After
hearing counsel, I granted an order in favour of the applicants
herein. I am advised that an appeal against my decision has since
been noted and a request for reasons for the judgment has been
communicated to the Registrar. These are my reasons.
This
is an application for the dismissal of the respondents' application
in case number HC2754/2014 for rescission of a default judgment
granted in case number HC8991/2014. The background to the
applications is as follows:
The
applicants issued summons in case number HC8991/13 against the
respondents claiming the sum of US$4,634,547=72 with interest thereon
at the rate of 38% per annum. The applicants also claimed that three
properties be declared specially executable. The claim was defended.
After closure of pleadings, the matter was set down for a pre-trial
conference on 25 March 2014 at 9:30am. Counsel for the applicants and
his client were in attendance. Mr McGown, a legal practitioner with
Venturus and Samukange, attended for the respondents. None of the
respondents were in attendance, either personally or through their
representatives, in the case of the respondents who are companies. It
appears Mr McGowan was appearing on behalf of Mr Samukange with
instructions to apply for the amendment of the defendants'
counterclaim and further to agree on the issues to be referred to
trial. The application was opposed by the applicants. Mr McGown was
not conversant with the facts of the matter. It was agreed that the
pre-trial conference be postponed to 1 April 2014, to allow Mr
Samukange, who was conversant with the facts, to attend the pre-trial
conference.
On
1 April 2014, counsel for the applicants was in attendance in the
judge's chambers. Neither the respondents nor their counsel were in
attendance. Counsel for the applicants telephoned the offices of
Venturus and Samukange and spoke with Mr Everson Samukange, a legal
practitioner at the firm, from whom he inquired the whereabouts of Mr
Samukange. No one appeared for the respondents soon thereafter and
the pre-trial conference proceeded without the respondents. The
respondents' defence was struck off. Default judgment was granted
in favour of the applicants.
On
2 April 2014, the respondents filed an application in case number
HC2754/14 seeking rescission of the default judgment granted on 1
April 2014 in case number HC8991/13. The applicants opposed the
application on 17 April 2014. The notice of opposition and opposing
affidavit were served on the respondents on the same date. The
respondents did not file an answering affidavit or take any other
step to prosecute the application for rescission of judgment within
30 days of the date of service of the applicants' opposing papers.
The
applicants filed the present application, in case number 2754/14, on
30 June 2014, seeking the dismissal of the respondents' application
for rescission of judgment. Soon thereafter, the respondents filed
their answering affidavit in case number HC2754/14 on 10 July 2014,
heads of argument on 18 July 2014 and the notice of set down on 23
July 2014. The applicants filed their heads of argument on 1 August
2014.
The
circumstances of the present application are that, after the
applicants filed the application on 30 June 2014 they served the
application on the respondents on 8 July 2014. The respondents filed
their opposing papers on 14 July 2014. The applicants filed both
their answering affidavit and heads of argument on 29 July 2014. The
heads of argument were served on the respondents on 29 August 2014.
The respondents filed their heads of argument on 19 February 2015 -
almost six months after the applicants filed their heads. The
applicants contended that the basis for the application was that they
filed their opposing papers in case number HC2754/14 and served the
same on the respondents on 17 April 2014. The respondents did not
file their answering affidavit as is required in terms of Rule
236(3)(b) of the High Court Rules neither did they prosecute their
case necessitating the filing of the present application on 30 June
2014. The respondents only filed the answering affidavit on 10 July
2014, a delay of forty one days and after the present application had
been filed and only two days after the service of the application on
them.
The
respondents opposed the application on the basis that this court did
not have jurisdiction to determine the application because one of the
respondents (not identified by name out of the nine respondents) was
not a Zimbabwean resident. It was contended that the respondents were
not compelled, under Rule 234(1), to file an answering affidavit. It
was further contended that the applicants did not want the claim in
case number HC8991/13, which involved substantial amounts of money,
resolved on the merits. The respondents prayed for the application to
be dismissed.
