CHITAKUNYE J. The applicant is the son
of the late Joseph Patrick Taremba who died on 24 December, 2004 at Mutare.
Applicant was duly appointed Executor Dative in the estate late Joseph Patrick
Taremba on 15 October 2009.
The respondent is a male adult residing
at Number W629 Amaveni, Kwekwe. This property is registered in the name of the
late Joseph Patrick Taremba under Deed of Transfer No. 1182/05.
After the death of his late father
applicant attempted to evict respondent from the said property to no avail.
On 2 August 2010 the applicant, in
his capacity as Executor, filed this court application seeking an order for the
eviction of respondent and all those claiming occupation through him from house
No. W629 Amaveni, Kwekwe. The respondent opposed the application. On 13
September 2010 the applicant filed his answering affidavit. On 18 October 2010
applicant's heads of argument were duly filed with court and served on the
respondent on 19 October 2010. Thereafter the respondent was expected to file
his heads of argument in terms of the rules.
In this regard rule 238 (2a) of the
High Court Rules 1971 provides that:-
“Heads of argument referred to in
subrule (2) shall be filed by the respondent's legal practitioner not more than
ten days after the heads of argument of the applicant or excipients, as the
case may be, were delivered to the respondent in terms of subrule (1);
Provided that-
(i)
no
period during which the court is on vacation shall be counted as part of the
ten- day period;
(ii)
the
respondent's heads of argument shall be filed at least five days before the
hearing.”
In
terms of the Rules the respondent was required to file his heads of arguments
within a period of not more than 10 days from the date of receipt of the
applicant's heads of argument. As the applicant's
heads of argument were served on 19 October 2010 respondent had 10 days there
from within which to file his heads of argument but did not do so. The
respondent's heads of argument were only filed on 17 February 2011. The
respondent was obviously late in filing the heads of argument.
Subrule (2b) of Rule 238
provides that-
“Where heads of argument that are
required to be filed in terms of subrule (2) are not filed within the period
specified in subrule (2a), the respondent concerned shall be barred and the
court or judge may deal with the matter on the merits or direct that it be set down for hearing on
the unopposed roll.”
By virtue of subrule (2b), respondent was
automatically barred. A party barred in
these circumstances may apply for the upliftment of the bar.
In casu respondent's legal practitioner did
not apply for the upliftment of the bar before or after the late filing of he
heads of argument despite acknowledging that he was barred for late filing of
the heads of argument.
When the parties appeared
before me on 2 March 2011 respondent stood barred. When this fact was raised
counsel for respondent conceded as much. He also conceded that no application
for the upliftment of the bar had in fact been made.
As the respondent was
barred and had not applied for the upliftment of the bar respondent could not
be heard on the merits.
Though the rules provide
that court may deal with the matter on the merits or refer the matter to the
unopposed roll, after a careful consideration of the option I was inclined to
agree with MAKARAU J in Shadreck Vera v Imperial
Asset Management Company HH50/06 wherein when faced with a similar
situation said, at p 3 of the cyclostyled judgment, that-
“It is my further view that as the
bar against a respondent in such circumstances is automatic and brings about a
technical default, a review of either case at this stage of the proceedings,
though provided for in the rules, will unnecessarily fetter the discretion of a
future court that may be seized with an application to rescind the default judgment
that the applicant is entitled to at this stage.”
I am of the view that
instead of referring the matter to the unopposed roll a default judgment may be
issued and avoid the incurring of further costs by the parties.
Accordingly a default judgment will
be entered for applicant as follows:-
It is ordered that:-
- The respondent and all those
claiming occupation through him be and are hereby ordered to vacate Stand
3112 Kwekwe Township of Queque Townlands, also known as Number W629 Amaveni,
Kwekwe within 48 hours of the date
of service of this order.
- Should the respondent fail to
vacate within the period indicated above, the deputy sheriff be and is
hereby authorized to evict the respondent and all those claiming
occupation through him from the said property.
- The respondent shall bear the
costs on a legal practitioner and client scale.
Kantor and Immerman, applicant's legal practitioners
Magodora and partners,
respondent's legal practitioners.
