Right of access to superior court in the context of an application for rescission of a default judgement

Abstract

Once a default judgment has been granted, the judgment creditor usually proceeds to execute the judgment. In some instances, the defaulting party then applies for rescission of the default judgment. In Zimbabwe, the practice has been that the application for rescission of a default judgment does not suspend the operation of a judgment being sought to be rescinded. The judgment creditor can proceed to execute the same, even pending the judgment. The challenge with this approach is that this effectively increases the cost of litigation in that the defaulting party is then required to apply for a stay of execution pending the rescission of a default judgment. A judge then has the power to decide whether the matter is urgent or not. The fate of the defaulting party then is in the hands of a judge. It is argued in this paper that the correct approach is that the application for rescission must suspend the execution of judgment. Secondly, the rescission of a default judgment must be further heard as a chamber application and allocated a date of hearing similar to an urgent chamber application. This approach would ensure that the defaulting party’s right of access to the court is guaranteed while the litigation costs are substantially reduced.