The
matter was set down for hearing on 20 February 2015. The notice of
set down of the hearing was served on the respondents' legal
practitioners by the Sheriff on 9 February 2015. On 19 February 2015,
the respondents filed their heads of argument. On the same date, and
by letter addressed to the Registrar of the High Court, they
requested that the present application and the application for
rescission in case number HC2754/14 be determined on the same date on
20 February 2015.
At
the commencement of the hearing on 20 February 2015, it became clear
that counsel for the applicants did not have instructions to deal
with the application for rescission. The parties agreed to a
postponement to enable counsel for the applicants to take full
instructions on whether or not the applicants would consider arguing
the application for rescission in light of the present application
for dismissal. The parties agreed to the postponement subject to
their legal practitioners approaching the Registrar for a suitable
date.
On
13 March 2015, counsel for the applicants attended court to argue the
present application on the understanding that the parties had agreed
to that date. Mr Samukange was not present. Instead, Mr Hungwe, a
legal practitioner with Venturus and Samukange, later attended court
and intimated that Mr Samukange was not aware of the date of hearing
and would not attend. The matter was postponed to a specific date, 31
March 2015. The application was ultimately argued and determined on
that date.
At
the commencement of the hearing on 31 March 2015, the applicants
indicated that they were proceeding with the application for
dismissal of the application for rescission of judgment. They
proceeded to raise a point in limine. Counsel for the applicants
submitted that the respondents were barred in terms of Rule 238(2a)
for failure to file their heads of argument timeously. He further
submitted that the respondent's heads of argument were therefore
improperly before the court as the applicant had not sought the
upliftment of the bar before filing the heads. It was argued that the
applicants had ample time to have filed a chamber application for the
upliftment of the bar and failed to do so. There being no such
application before the court, he moved for default judgment.
Mr
Samukange initially submitted that he was not aware that the
respondents' heads of argument were filed out of time and therefore
there was no need for the respondents to have made an application for
upliftment of the bar. He changed his argument upon it bring brought
to his attention that the respondents had admitted, in their heads of
argument, that the heads had not been filed timeously. An application
for the upliftment of the bar had been intimated in the heads. Mr
Samukange thereafter argued that the applicants had been placed on
notice, in the heads, that the respondents intended to apply for
upliftment of the bar. He contended that, as result, the applicants
were not going to suffer any prejudice if the application was
granted. He further submitted that he believed that the application
was not going to be opposed. He explained that the respondents had
failed to file heads timeously because of mis-filing of the
applicants' heads of argument in the legal practitioner's office.
The misfiling was attributed to the number of cases that Mr Samukange
was seized with relating to the present parties. Mr Samukange further
submitted that the respondents were desirous of having the matter
resolved on the merits as evidenced by the application for rescission
in case number HC2754/14. The respondents argued that they were
permitted, under Rule 84(b), to seek upliftment of a bar either
orally at the hearing of the application or through a chamber
application before the hearing. They opted to apply orally at the
hearing.
I
shall first proceed to determine whether or not the respondents ought
to have filed a chamber application for the upliftment of the bar.
It
is not in issue that the respondents' heads were filed out of time.
The respondents were required, in terms of Rule 238(2)(a), to file
their heads of argument within ten days of the service of the
applicants' heads on them. They were served with the applicants'
heads as far on 29 August 2014. They were therefore required to file
their heads of argument by no later than 12 September 2014. See Vera
v Imperial Asset Management Co 2006 (1) 436; Beverly Building Society
v Rwafa 2005 ZLR (1) 109 (S). They only filed their heads on 19
February 2015 - five months later. They were therefore automatically
barred and could only be heard by the court after successfully
applying for the upliftment of the bar.
Upliftment
of the bar is provided for in Rule 84. Rule 84(1) provides that:
“(1)
A party who has been barred may -
(a)
Make a chamber application to remove the bar; or
(b)
Make an oral application at the hearing, if any, of the action or
suit concerned; and the judge or court may allow the application on
such terms as to costs and otherwise as he or it, as the case may be,
thinks fit.”
