24 and Museredza & Ors v Minister of Agriculture & Ors CCZ 1/22 (which outline the need for a direct and substantial interest) does not advance its cause. Applying those principles here leads to the inexorable conclusion that the applicants are properly before the court. Accordingly, the locus standi point is without merit and is also dismissed.

After an exchange between the court and the respondent’s counsel over the above issues and legal principles, the first respondent abandoned the preliminary point.

For completeness, the first respondent had also raised a technical point regarding the authority of the deponent to the applicants’ affidavits. This was not argued at the hearing and I take it that it was also abandoned. Having cleared the preliminary hurdles, I turn now to the substance of the rescission application.

Legal Principles on Rescission of Default Judgment

It is trite that a default judgment is not set aside merely for the asking. The applicant must show “good and sufficient cause” for the court to exercise its discretion in favour of rescission. The requirements for rescinding a default judgment have been articulated in many authorities, and there is broad consensus on the key factors. Often cited is the classic case of Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O), where Brink J outlined three fundamental considerations:

the defendant must provide a reasonable explanation for his default. The default should not be wilful or due to gross negligence.

the application for rescission must be bona fide and not merely a stratagem to delay or harass; and,

the defendant must show a bona fide defence on the merits, carrying some prospect of success if the case is heard.

This tripartite test has been adopted and applied in Zimbabwe over the years. In Stockil v Griffiths 1992 (1) ZLR 172 (S), Gubbay CJ restated that the court should consider:

the reasonableness of the explanation for default,

the bona fides of the application, and,

the bona fides of the defence on the merits, including whether the defence prima facie carries some prospect of success.

More recently, in Mapfumo v Mapfumo & Ors HH 17-24, Muchawa J affirmed that these factors remain the correct approach under our current rules.

The Supreme Court has likewise emphasized these requirements in the context of various procedural relief. For example, in Vigour Fuyana v Moyo SC 54-06 (though dealing with condonation for late appeal, the principles are analogous), Chidyausiku CJ listed the “basic requirements” as:

“a reasonable explanation for the failure [to act timeously];

some prospects of success on the merits; and,

the bona fides of the application.”

The thread running through all these authorities is that the court’s discretion to set aside a judgment must be exercised judicially, balancing the finality of litigation against the interests of justice and fairness to both sides. As the oft-cited maxim goes, the law favours the resolution of disputes on their merits rather than by default.

With these principles in mind, I proceed to assess whether the applicants have met the criteria for rescission in this case.

Analysis of the Rescission Application

The pertinent questions are:

Was the applicants’ default wilful or grossly negligent, or is there a reasonable explanation for it?

Is the rescission application made bona fide and not as an abuse of process?

Do the applicants have a bona fide defence on the merits with a reasonable prospect of success if the default judgment is rescinded?

I will deal with each in turn, while also considering the submissions and authorities presented by both parties.

1. Explanation for the Default

It is common cause that the applicants did not file any opposing papers or heads of argument, nor did they appear at the hearing on 8 July 2025, leading to the default judgment. The applicants’ explanation, as set out in their founding and supporting affidavits, can be summarized as follows: They received the first respondent’s urgent application on Friday, 4 July 2025, just before the weekend, with the matter set down the next Tuesday (8 July). The file was handled by a police legal officer one Austen Makundidze who only got sight of it on Monday, 7 July. He immediately initiated efforts to prepare an opposition. Because the High Court had by then transitioned to the IECMS electronic filing system, the applicants’ legal practitioners had to be formally linked to the case electronically in order to file documents. A court request to that effect was made on 7 July. Unfortunately, the linking process was not completed by the registry in time. By the morning of 8 July, before the notice of opposition could be filed or the applicants’ lawyer could attend the hearing, the Judge proceeded to hear the matter and granted judgment in default. The applicants assert that their failure to attend was not wilful, but a result of misfortune and procedural hiccup. They had every intention to oppose the mandamus Indeed, they had already prepared opposing affidavits and were actively trying to engage with the case on IECMS, albeit unsuccessfully due to the tight timeframe.

In support of this narrative, the applicants point out that immediately upon learning of the default judgment on 9 July, they sprang into action to remedy the situation, filing this application within a week. They also highlight that the short notice given in the urgent application (four days, spanning a weekend) left scant room for bureaucratic coordination between the police and the Attorney-General’s office. By the time counsel was ready to appear, the matter had effectively been disposed of.

The first respondent, in opposition, casts doubt on this explanation. It suggests that the applicants were at best negligent in not acting sooner or seeking a postponement, and at worst were simply caught napping. It was argued that IECMS or not, a diligent litigant could have urgently approached the duty judge or taken steps to ensure their opposition was known. The first respondent urges the court to find the explanation lacking in detail and reasonableness, implying that the default could have been avoided with more vigilance.

