After
representations from both sides I granted a default judgement in
favour of the plaintiff. The defendant's lawyer has requested for
the written reasons. These are they.
This
matter was set for the Pre-Trial Conference on 4 February 2015 before
this court at 1530 hours. Due to other commitments the matter was
postponed to 11 February 2015 at 1530 hours with the full knowledge
of the parties. On 11 February 2015, at 1530, hours counsel for the
plaintiff appeared with a representative of the plaintiff. Counsel
for the defendant appeared alone without his client. The court
queried why the defendant had not filed his Pre Trial Conference
papers.
In
response to the court's query, counsel for the defendant indicated
that he had encountered problems with his client who was out of the
country on business. However, he said he had instructions from his
client to proceed in his absence. The court brought to his attention
that in view of his client's plea to the plaintiff's claims it
was imperative that he should have attended with the view of
curtailing the proceedings. He insisted that his client feared that
if he attended the pre-trial conference he risked losing his
employment.
Counsel
for the plaintiff, on behalf of the plaintiff, then made an
application to have the defendant's defence struck off and for
default judgment to be granted in favour of his client.
The
basis of his application being that the defendant had not been
excused by this court. He submitted that on 6 November 2014 they
received a notice from the Registrar of this court directing them to
hold a round table conference in terms of the Rules of this court,
and to appear on 4 of February 2015 for a pre–trial conference.
Pursuant to the Registrar's directive they had a meeting on 19
November 2014 in order to hold a round table conference. The meeting
was then postponed indefinitely at the request of the defendant's
counsels because the legal practitioners for the defendant could not
locate their client. The defendant's legal practitioners undertook
to revert back to the plaintiff's legal practitioners by the 28th
of
November 2014 for purposes of holding their round table conference.
Despite their undertaking to revert back to them, the defendant and
his legal practitioners failed to come back until the notice set by
the Registrar arrived. In his view, the defendant was in wilful
default despite being served with the notice to attend the pre trial
conference.
Counsel
for the defendant told the court that indeed a round table conference
had been arranged, although he was not the one who attended. He
confirmed that the defendant was aware of the date of the pre-trial
conference but was unable to attend due to his stringent work
schedule.
Pre-Trial
Conferences are held in terms of Order 26 Rule 182 of the High Court
Rules, 1971. Rule 182(4) says -
“(4)
The Registrar, acting on the instructions of a judge, may, at any
time, on reasonable notice, notify the parties to an action to appear
before a judge in chambers, on a date and at a time specified in the
notice, for a pre-trial conference, or a further pre trial
conference, as the case may be, with the object of reaching agreement
on or settling the matter referred to in subrule (2), and the judge
may, at the same time, give directions as to the persons who shall
attend and the documents to be furnished or exchanged at such
conference.”
In
casu,
the notice sent by the Registrar, dated 13 January 2015, invited the
legal practitioners to attend the pre-trial conference promptly, with
their clients, on 4 February 2015 at 1530 hours before a judge in
chambers. On 6
November
2014, the Registrar had sent another note to the parties which read
as follows -
“RE:
AFRASIA BANK LTD ZIM V S. CHIDAKWA
The
above matter refers.
It
is directed that parties meet for a round table discussion, in a bid
to settle the matter or reach an agreement on possible ways of
expediting or curtailing the duration of the trial, before attending
the above Pre-Trial Conference. The parties should consider the
matters provided for in Rule 182(2) of the High Court Rules during
their round table discussions.”
It
is clear, therefore, that the legal practitioners were supposed to
comply with such directions and to appear before a judge with their
clients. The defendant was thus not excused from attending. The
defendant was not even co-operating hence the failure by his legal
practitioners to file pre-trial conference documents before the date
of the hearing. The documents were only tendered when the court
raised the issue.
Rule
182(11) provides a remedy to the party who attends the pre-trial
conference against the defaulting party. The subrule says -
“(11)
A judge may dismiss a party's claim or strike out his defence or
make such other order as may be appropriate if -
(a)
The party fails to comply with directions given by a judge in terms
of subrule (4), (6), (8) or (10) or with a notice given in terms of
subrule (4); and
(b)
Any other party applies orally for such an order at the pre-trial
conference or makes a chamber application for such an order.”
In
this case, the legal practitioner for the plaintiff applied, at the
pre-trial conference, to have the defendant's defence struck out
and to grant a default judgment in favour of the plaintiff in terms
of the summons. Such an application has merit. The plaintiff is
entitled to the relief sought.
In
the result, I make the following order -
The
defendant is in default, default judgment is granted in favour of the
plaintiff in terms of the summons.
