Africa-Press – Zimbabwe. HIGH Court judge Justice Jacob Manzunzu has dismissed an application to rescind a default judgment for a US$500 000 debt, ruling that the applicant cannot blame his lawyer for “wilful default” and a “lackadaisical approach” to the case.
Justice Manzunzu upheld his extempore decision from May, finding that Luka Ignatius Fabris had failed to show “good and sufficient cause” for the setting aside of the judgment granted against him in favour of businessman Tendai Mashamhanda.
The dispute originated from a US$500 000 loan that Mashamhanda advanced to Fabris in December 2021, which was due for repayment with interest in February 2022.
After Fabris failed to repay, Mashamhanda issued summons in December 2023.
According to the judgment, Fabris initially engaged lawyers, who filed an appearance to defend.
The parties held a meeting on January 17 last year, where Fabris allegedly admitted liability and proposed an out-of-court settlement by offering shareholding in his mining company, Hotburn Minerals (Pvt) Ltd.
However, after the meeting, Fabris and his lawyer, Alex Mambosasa, allegedly fell silent and failed to respond to multiple follow-up letters and a formal “notice to plead”, leading to Fabris being barred and a default judgment being granted against him on May 23 last year.
Fabris claimed he only became aware of the judgment in September 2024 when the Sheriff was executing it.
In his application for rescission, he blamed his former lawyer’s negligence for failing to file a plea and denied ever receiving the money.
Justice Manzunzu rejected his arguments.
The court found the explanation from Fabris’ lawyer for the default — that he had travelled to South Africa — to be unreasonable, especially with the existence of the Integrated Electronic Case Management System, which allows for the filing of documents remotely.
Crucially, the judge ruled that a litigant cannot always escape the consequences of their lawyer’s failures.
“Applicant made his choice of a legal representative and he must stand by his choice,” Justice Manzunzu said.
The court also found that Fabris himself displayed a “lackadaisical approach” by making no effort to follow up on his own settlement proposal for nearly eight months, only to be “awakened by the execution”.
Furthermore, Justice Manzunzu ruled that Fabris’ denial of the debt was inconsistent with his earlier conduct.
He said Fabris’ proposal to settle the claim by offering company shares, instead of outrightly denying the debt, undermined his defence and showed a lack of bona fides and prospects of success.
“At no point did the applicant show diligence in defending the main matter,” the judge wrote, classifying the rescission application as a “delaying tactic”.
As a result of the applicant’s conduct, the court ordered Fabris to pay the costs of the application on a higher, legal practitioner and client scale, ensuring Mashamhanda is fully compensated for legal expenses.
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