MUTEMA J: The bare bones of the matter are these: The
respondent issued summons against the applicant on 30 November, 2010 in case
number HC 8728/10, claiming $6 369-35. The applicant entered appearance to
defend via its erstwhile legal practitioners Messrs Bruce Mujeyi Manokore
Attorneys. The applicant through its then legal practitioners was served with a
notice to plead on 26 January, 2011. The
applicant did not enter a plea and the respondent applied for default judgment
on 2 March, 2011. The order was duly granted on 31 March, 2011 and issued on 28
April, 2011.
Subsequently the
respondent took out a writ of execution against applicant's property and it was
served upon the applicant on 31 May, 2011. On 2 June, 2011 the applicant
instructed its erstwhile legal practitioners to apply for the rescission of the
default judgment. The applicant's former legal practitioners, for reasons best
known to themselves, did not do anything. When called upon to proffer their
explanation for their unethical conduct by the applicant's present legal
practitioners who needed the explanation to buttress this application for
condonation for late application for rescission of the judgment, the erstwhile
legal practitioners did not respond. This contributed to the prolonged delay in
filing the application for rescission of the default judgment as well as the
present application.
At the scheduled
hearing of the matter two issues emerged against the respondent, viz that in
terms of r 238 (2 b) of the High Court Rules 1971, the respondent was barred
for filing heads of arguments outside the ten day period stipulated in subr (2
a) and that Mr Koto for the
respondent came to court not dressed in the required attire - prompting the
court to invoke the age old custom of saying that "I don't see you and I don't
hear you."
While r 238 (2
b) provides that following an automatic bar against a respondent, the court may
either deal with the matter on the merits or direct that it be set down for
hearing on the unopposed roll, I am persuaded by MAKARAU J's (as she then was)
reasoning in Vera v Imperial Asset Management Co. 2006 (1) ZLR 436 at 438 D-E. Therein the
learned Judge reasoned thus:
"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 the merits 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. In view of the above, I have used the discretion
vested in me by r 4C in the interests of justice and instead of directing that
the matter be set down on the unopposed roll for the granting of a default
judgment, I will save the incurring of further costs and delays in the matter
and grant a default judgment in favour of the applicant."
As regards
eschewing reviewing the merits of either case at this stage of the proceedings
which the learned Judge alluded to supra,
I am tempted to add, that not only would that 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, but also
the application to rescind the default judgment in HC 8728/10 which the
applicant intends to launch once condonation is granted.
Before I
conclude, there is one issue I must advert to, viz Mr Gijima's prayer that his client be awarded costs de bonis propris on the scale of
attorney and client. The reason advanced for seeking to mulct Mr Koto with such costs is that some of the
issues to be raised in the main application are points of law and as such it
was encumbent upon Mr Koto to legally
correctly advise his client following an attempt to persuade him to so do but
he refused and proceeded to file voluminous unnecessary papers confusing the
court in the process in an endeavour to simply snatch at a judgment. Well, I
often decry the death of the age old practice of legal practitioners engaging
each other in respect of such matters of adjectival law and accommodating each
other by consenting to things like upliftment of a bar, condonation, rescission
etc. where applicable thereby saving the court's time and client's money.
Nowadays I am not privy to why that no longer happens especially in respect of
young practitioners.
But is mulcting
them with costs on the higher scale de
bonis propris the solution? I think not. I have not been persuaded that
this is a proper case for such course of action.
In the result, I
grant a default judgment in favour of the applicant as follows:
IT
IS ORDERED THAT:
1. The
late noting of an application for rescission of judgment in case number HC
8728/10 be and is hereby condoned.
2. The
applicant shall file its application for rescission within ten days of this
order.
3. The
respondent shall pay the costs of this application.
F.G.
Gijima & Associates, applicant's legal
practitioners
Koto & Company, respondent's legal
practitioners