Having considered the parties’ contentions, I find the applicants’ explanation to be reasonable and credible in the circumstances. There is no evidence that the applicants deliberately chose to ignore the proceedings. To the contrary, the contemporaneous actions (making an IECMS request on 7 July, contacting their lawyers, and then rushing to court on 15 July for rescission) corroborate that they were attempting to engage with the case, not evading it. The introduction of the electronic filing system has not been without hiccups in its initial phase, a fact of which this Court can take judicial notice. The timeline was undoubtedly tight: an effectively one-day window (Monday) to react, which happened to be squandered by an administrative delay. This falls into the category of an “excusable mishap” rather than gross negligence or wilful disregard. In Grant v Plumbers (Pty) Ltd (supra), it was observed that if a default is clearly not wilful or is due to some genuine misunderstanding or procedural snag, the court should lean towards granting relief. That principle is apposite here.

I accept that the applicants could perhaps have done more, for example, sending a lawyer to appear on 8 July to seek a postponement or alert the judge to the situation. However, hindsight is 20/20. One must put oneself in the shoes of the police legal officer scrambling on the eve of the hearing. By the time it became clear on 8 July that the IECMS linkage had not gone through, the matter was already before the Judge. It is conceivable that by the time anyone could have rushed to the courtroom, the order was already granted. On balance, I am not prepared to label the applicants’ conduct as grossly negligent. It was a mistake, and a costly one, but the explanation given is bona fide and does not smack of a deliberate flouting of the rules. There is therefore a satisfactory explanation for the default.

I also note the extremely prompt filing of the rescission application – within 3 working days of the judgment (and only 2 days after the applicants say they were served with the order). This alacrity is evidence of their genuine intent to rectify the default and have the case heard properly. A litigant who truly wishes to “buy time” or delay would hardly rush to court in this manner. This dovetails into the next factor: the bona fides of the application itself.

2. Bona Fides of the Application

The court must be satisfied that the rescission request is made in good faith and not simply as a tactical ruse to frustrate the successful party. On this score, the applicants aver that their application is aimed at bringing justice in the matter, not at stalling enforcement per se. They emphasize that they gained no advantage from their failure to appear. Indeed, they immediately faced an executory order and that they earnestly desire a fair opportunity to present their defence on the merits. They point to the substantive defence, discussed below, as evidence that there is a real controversy to be resolved, and that they are not just playing for time.

The first respondent, unsurprisingly, claims the opposite. It argues that the applicants, having lost by default, are simply trying to avoid complying with the judgment and to further delay the first respondent’s enjoyment of its property. The respondent notes that even after filing for rescission, the applicants did not voluntarily hand over the equipment or seek any compromise. Instead, they have clung to the equipment, suggesting that their true motive is to retain possession for as long as possible. In the first respondent’s view, the application is a stratagem to keep the first respondent at bay while the applicants hold onto machinery to which they have no right.

Assessing bona fides often entails reading between the lines and considering the overall conduct of the applicant. In this case, several factors persuade me that the application is genuine and not an abuse. First, as already mentioned, the speed with which relief was sought is inconsistent with a dilatory motive. An applicant bent on delay would typically drag its feet, perhaps file at the last moment of the prescribed time, and then seek indulgences. Here, the matter was treated with urgency by the applicants themselves. Second, the applicants have put forward a substantive defence to explain why they believe the default judgment should not stand. They did not come to court with a vague claim of “we have a defence somewhere”; they spelled it out. This indicates a desire to resolve the core dispute, not merely to thwart the respondent. Third, the applicants’ stance in maintaining custody of the equipment can be seen not simply as obstinance but as consistency with their legal position. They genuinely believe that releasing the equipment would contravene a valid forfeiture order. While the better course would have been to seek a stay, their insistence on holding the status quo ante does align with a bona fide belief in their defence, right or wrong as it may ultimately be.

I am fortified in this view by commentary from the bench deprecating the approach of parties who seek to “cling” to default judgments. In Kwaramba v Winshop Enterprises (Pvt) Ltd & Ors HH 788-15, Mathonsi J queried such behaviour in colourful terms: “Could it be that the applicant sees something in that default judgment which none of us can see?”. In that case (and others like Patience Mafu v Ncube HB 04-16), the learned judge expressed puzzlement that a litigant would fight tooth and nail to preserve a judgment entered in default rather than allow the matter to be decided on the merits – unless, perhaps, that party privately knows its case is so weak that only a default judgment can save it. Those words resonate here. The first respondent’s zeal in opposing rescission, if one adopts Mathonsi J’s logic, might prompt the question: What is it about the default order that the first respondent is so keen to “cling to,” instead of welcoming a chance to vindicate its rights through a full hearing? The first respondent obtained that order on an unopposed basis. If its case on the merits is truly as unassailable as it claims, one would expect it to be confident of success even if the judgment is rescinded. The court does not suggest that the first respondent is acting in bad faith by resisting rescission. It is entitled to try to keep its judgment. However, this perspective reinforces the view that the applicants’ pursuit of rescission is bona fide. They are not attempting to get something for nothing. They seek only the opportunity to have the dispute heard inter partes. That is a legitimate aim, and it aligns with the interests of justice.

