Unopposed
Matter
MATANDA-MOYO
J:
This
matter was set down before me on the unopposed roll. Upon perusing
the file I noted that the issue of set down on the unopposed roll was
hotly contested by the defendants.
Correspondence
between the parties shows that the defendants are claiming that they
set the matter down in terms of the Rules and in particular Practice
Directive 1/13. In their correspondence it is clear that it is not
certain whether indeed the defendants set the matter down as per the
Rules as read with the Practice Directive.
It
is not my function to go into that enquiry and that enquiry can
properly be carried out in the presence of both parties.
In
the interest of time, I stood down the matter to my chambers and
called the lawyers for the defendants to ascertain whether indeed the
matter was set down.
Mr
Mahlangu
for the defendants produced an un-issued notice of set down dated 25
July 2014 which notice of set down was only served on the plaintiffs
on 22 October 2014. The Registrar sent such notice to the Sheriff on
21 October 2014.
Mr
Mahlangu
argued that Rule 138 of this court's rules could no longer be
complied with as the function of setting down of matters is now
vested in the Registrar. The parties could no longer set the matters
down and once a party request a set down date from the Registrar,
such party would have complied with the rules.
Rule
138(a) of the High Court Rules enjoins a party who files a special
plea, exception or application to strike out to set the matter down
with the consent of the other party within ten days of filing of such
special plea, exception or application to strike out in accordance
with Rule 223(2).
Rule
223(2) provides;
“2.
Subject to subrules (3), (4) and (5) and to Rule 238, exceptions,
applications to strike out and other applications which are opposed
shall be set down for hearing –
(a)
in Harare, on a business day agreed with the Registrar, by filing a
notice of set-down with the Registrar not less than six business days
before the day of set-down.”
The
brief chronology of events is as follows;
On
19 May 2014 the applicants issued summons against the defendants for
defamation damages in the sum of $200,000-00. On 3 June 2014 the
defendants entered an appearance to defend. On 3 July 2014 the
plaintiffs filed and served upon the defendants a notice to plead and
intention to bar. On 10 July 2014 the defendants filed an exception
and application to strike out. On 18 July 2014 defendants filed heads
of argument in respect of the exception and application to strike
out. On 4 September 2014 plaintiffs filed their heads of argument. On
20 October 2014 the defendants filed a notice of set down on the
opposed roll. On 24 October 2014 the plaintiffs filed another Notice
to plead and intention to bar which notice was served on respondents
on 27 October 2014. On 3 November 2014 the respondents filed a plea
in abatement.
The
plaintiffs took the attitude that there is no plea filed, and that,
respondents are barred for want of filing a plea. The plaintiffs
prayed for default judgment in terms of the Rules.
When
the plaintiffs filed a notice to plead on 24 October 2014 the
defendants had four days prior to that sought set down date with the
Registrar. When such notice to plead was filed the court was not made
aware that the exception and application to strike out was awaiting a
date from the Registrar.
The
question is whether it was competent to file a notice to plead when
the exception and application to strike out had been set down?
The
answer is no.
The
plaintiffs could only seek their remedy before the opposed roll
rather than on their own without a court's determination or finding
that the set down was a nullity.
In
Swazi
M.T.N Limited v
MV
Tel Communications (Pty) Ltd and Others Swaziland
High Court 7/06 stay of execution was granted pending determination
of rescission of judgment where the defendant had filed an appearance
to defend after the time prescribed by the rules. No condonation for
late filing of such notice had been granted, the judge found that the
negligence or lack of diligence by the defendant's lawyer may not
be good enough to be equated to wilful default on the part of the
defendant.
In
the matter in casu
when the plaintiffs sought set down on the unopposed roll, they were
aware that the respondents had applied for set down date. It is for a
court to find that such request for set down was out of time and of
no consequence. It is a court or judge who should order that the
matter be referred for determination on the unopposed roll. It is not
the duty of the judge sitting in motion court to make determination
whether the set down request is valid or not.
It
is common cause that after the request for set down was filed with
court on 20 October 2014, the plaintiffs issued another Notice to
Plead and Intention to Bar on 24 October 2014. The defendants filed a
plea in abatement, in response to the notice to bar.
A
plea in abatement is a special plea which does not absolutely defeat
the plaintiff's claim and does not deal with the merits of the
case. It is a dilatory plea.
The
defendants insist that plaintiff's claim does not disclose a cause
of action and cannot be pleaded to. The defendants also pleaded that
the second notice to plead issued is irregular and must be struck
off.
I
am of the view that the above issues ought to be dealt with on the
opposed roll. If the judge sitting finds that there is no opposition,
the relief sought could still be granted thereat. A judge sitting on
the unopposed roll has limited time to be expected to deal with
issues raised by both parties. Once it becomes necessary to look at
two sides of a case, it follows that the matter is opposed.
Accordingly
the matter is removed from the roll of unopposed matters and
redirected to the roll of opposed matters.
Sawyer
& Mukushi,
plaintiff's legal practitioners