Rule
84(1)(b) indeed permits a party to make an oral application for the
upliftment of the bar as argued by the respondents. I am, however, in
agreement with the applicants that the history of this matter was
such that it was necessary for the respondents to have filed a
chamber application for upliftment of bar. As would be apparent in
the pleadings in case number HC2754/14, there were counter statements
as to what transpired after 25 March and on 1 April 2014 giving rise
to the default judgment in case number HC8991/14. The delay of
five months in filing the heads was considerable. Any prudent legal
practitioner would have been aware that it was not sufficient for the
legal practitioner to make averments from the bar. See GMB v Muchero
2008 (1) ZLR 216…,.
Midstream
the addresses by the parties on the point in limine, the respondents
made a turn around and applied for a postponement to enable them to
file a chamber application for the upliftment of the bar. The
application was vigorously resisted. The applicants argued that the
application for postponement ought to have been made before the
application for upliftment of the bar and argument on the
application.
A
court has a discretion whether or not to grant a postponement to
enable a party to prepare an application for the upliftment of bar.
The discretion must however be exercised in a judicious manner. A
postponement must be granted where justice demands that a party
should be afforded further time for the purpose of presenting its
case so as to avoid occasioning prejudice to the party.
I
was sensitive to the observations by GARWE JA in GMB v Muchero 2008
(1) ZLR 216 that a party who is barred and wishes to apply for the
upliftment of the bar, should be granted, in a proper case, a
postponement to do so. GARWE JA at 221A-C cited with approval the
observations by HATHRON JA…, in Abramacos v Roman Gardens (Pvt) Ltd
1960 R & N 1 (SR)…, that:
“…,
a defendant ought not to be deprived of having an application for
condonation disposed of before default judgement is given against him
where, as here, there appears to be an adequate explanation why that
application is not before the court…,.”
The
learned judge continued…,:
“…,
in those cases in which the defendant's counsel has asked for a
postponement in order to enable a proper application for removal of
the bar to be made and has given a satisfactory explanation why such
an application was not then before the court, I have treated the
appearance as the first step in an application for the removal of the
bar, and granted the postponement…,.”
See
also Galante v Galante 2002 (1) 521 where the requirements for an
application for a postponement are summarised in the headnote to that
case…,.
I
do not believe that this is a proper case to indulge the respondents.
The
explanation by the respondents for not having filed a written
application was simply that they were entitled to make an oral
application at the commencement of the hearing. Such an explanation
cannot be said to be satisfactory given the history of the matter
which is riddled with the respondents' non-compliance with the
Rules. The notice that the respondents gave of their intention to
apply for the upliftment of the bar was totally inadequate. The
notice was a day's notice. The respondents had five months within
which to make their application. They did not file the application.
They were served with the notice of set down of the hearing of this
application on 9 February 2015. They therefore had ten days before
the hearing, on 20 February 2015, to file their chamber application.
The matter was further postponed on two separate occasions to 13
March 2015 (giving them an additional 20 days) and then to 31 March
2015, giving them a further 18 days within which to file an
application for the upliftment of the bar. The respondents still did
not consider it prudent to make a written application. After the
hearing on 20 February 2015 they sat back and waited only to make an
oral application on 31 March 2015. They may have been forgiven on the
first occasion but certainly not on the second and third occasions.
Further,
unlike in GMB v Muchero 2008 (1) ZLR 216 where an application for
postponement appears to have been made at the commencement of the
hearing, the application in the present matter was made after the
respondents had not only applied for the upliftment of the bar but
both the applicants and the respondents had presented their arguments
on the application. It appears the respondents had apparently
realised the limitations of their submissions, and, consequently, the
need for a written application which they should have filed in the
first place. The turn-around by the respondents was ample evidence
that this is a case that begged for a chamber application. To allow a
postponement under such circumstances would, in my view, be
tantamount to assisting the respondents to correct the inadequacies
in their arguments at the expense of the applicants.