I thus find no evidence of mala fides in the making of this application. It is a genuine attempt to correct a procedural unfairness and to ventilate a real dispute.

3. Prospects of Success on the Merits

The most heavily debated aspect of the application is whether the applicants have demonstrated a prima facie defence with prospects of success in the main case, should rescission be granted. This requires the court to assess the defence on a prima facie basis, not to determine the merits definitively, but to ensure that there is at least a triable issue. The bar is not set extraordinarily high. The applicant must aver facts which, if proved at trial or on the return date, would constitute a defence valid in law. The applicant need not deal fully with the merits of the case at this stage, nor prove the defence on a balance of probabilities it suffices to present a credible story which, if established, would entitle it to relief.

The applicants’ purported defence is that the first respondent’s mandamus order should never have been granted because the first respondent had no clear right to the equipment, the equipment having been lawfully forfeited to the State in the criminal proceedings. In simple terms, the applicants’ position is: “We cannot be compelled to return what is no longer, in law, the first respondent’s property.” They rely on the magistrate’s order and the provisions of the Environmental Management (Control of Alluvial Mining) Regulations 2024 (No. 3) under which that order was made. Specifically, section 3A(3)(b)(ii) of SI 188/2024 is cited, which apparently empowers a court to order forfeiture of equipment used in illegal alluvial mining. The magistrate, in convicting the first respondent, invoked this provision to forfeit the offending machinery to the State. Thus, say the applicants, the first respondent’s proper course was to challenge the forfeiture, for instance by appeal or review of the criminal judgment, if it believed the magistrate erred – not to approach the High Court for a mandamus as if the property were indisputably its own. The applicants contend that the first respondent “did not challenge the [forfeiture] order but went on to arm-twist the applicants to release the equipment against an order of forfeiture”. They further allege that the first respondent’s urgent application was procedurally improper and materially defective for non-joinder of “relevant parties”. Although not elaborated in great detail, one can infer the argument: if equipment was forfeited to the State, perhaps the Minister of Mines or the Environmental Management Agency (EMA) or some other authority holding an interest should have been cited in the mandamus application. The failure to do so might render the default judgment susceptible to challenge on the ground of non-joinder of a necessary party.

On the merits of the forfeiture issue, the applicants assert that they were simply complying with a binding court order from the Magistrates’ Court by refusing to hand over the equipment. They believe the law was on their side. In their view, the first respondent’s case is “hopeless” on the merits – to quote the supporting affidavit: “I have [a] belief that if the case is heard on the merits the first respondent cannot succeed.”.

The first respondent vigorously disputes the applicants’ defence. Its stance is that no valid forfeiture ever attached to the equipment in question. The first respondent maintains that the magistrate’s order was limited: the hired equipment was to be returned to its owners, and only certain items (perhaps none at all) were actually forfeited. According to the first respondent, the machinery at issue “has always belonged to the first respondent” and was never explicitly forfeited by the court a quo. The first respondent seems to argue that the police misinterpreted or over-extended the import of the magistrate’s judgment. In support, the first respondent points out that it is pursuing an appeal against the conviction and (presumably) any attendant orders, which would in any event suspend or put in question the finality of the forfeiture. Indeed, from the record it appears the first respondent noted an appeal to the High Court against the criminal conviction and sentence (including the rehabilitative order) in June 2025. The existence of that appeal arguably complicates the status of the equipment – a point that would need careful examination on the merits.

In sum, the first respondent asserts that it does have a clear right to the equipment, that the High Court per Chikowero J, correctly recognized that right by ordering its return, and that the applicants have no lawful excuse for retention. The mandamus, in the first respondent’s view, was both procedurally and substantively proper, and the applicants’ defence is illusory.

At this rescission stage, I am not required nor able to make definitive findings on these competing contentions. What I must decide is whether the applicants’ averred defence is bona fide and prima facie plausible, not false or fictitious, and not one that is obviously doomed to fail. Having weighed the outlined positions, I am satisfied that the applicants have passed this threshold. There is a real and substantive legal issue about the ownership and entitlement to the equipment, hinging on the effect of the magistrate’s forfeiture order and the propriety of the route the first respondent took to reclaim the equipment.

