Application
for Default Judgment
DUBE-BANDA
J:
This
application was set-down during vacation, i.e. on the Motion Court
for the 17 December 2020.
When
this matter was called, Mr Moyo, counsel for the applicant rose and
made a submission that the papers were in order, and he prayed for an
order in terms of the draft order. Mr Mazibiko, stood up and said he
was representing the 1st respondent. I noted that 1st respondent was
not served with the notice of set down, Mr Mazibuko might have only
become aware of the application because the matter was called out in
his presence in the Motion Court.
I
pointed out to Mr Mazibuko that the 1st respondent was barred and
application was not opposed.
He
was not deterred, he attacked the validity of the service of the
application on the 1st respondent, and attacked the competence of the
application itself. Notwithstanding that he was further advised that
1st respondent was barred, he argued that he was raising points of
law, and in his view a court cannot grant such an order as sought by
the applicant.
On
his part, Mr Moyo contended that the 1st respondent was barred for
want of filing a notice of opposition, and the application was not
opposed, and he submitted that his papers were in order and prayed
for an order in terms of the draft.
After
briefly hearing both counsel, I granted the order sought, couched in
the following terms:
“1.
The provisional judicial management order issued on the 1st day of
March by this court, under cover of HC3455/15 be and is hereby
discharged.
2.
Nyasha Motsi, in his personal capacity, be and is hereby directed to
pay applicant's costs of suit on an attorney and client scale.”
Following
the granting of the order quoted above, Messrs Calderwood, Bryce
Hendrie and Partners addressed an ultimatum to the Deputy Registrar
of the High Court, and I reproduce below the ultimatum in full:
“We
confirm that this matter was on the unopposed roll on Thursday 17
December 2020. We further confirm that the application was granted by
the Honourable Mr Justice Dube-Banda. However, in his granting the
application, the Honourable Judge did not indicate whether he was
granting on the basis that the 1st respondent was barred or on the
basis of the substantive verbal submissions made by both counsel as
to whether the application should be granted.
The
distinction is important as the 1st respondent would like to know the
correct step to take hereafter as in the case of the former, an
application for rescission would have to be filed whilst in the case
of the latter, then an appeal must be filed.
May
you therefore as a matter of urgency clarify with his Lordship which
of the two is the position, if is the latter position, we would be
pleased if his Lordship were to provide his written reasons. As you
would appreciate that there are timelines for filing once one or the
other, we would appreciate a speedy response from your office.”
I
believed that after the brief hearing, I stated that 1st respondent
was barred for want of filing a notice of opposition, and the
application was not opposed.
The
ultimatum containing a lecture from Messrs Calderwood, Bryce Hendrie
and Partners came as a total surprise to me.
However,
if I did not state that I was granting the order sought on the basis
that the 1st respondent was barred and application was not opposed,
the oversight is regrettable and it was not intended.
The
letter from Calderwood, Bryce Hendrie and Partners concludes as
follows:
“as
you would appreciate that there are timelines for filing once one or
the other, we would appreciate a speedy response from your office.”
A
letter to the Deputy Registrar is in essence a letter to the
presiding judge, and in general to demand of a judge to provide “a
speedy response” is rather taking discourtesy to new heights.
The
office of a judge must be respected. It is not about the person of
the judge - it is about the office, it is about the court as an
institution: See Ex Parte Zondo and Others; In Re: Administrator of
JS Moroka and Others v Kubheka and Another (1170/2020) [2020] ZAMPMHC
12 (29 May 2020).
The
brief relevant facts of this matter are on the 1st March 2016, 1st
respondent was placed under provisional judicial management. This is
an application for the discharge of the provisional judicial
management order. The anchor of this application is that the order
was obtained fifty-six months ago, and it has not been confirmed.
It
is contended that the order is a sham designed and calculated to
shield 1st respondent from paying its debts.
Applicant
then sued out this court application on the 12 August 2020. A copy of
the application was served by the Sheriff on the 1st respondent on 9
September 2020. Again, another copy of the application was served by
a clerk in the employ of applicant's legal practitioners on the 8
October 2020.
There
is proof that the Assistant Master of the High Court was served with
a copy of the application.
1st
respondent, on the papers before me, had not filed a notice of
opposition.
The
Assistant Master filed a report, and made the point that she was not
opposed to the order sought by the applicant, and made the point that
the provisional judicial management order must be taken by the court
as dead.
I
then took the view that 1st respondent was barred for failure to file
a notice of opposition and opposing affidavit within the time allowed
by the rules of court, then the application was not opposed.
The
bar against the1st respondent in such circumstances is automatic and
brings about a default.1
I
took the view that, in this application, Mr Mazibuko had no right of
audience before court, because 1st respondent was barred. The effect
of a bar is that while it is in operation, the party barred shall not
be permitted to appear personally or through a legal practitioner in
any subsequent proceedings in the action or suit; except for the
purpose of applying for the removal of the bar.2
It
is clear from Rule 83(b) of the High Court Rules, that once a party
is barred the matter is treated as unopposed unless the party so
barred makes an application before that court for the upliftment of
the bar.
It
is also clear that in making the application to uplift the bar the
party that has been barred can either file a chamber application to
uplift the bar or where this has not been done the party can make an
oral application at the hearing. See Grain Marketing Board v Muchero
SC59/07.
Mr
Mazibuko, was not applying for the removal of the bar. He was
attacking the application.
In
fact, I found his conduct somehow unacceptable, that after I had
pointed out to him that 1st respondent was barred, and that the
application was therefore not opposed, he persisted in argument.
After
considering a number of factors, I refrained from calling him to
order.
I
take the view that such conduct is a deviation from the normal
practice, it is inappropriate and unnecessarily belligerent towards
the court, and it serves no useful purpose in litigation.
In
the result, in deciding this application for default judgment, I did
not factor into the equation Mr Mazibuko's submissions. I concluded
that, the respondents having been duly barred in terms of the rules
of the court, and not having made an application for the upliftment
of the bar, the application was unopposed.
I
took the view that the papers before me were in order, and the order
sought was competent, I then felt inclined to grant the order in
terms of the draft.
Mathonsi
Ncube Law Chambers, applicant's legal practitioners
Calderwood,
Bryce & Hendrie, 1st respondent's legal practitioners
1.
Rule
233(3) of the High Court Rules, 1971 provides that a respondent who
has failed to file a notice of opposition and opposing affidavit in
terms of subrule (1) shall be barred
2.
Rule 83(b) of the High Court Rules, 1971