It
is trite that civil proceedings are party driven and the court should
not be seen to be assisting one party to build its case the detriment
of the other party.
Turning
to the question whether or not the bar should be lifted; these courts
have, time and again, pronounced that the upliftment of a bar is not
automatic upon the mere asking. See Mutizhe v Ganda & Ors 2009
(1) 241 (S) and Chimonyo v Route Toute BV & Ors No. SC20-10.
A
party seeking the upliftment of a bar must satisfy the requirements
for such an application. These are:
(a)
The extent of the delay;
(b)
The reasonableness of the explanation for the delay;
(c)
Whether the litigant himself is responsible for the delay;
(d)
The prospects of success should the application be granted;
(e)
The possible prejudice to the respondent should the application be
granted.
Kombayi
v Berkout 1988 (1) RLR 53 (S) and Jensen v Acavalos 1993 (1) RLR 216
(S).
The
respondents did not, in my view, satisfy the requirements. The
respondents' heads of argument were only filed on 19 February, on
the eve of the hearing on 20 February 2015 - five months late. The
filing of the heads was obviously not in compliance with the Rules as
no order for the upliftment of the bar had been granted. The
explanation by the respondents for the delay of five months was
unacceptable.
Mr
Samukange sought to persuade the court that there was mis-filing of
the applicants' heads at the legal practitioner's offices. There
was nothing before the court other than Mr Samukange's say so, to
prove that there had been such misfiling of documents. In fact, Mr
Samukange's submissions disclosed a high degree of insincerity. The
heads of argument appear to have been prepared by Mr Samukange
himself. They bear the same date that they were issued by the
Registrar, that is, 19 February 2014. The preamble to the heads state
as follows:
“The
present Heads of Argument are filed out of time, and, at the hearing
of the matter, an oral application for the removal of the bar for
failure to file Heads of Argument timeously will be made.”
It
is therefore apparent that the respondents' legal practitioner was
aware, as of 19 February 2015, that the heads had been filed out of
time. This matter was heard on 31 March 2015. Mr Samukange cannot
genuinely have expected the court to believe that he had forgotten,
within a period of 40 days, what was contained in the heads of
argument. Assuming he had forgotten, this is reflective of a
lackadaisical attitude. It would mean that he had not prepared for
the hearing. Had he done so, it would have been at the fore of his
mind that he was required to apply for the upliftment of the bar
first. He, however, had to wait for the applicants to raise the
issue. This lackadaisical attitude is further compounded by Mr
Samukange's own submissions that he believed that the applicants
were not going to oppose the application for the upliftment of the
bar. A prudent legal practitioner would have engaged the applicants
prior to the hearing on whether or not the application was going to
be opposed. Assuming that the application was not going to be
opposed, the respondents were still required to apply for removal of
the bar and advise the court that the application was not opposed. It
is apparent that the respondents were too presumptuous, turning a
blind eye on all their previous transgressions. The transgressions
were indicative of the respondents' disdain of the Rules.
The
following are the respondents' transgressions which are a clear
reflection of their dilatory approach to the entire litigation
between the parties:
1.
On 25 March 2014, Mr Samukange, who was familiar with the matter in
case number HC8991/13 did not attend the pre-trial conference. Mr
McGowan, who was not familiar with the matter, attended with
instruction to make an application on a matter he was not familiar
with necessitating the postponement to 1 April 2014 in order for Mr
Samukange to attend the pre-trial conference.
2.
Mr Samukange did not attend the pre-trial conference on 1 April 2014.
An explanation was given in the application for rescission for the
non-attendance of the legal practitioner being that he was in Belgium
attending the wedding of the daughter of the fifth respondent (Jamal
Joseph Hamed).
The legal practitioner opted to attend the wedding of the
respondent's daughter ahead of court.
3.