Notably, the first respondent’s own papers reveal that the magistrate did make some order adverse to the first respondent’s ownership of the machinery. The first respondent’s opposing affidavit concedes that the magistrate ordered the first respondent to rehabilitate the land and, after letters went unheeded, the first respondent resorted to the urgent mandamus precisely because the applicants were holding onto the equipment under claim of forfeiture. Thus, even on the first respondent’s version, the police did not invent the forfeiture out of thin air – there was at least colour to their assertion. Whether the forfeiture was correctly ordered (or properly confined to certain items) is a matter for the merits. But it is certainly a triable issue. If the applicants are correct that the law entitled them to hold the equipment because it was forfeited to the State, then the first respondent’s mandamus would indeed have been misguided. One cannot mandamus an official to act ultra vires or contrary to another court’s order. The applicants have also raised the issue of non-joinder, which is not frivolous. For example, if a third party had an interest, say the owner of the hired equipment, or the State as beneficiary of the forfeiture, failure to cite them could be fatal to the mandamus order.

Without expressing any view on the ultimate result, I observe that the applicants have placed sufficient material before the court to demonstrate a bona fide defence worthy of consideration. They attached a copy of the magistrate’s exhibit record indicating the forfeiture notation, and referenced the legal provision underpinning it. The first respondent, for its part, cited cases like Zinondo v Cafca Ltd SC 64/17 and Makoni v CBZ Bank Ltd HH 357-16 to stress the need for “good and sufficient cause”, but those go to the test, not disproof of the defence.

In the final analysis, this factor, prospects of success, is the most pivotal. I find that the applicants have demonstrated at least “some prospects” of success on the merits. Their case on the merits is arguable and not fanciful. Conversely, I would be remiss not to note that the first respondent also appears to have an arguable case. There are factual and legal complexities here including the effect of the noted appeal on the forfeiture, and the interpretation of the magistrate’s order that cannot be resolved on affidavit in a rescission application. They call for a proper ventilation in the main proceedings, with evidence and full argument. That is exactly why rescission is appropriate – to allow the court to investigate these matters thoroughly rather than let a one-sided narrative prevail by default. As Gubbay CJ observed in Stockil v Griffiths (supra), the requirement of a defence on the merits exists to ensure that rescission is not a futile exercise; but if a plausible defence is shown, “the justice of the case” will normally favour a restoration of the opposing party’s opportunity to be heard. Here, justice would be served by allowing the parties to go to battle on an even field.

Conclusion

All three elements for rescission have thus been satisfied by the applicants. They have a reasonable explanation for their default, their application is bona fide, and they have a prima facie defence with prospects of success in the main matter. In these circumstances, the court’s discretion ought to be exercised in favour of rescission. I am fortified in this conclusion by the general principle that disputes should, where possible, be resolved on the merits after both sides have been given a chance to present their case. The default judgment in question was not on the merits. It was a result of non-appearance. Granting rescission will cause some delay to the first respondent’s attainment of relief, but that is a necessary consequence of ensuring fairness. The first respondent, if ultimately in the right, will still have its day in court and can be compensated by costs or other orders if appropriate. There is minimal prejudice in allowing the matter to be heard properly, whereas refusing rescission would visit irreversible prejudice on the applicants by denying them any hearing at all. The principle of finality to litigation cannot be embraced when to do so would wreak injustice along the way. Finality is important, but not at the expense of justice.

Before I conclude, it is necessary to address the issue of costs. The applicants have achieved success in this application, and normally costs would follow the cause. The applicants in their draft order initially prayed for no order as to costs in the event of no opposition, but that if the application was opposed, the respondents, particularly the first respondent, should pay costs. The first respondent did oppose, strenuously. Having considered the parties’ conduct, I see no reason to depart from the general rule. The first respondent’s opposition, while not frivolous, sought to uphold a judgment that was clearly susceptible to rescission under well-established principles. Once it became evident that the applicants had a bona fide explanation and defence, the matter could perhaps have been conceded to save time and costs. Instead, the first respondent put the applicants to proof on every point. In the exercise of my discretion, I find it fair that the first respondent bear the costs of this application. Those who unreasonably cling to default judgments should not expect an indulgence on costs.

Accordingly, it is ordered that:

The default judgment granted by this Court in Case No. HCH 3222/25 on 8 July 2025 be and is hereby rescinded in its entirety.

Case No. HCH 3222/25 (Jiayuan Investments (Pvt) Ltd v Officer Commanding Police (Mash Central) & Anor) is reinstated on the court roll. The applicants are granted leave to file their notice of opposition and opposing affidavits within 10 days of this order, and thereafter the matter shall proceed in accordance with the Rules of this Court.

The first respondent shall pay the costs of this rescission application.

Mambara J: ……………………………………………………….

Civil Division, applicants’ legal practitioners

Mahuni Gidiri Law Chambers, first respondent’s legal practitioners