SUMMARY
JUDGMENT
BHUNU
J:
This
is an application for summary judgment initially brought against both
respondents. The first respondent is a company duly registered in
terms of the laws of this country whereas the second respondent is
its managing director.
On
2 June 2014 the applicant issued summons against both accused
claiming payment of US$16,817.30 plus 15% interest per annum from 13
January 2014 to date of payment in full with costs at the higher
scale. The plaintiff's claim against the respondents was joint and
severally one paying and the other to be absolved.
The
respondents duly entered appearance to defend on 5 June 2014
whereupon the applicant filed this application for summary judgment
on 3 December 2014. The matter was then set down for hearing before
me on 3 February 2015.
At
that hearing Mr Stewart
counsel for the applicant withdrew his client's claim against the
first respondent on account that they had received written
communication that the first respondent had been placed under
judicial management. He however persisted with his claim against the
second respondent.
Ms
Mazhandu
for the second respondent however objected to the applicant
proceeding against her client on his own. She strenuously argued that
the claim being withdrawn cannot proceed against the second
respondent alone because when the first respondent was placed under
judicial management all claims were stayed. She then applied that the
parties be given time to file heads of argument.
Mr
Stewart
countered
that the operation of law against the first respondent has no bearing
on second respondent's liability as the applicant's claim was
joint and severally one paying and the other to be absolved. Despite
the withdrawal against the first respondent both respondents were
already barred for want of compliance with Rule 238(2a) and (2b) upon
failure to file heads of argument within the prescribed 10 day period
after receipt of applicant's heads of argument.
The
Rule provides as follows:
“(2a)
heads of argument referred to in subrule (2) shall be filed by the
respondent's legal practitioner not more than ten days after heads
of argument of the applicant or excipients, as the case may be, were
delivered to the respondent in terms of subrule (1):
Provided
that —
(i)
No period during which the court is on vacation shall be counted as
part of the ten-day period;
(ii)
the respondent's heads of argument shall be filed at least five
days before the hearing.
[subrule
substituted by S.I. 192 of 1997]
(2b)
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.”
Rule
83 prohibits a litigant who has been barred from being heard for any
other purpose other than for the upliftment of the bar. It reads:
“83.
Effect of bar
While
a bar is in operation —
(a)
The registrar shall not accept for filing any pleading or other
document from the party barred; and
(b)
the party barred shall not be permitted to appear personally or by
legal practitioner in any subsequent proceedings in the action or
suit; except for the purpose of applying for the removal of the bar:”
What
this means is that Ms Mazhandu's
objection against the applicant proceeding against her client in the
absence of the first respondent cannot be entertained as long as the
bar is operating against her client. She however appears not to have
appreciated the effect of a bar as appears from her response in this
respect in which she had this to say:
“Ms
Mazhandu:
the
heads of argument do not take into account the issue of withdrawal.
Second respondent should be given a chance to respond to the amended
draft order otherwise he shall not have been accorded a fair hearing.
Court:
you have not addressed me on the question of the bar operating
against your client.
Ms
Mazhandu:
the 2nd
respondent we were no longer representing him I can't for sure say
what transpired. I can't dispute there was a bar but the bar was
against both respondents. Things have since changed. This is now a
different matter.
Court:
does that lift the bar.
Ms
Mazhandu: it
does not. If the court can allow me to apply for upliftment of the
bar.
Mr
Stewart: the
applicant stands prejudiced. There are no triable issues. The
defendants' plea merely indicates that they have been experiencing
difficulties in paying the plaintiff. That is no defence. In
subsequent correspondence they admit owing the applicant. Heads of
argument were filed at the 11th
hour. They now seek to uplift the bar.
Ms
Mazhandu: I
am not privy to any of the correspondence. This matter cannot be
finalised on summary judgment. There are so many issues raised. I
refer to the notice of opposition the respondent has a bona
fide
defence and all the agreements referred to are not part of the
record. They are also not part of the applicant's case. I therefore
do not see the prejudice if the bar is uplifted.”
The
above exchanges make it clear that the application for upliftment of
the bar was made as an afterthought without careful consideration of
the legal requirements for such an application to succeed.
Where
a litigant has been barred the other party gains an advantage that
cannot be easily swept away. Rule 84 provides for the required
procedure for upliftment or removal of a bar as follows:
“84.
Removal of bar and effect
(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.
(2)
the withdrawal or removal of a bar shall not preclude a subsequent
bar for subsequent default.”
[rule
substituted by S.I. 33 of 1996]
Thus,
before the bar can be lifted, the barred party has an onerous duty to
justify the upliftment of the bar. Unless the other party consents to
the upliftment of the bar, the barred party must apply for the
upliftment of the bar either in writing or orally at the hearing. The
application should be supported by an affidavit or some other facts
which must:
(a)
Give good and sufficient reasons or excuse for the delay.
(b)
Sufficiently address the applicant's prospects of success on the
merits.
In
Markides
and Hessam v
Levendale
1954 SR 77 Beadle J, as he then was emphasised the need to satisfy
both requirements. In that case the learned judge rejected as
inadequate an averment in an affidavit simply stating that “the
defendant's plea disclosed a valid and bona fide defence to the
plaintiff's plea.”
Thereafter
he proceeded to remark that in matters of this sort the defendant
should set out in his affidavit briefly what his defence is, what the
facts are on which he relies for his defence, so that the court can
form some opinion on the merits of his defence.
It
is needless to say that the applicant's application falls far too
short of the legal requirements in all material respects in so far as
it does not state the reasons for delay and fails to articulate the
applicant's prospects of success on the merits. His application
amounts to no more than simply stating that he must be accorded his
right to be heard otherwise the court would have denied him his
constitutional right to a fair trial.
This
argument is untenable in circumstances where he has failed to
articulate the basis of his defence. In particular he dismally failed
to deal with and rebut the allegation that his plea raises no triable
issue as he admitted liability as alleged.
There
is no substance in that complaint because the applicant was accorded
the right to be heard and he wasted that chance and has not proffered
any reasonable excuse as to why he failed to act within the
stipulated time frame.
As
previously stated in the original draft, the applicant sought an
order against both respondents but has since withdrawn its claim
against the first respondent. Consistent with that withdrawal the
applicant has now amended its claim to reflect the withdrawal by
dropping the second respondent's name from the proceedings. I can
perceive no prejudice to the second respondent arising from the
withdrawal because he was always liable to pay the full amount
claimed as the plaintiff's claim was right from the onset joint and
severally one paying and the other to be absolved.
The
claim being for a debt or liquidated demand, it is competent to award
summary judgment in terms of Rule 64. The application can therefore
only succeed in terms of the amended draft. It is accordingly
ordered:
1.
That the application for removal of the bar against the 2nd
respondent be and is hereby dismissed.
2.
That summary judgment be and is hereby entered against the 2nd
respondent in the following terms:
(a)
The 2nd
respondent shall pay the sum of US$16,817.30 (sixteen thousand eight
hundred and sixteen United States of America dollars and thirty
cents) to the applicant.
(b)
The 2nd
respondent shall pay interest on the above sum at the rate of 15% per
annum from the 13th
of January 2014 to the date of payment in full.
(c)
The 2nd
Respondent shall pay costs of suit at the ordinary scale.
Wintertons,
applicant's legal practitioners
Gama
and partners,
respondents' legal practitioners
