On 26 February 2013, the parties appeared before me, duly
represented by their respective legal practitioners of record, for the purpose
of holding a pre-trial conference. That pre-trial conference was postponed sine die on specific conditions which were explained to all
present. In brief, the parties were to convene their own conference with a view
to settle the matter. If they failed then they would have to set out those
matters which would have been agreed and those on which agreement was not
achieved in a minute addressed to me. I would, in that event, convene another
pre-trial conference in terms of Rule 182 of the High Court Rules, 1971.
On 16 September 2013, the matter was scheduled to
continue before me as agreed and in terms of my directive. Counsel for the plaintiff applied
for the striking-off of the defendant's defence as well as his counter-claim.
He applied that a judgment in default of appearance be entered for the
plaintiff on the basis that the defendant, despite being served with a notice
of set down of the matter, has chosen to wilfully absent himself from the
pre-trial conference.
Counsel for the defendant claimed that his client was
appearing in the Magistrate's Court in Kwekwe and was therefore not in wilful
default.
Counsel for the plaintiff countered this explanation by
drawing counsel for the defendant's
attention that the well-known and time honoured practice was that this court
takes precedence over the Magistrate's Court. As such, the defendant, if he
wished not to be in wilful default, had ample time to arrange his affairs
accordingly and avoided being in default of appearance.
Rule 182 of the High Court Rules, 1971, is a useful tool
in the Rules of court aimed at disposing or curtailing proceedings. A party who
wishes to have his matter dealt with expeditiously with the courts need only
comply with this Rule in order to achieve that goal. It would appear that,
despite his counter-claim, the defendant is either unwilling or disinterested
in the expeditious disposal of the present matter as it relates to both the
plaintiff's claim and his own counter-claim. If he indeed intended to proceed
to finality he would have made arrangements in good time as would have allowed
him to attend to the pre-trial conference today. I am unable to hold that the
matter at the Magistrate's Court was such that it could not, with appropriate
diligence, be put in abeyance pending the conference today. The defendant has,
in my view, failed to comply with my directive as envisaged in Rule 182(11) of
Order 26 of the High Court Rules, 1971. In the event, I am satisfied that he is
in wilful default. As such, the plaintiff is entitled to the order it seeks. In
the result, I make the following order:
1. Defendant's defence and counter-claim be and is hereby
struck out.
2. It is ordered that:
a. The lease agreement between the plaintiff and the
defendant, in respect of Stand No.50 Kwekwe, otherwise known as No.10 Nelson
Mandela Way, Kwekwe, be and is hereby cancelled.
b. The defendant and all those claiming through him be
and are hereby directed to vacate the premises at No.50 Nelson Mandela Way,
Kwekwe, forthwith, failing which the Deputy Sheriff, Kwekwe, be and is hereby
authorised to eject forthwith the defendant and all those claiming through him
from the said property.
c. The defendant pays to the plaintiff the sum of US$85,250=
in respect of arrear rentals as at 1 July 2012 together with interest thereon
at the agreed rate of 10% per annum with effect from 1 August 2012 to date of
payment in full.
d. Defendant pays to plaintiff holding over damages at
the rate of US$83=33 per day with effect from 1 August 2012 to the date of
vacation or ejectment.
e. Defendant pays plaintiff collection commission thereon
calculated in accordance with By-Law 70 of the Law Society By-Laws, 1982.
f. Defendant pays plaintiff costs on the legal
practitioner and client scale.