There was no prior communication to the court or to the applicants
that Mr Samukange would be unavailable to attend the pretrial
conference on 1 April 2014. The explanation for the lack of
communication given in the application for rescission is that the
legal practitioner gave instructions to his secretary to prepare a
letter explaining his unavailability on the date of hearing and
seeking the postponement of the matter. It appears the alleged letter
never left the legal practitioners' offices. In any event, it is
not proper to seek a postponement by letter and believe that the
request would be granted without a formal application. The
respondents clearly had the misconception that an application is
granted on the mere asking.
4.
None of the respondents attended the pre trial conferences on both 25
March and 1 April 2014. The respondents required the leave of the
judge to absent themselves from the pre-trial conference and it
appears they did not have the leave. Except for the explanation for
the failure of the fifth respondent to attend on 1 April 2014,
because he was at his daughter's wedding, there was no explanation
why the other respondents did not attend both pre trial conferences.
One would understand if at least one of them appeared on behalf of
all of them.
5.
After filing an application for rescission of the default judgment,
the respondents neither filed an answering affidavit nor set the
matter down for hearing within 30 days of service of the applicant's
opposing papers on their legal practitioners as is expected in terms
of the Rules.
6.
An answering affidavit was filed out of time on 10 July 2014, and,
apparently in response to the present application filed on 30 June
2014 and served on the respondents on 8 July 2014. In other words,
the answering affidavit was filed two days after service of the
application. This was obviously intended to defeat the purpose of the
present application.
7.
The respondents did not file their heads of argument timeously in the
present application. The applicants filed their heads of argument on
29 July 2014 and served the same on the respondents on 29 August
2014. The respondents only filed their heads of argument on 19
February 2015 - almost six months after service of the applicants'
heads on them.
8.
The respondents were served with the notice of hearing on 9 February
2015. The respondents' legal practitioner only wrote to applicants'
legal practitioners on 19 February 2015, 10 days after service of
notice of set down and a day before the hearing, seeking a
consolidation of cases number HC2754/14 and HC5356/14. This was the
second occasion to file papers out of time, the first having been
failure to file the respondents' answering affidavit in case number
HC2754/14.
9.
Despite being aware that their heads of argument were out of time,
the applicants did not file a chamber application seeking the
upliftment of the bar.
10.
Despite the matter having been postponed on two occasions, giving the
respondents 48 days after the date of service of the notice of set
down of the hearing within which to file an application, they still
failed to do so.
11.
On the date of hearing of the application on 31 March 2015, the
respondents did not immediately make an application for upliftment of
the bar at the commencement of the hearing only doing so upon the
issue being raised by the applicants.
Given
the extent of non-compliance with the rules, I am of the view that
the respondents do not have any prospects of success in the event of
this application being determined on the merits. Any prejudice to be
suffered by the respondents is of their own making. The blame for the
respondents' predicament cannot be placed on anyone other than the
respondents themselves and their legal practitioner. In fact, it is
the applicants who have suffered prejudice by failing to realize the
benefits of an order granted in their favour because of the
respondents' ineptitude. The trajectory of all the three matters
was necessary as the manner in which the respondents conducted
themselves in the matters had a bearing on the determination of the
applications for upliftment of bar and postponement. The conduct
clearly reflects the respondents' and their legal practitioner's
dilatoriness. The analysis of the conduct should therefore not be
seen as an attempt to determine the merits of the present application
or the application in case number HC2754/14. The respondents have
exhibited a casual approach to all the matters between the parties.
The interests of justice do not justify the upliftment of the bar or
that they be given further time to file a written application for the
upliftment of the bar. There must be finality to litigation and the
respondents cannot be over-indulged for their ineptitude to the
detriment of the applicants.
It
is clear that once a party is barred and remains barred, the matter
is treated as unopposed. It was accordingly ordered that:
1.
The application by the respondents for postponement to enable the
respondents
to file a chamber application for upliftment of the bar be and is
hereby dismissed.
2.
The application by the respondents, for the upliftment of bar for
failure to file heads of argument, be and is hereby dismissed.
3.
The application for dismissal of case number HC2754/14 be and is
hereby granted with costs.
