CHITAKUNYE J: On the date of the
hearing a point in limine to the effect that respondent was barred for not
filing heads of arguments in time was raised by applicant's Counsel after which
I granted the application and indicated that my written reasons will follow.
These are the reasons.
The applicant and the
respondent are former husband and wife. They were granted a decree of divorce
by this court on 26 January 2012 in case number HH 51/2012. The Court
order provided for, inter alia, a division of assets of the spouses.
Clause 3 in that regard provided
that:-
“3.
The immovable property registered in the plaintiff's name known as 999G
is hereby distributed by awarding 60% share to the plaintiff and 40% share to
the defendant.
3.1.
The property shall be valued by a registered estate agent
nominated by both parties within 30
days of this order.
3.2. In the event that the parties fail to agree
on an estate agent, the
Registrar shall appoint an estate
agent from his list to conduct an evaluation of the property upon request by
either party.
3.3.
The estate agent shall submit his or her report to the parties within 15
days of his or her appointment.
3.4.
The cost of evaluation shall be shared between the parties with the
plaintiff paying 60% and the defendant 40%.
3.5.
The plaintiff is hereby granted the right to buy out the defendant's 40%
share within 90 days of the date of evaluation of the property.
3.6.
In the event that the plaintiff fails to buy out the defendant in terms
of paragraph 3.5 above, the property shall be sold at the best advantage by the
deputy sheriff and the net proceeds shared between the parties with the
plaintiff awarded 60%share and the defendant 40% share as per para (3)
above…..”
The applicant appealed against one
of the aspects of the judgement. The appeal was later withdrawn.
In the meantime the parties engaged
in some arrangement pertaining to the enforcement of the judgement.
On 27 May 2013 the applicant
launched this application seeking an order to the effect that he has fully
complied with the provisions of para 3.5 of Case No HH51/2012 and so
respondent should vacate Stand 999G, Harare.
The respondent opposed the
application.
The applicant then filed his heads
of argument on 18 July 2013. The heads of arguments were served on the
respondent's legal practitioners on the same date. In terms of r 238(2a)
of the High Court Rules, the respondent's heads of arguments were supposed to
be filed within 10 days from 18 July 2013. The respondent purported to
file his heads of argument on 19 September 2013.
On the date of hearing, applicant's
counsel raised a point in limine arising from the late filing of the
respondent's heads of arguments. The respondent's counsel had no
plausible explanation for the obvious delay and failure to apply for the upliftment
of the bar before the issue had been raised by applicant's counsel.
It was then that respondent's
legal practitioner sought to apply for a postponement of the hearing to enable
the respondent to file an application for condonation. That application
was opposed. After hearing both counsel, I dismissed the application for
postponement.
I was of the view that whenever a
party seeks a postponement a party must advance reasonable grounds for the
application. In casu, the respondent's counsel seemed oblivious of the
fact that his heads of argument were filed out of time. When that fact
was brought to his attention he attempted to say the heads were not filed out
of time in view of the vacation.
However, a careful analysis of the
matter shows that the applicant's heads having been served on the respondent on
18 July 2013, the respondent ought to have filed his heads of arguments by 2
August 2013 which was within the same term. Instead the respondent's
heads were only filed on 19 September 2013. This was weeks after the
third term had opened.
The impression created is that the
respondent's legal practitioner for a reason best known to himself had
deliberately not applied his mind to the timelines for filing heads of
arguments and just thought that anytime would do. The rules are very
clear on this. In that regard r 238(2) states that:-
“where an application,… has been set
down for hearing in terms of sub rule(2) of rule 223 and any respondent is to
be represented at the hearing by a legal practitioner, the legal practitioner
shall file with the registrar, in accordance with sub rule (2a), heads of
argument clearly outlining the submissions relied upon by him…….”
Subrule (2a) referred to therein
states that: -
“heads of argument referred to in
sub rule (2) shall be filed by the respondent's legal practitioner not more
than ten days after heads of argument of the applicant…. , were delivered to
the respondent in terms of sub rule(1)……..”
Where the heads of argument are not
filed in time the respondent is barred. To this effect sub rule (2b) of
the same rule states 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.”
Where a party is barred the normal
route to take is to apply for the upliftment of the bar. In such an
application a party must advance reasonable explanation for failure to abide by
the rules. The explanation must be bona fide.
In casu, the respondent'
legal practitioner had no such explanation and instead opted to apply for a
postponement.
As already alluded to above respondent's
counsel seemed not alive to the breach hence could not advance any good reasons
for the failure to comply with the rules yet the failure to comply was so
blatant. Applicant's heads of argument were served on respondent's legal
practitioners on 18 July 2013 and respondent purported to file his heads of
argument on 19 September 2013. Those heads of argument ought to have been filed
at the latest by 2 August 2013 which was still during the second term of the
High Court Calender.
Having failed to do so within the
ten days, it took respondent about two weeks after the opening of the third
term to file his heads of argument. Even then respondent's legal
practitioner came ill prepared to address the issue of late filing of the heads
of argument.
In the circumstances I dismissed the
application for postponement and I proceeded to consider the matter and grant
the applicant's application as respondent was barred.
Accordingly I granted an order
that:-
1. The applicant has fully complied
with the provisions of para 3.5 of Case No. HC 51/2012.
2. The respondent vacate the
premises known as Stand 999G Harare within seven days of the granting of this
order.
3. In the event that the respondent
does not vacate the said premises as provided for in para 2 of this order that
she be responsible for all owner's charges in respect of the property set out
in para 2 here above until she vacates the said premises.
4. That the respondent services the
mortgage loan with CABS for as long as she remains on the premises.
5. That this order remains effective
notwithstanding the noting of any appeal.
6. That the respondent pays the
costs of this application on an attorney and client scale.
Mtetwa & Nyambirai, Applicant's
Legal Practitioners
Muvingi & Mugadza, Respondent's Legal
Practitioners.