MAKONI J: On 26 July 2008, the applicant issued
summons, out of this court, claiming eviction and other ancillary relief
against the respondents. On the same date the summons were served by the Deputy
Sheriff on the second respondent who also accepted service on behalf of the
first respondent. The dies induciae
expired on 6 August 2008.
The
fist respondent entered an appearance to defend for himself and on behalf of
the second respondent on 6 August 2008. He did not serve the notice on the
applicant's legal practitioners. On the morning of 14 August 2008, the
applicant filed an application for default judgment. On 2 September 2008, the
application was returned with a comment from a Judge that an appearance to
defend was entered timeously on 6 August 2008. In the afternoon of 14 August 2008,
the first respondent served the notice on the applicant's legal practitioners.
On
20 August 2008 the applicant's legal practitioners wrote a letter to the first
respondent pointing out the irregularities of the notice of appearance to defend.
The 1st point was that the
respondents had not complied with or r 49 of High Court of Zimbabwe Rules
(1979) (The Rules) which provides for service of a notice of appearance to
defend within 24 hours of the entry of appearance to defend. The second point
was that the notice did not comply with Form No. 8 in that it did not state the
date on which the summons was served. The last point was that the respondents
did not comply with S 51 of the High Court Act [Cap 7:06] (The Act) as the second respondent had entered an
appearance to defend for both himself as well as the second respondent, a duly
registered company. There was no response to this letter by the respondents.
On
24 September 2008 the applicant filed the present application whereby he seeks
an order that the notice of appearance to defend filed by in these proceedings
on 6 August 2008 be struck off and that the registrar be directed to expunge it
from the court record. He also seeks costs from both respondents jointly and
severally.
The
applicant contends that he is proceeding in terms of a direction given by
GILLESPIE J in Founders Building Society
v Dalib (Pvt) Ltd and Ors 1998(1) ZLR 526 at 534. The directive was to a
following effect
“In any action, where the
plaintiff's legal practitioner contemplates an application for default
judgment, but is aware of some proceedings being taken by the defendant which
is an attempt at opposition but does not constitute due and regular entry of
appearance to defend, he ought to address to the defendant or his legal
practitioner due warning of the irregularity of the procedural step. Having
done so, he may then choose between -
(a)
an
application for default judgment; or
(b)
an
application, on notice to defendant to struck out the irregular proceeding p
534C”.
It was submitted on behalf of the
applicant that the first respondent's notice was
irregular in that it was not
properly delivered. It was not served on the applicant's attorney within 24
hours of entry as is provided for in r 49. It was not in Form No. 8 in that it
did not state the date on which the summons was served. No proof of service was
filed in accordance with R 42B.
It
was further submitted that an irregular entry of appearance triggers the
choices available to the plaintiff as directed by GILLESPIE J in the Founders
Building Society case supra.
The
applicant also referred to HPP Studios
(Pvt) Ltd v Associated Newspapers of Zimbabwe (Pvt) Ltd 2000 (1) ZLR
318 at 334 in support of its contention. It was submitted that ADAM J. was far
less generous than GILLESPIE J. According to ADAM J, a plaintiff who has given
notice of the irregular appearance and is ignored should not be burdened with a
further court application to strike out, before he can obtain default judgment.
The
second respondent concedes that the notice was not served timeously as is
provided for in terms of the rules but argues that that does not invalidate the
notice. He submitted that the applicant fails to appreciate that the criteria
for determining whether the notice is valid is the issuing and entry of the notice in the Appearance Book kept by
the Registrar and not service on the plaintiff.
The
first issue for determination is whether the notice is irregular for want of
service on the plaintiff's legal practitioners.
Rule
49 provides that within twenty four hours of the entry of appearance to defend,
written notice thereof should be served on the plaintiff or his legal
practitioner at the plaintiff's address for service and such notice shall be in
Form No. 8. The rule is couched in peremptory terms. It does not give the
defendant a choice. It is couched in such a manner to assist in the expeditious
resolution of disputes and to avoid incurring unnecessary costs. If such notice
is not served, the plaintiff, after the expiry of the dies induciae, might apply for default judgment as what happened in casu. In my view, such notice would
be irregular.
The point is made in Herbstein and Van
Winsen, The Civil Procedure of the Supreme Court of South Africa 4th
Edition at p 431 where it is stated:-
“A notice of intention to defend
will be irregular if the defendant,
having filed the original notice
with the registrar, fails to serve a copy on the plaintiff on his
attorney”.
It is therefore my finding that the
notice is irregular.
Having
determined that the notice is irregular, the next issue is whether such notice should
be struck off the record.
Rule
48 provides that a defendant wishing to defend an action must enter an
appearance to defend in the manner prescribed in the Rules. Rule 49 provides
for service of the notice on the plaintiff or his legal practitioners. Rule 50
provides the sanction for failure to enter appearance in terms of R 48.
The
rules are silent as to the sanction for failure to serve the notice in terms of
R 49. Mr Mufusire conceded the point but argued that the sanction has been
interpreted in case law. He referred to the Founders Building Society and HPP
Studios cases supra.
In
my view, the two cases can be distinguished from the present matter. In Founders
Building Society supra, the defendant
after having been served with the summons did not enter appearance in the form
prescribed by the rules but filed a notice of assumption of agency. On the same
day the defendant, through his attorneys, filed a request for further
particulars. The plaintiff's attorney then simply ignored these two proceedings
and applied for default judgment. No
appearance to defend was entered.
In
HPP Studios (Pvt) Ltd, supra the
facts are that on 18 June 1999 after the respondent had been automatically barred
a notice of appearance to defend was served on applicant's legal practitioners.
It stated incorrectly that appearance to defend had been entered on 17 June
1999, the last day on which they could have done so. The appearance book
revealed that appearance to defend was entered on 18 June 1999. The appearance to defend was entered out of
time.
In
casu, the appearance to defend was
not only entered but was entered timeously. The applicant did not refer the
court to a case whereby an appearance to defend was entered timeously but was
not served in terms of the rules. The two authorities cited by the applicant do
not assist the court as they are clearly distinguishable from the present
matter. The rules are silent on the issue of what the court can do with a defendant
who enters appearance to defend timeoulsy but does not serve the notice as
provided for in the rules.
Herbsten
and Van Winsen supra a p 431 states:-
“in the event of failure to serve
the notice on the plaintiff's attorney's the plaintiff will be entitled to
assume that notice of intention to defend has not been given. If however, he
does so and moves for judgment, the court will not grant judgment, but will
order the defendant to pay the wasted costs occasioned by his omission”.
I
associate myself fully with the above remarks.
The
applicant's only remedy lies in a claim for costs for the application for
default judgment. The irregularity does not warrant the punishment of having
the notice of appearance struck off and that it be expauged from the record. Such a relief would be too drastic in view of
the fact that the notice was entered timeously. In view of the above the
applicant's argument on this point cannot succeed.
The
second issue is whether the notice of appearance to defend entered by the first
defendant in respect of the second respondent is properly before the court. It
was submitted on behalf of the applicant that the second respondent, a juristic
person, has no right to be heard in court except through legal representation.
The
first respondent, in his notice of opposition dealt with the above issue in
para 4. He did not plead any facts which would establish a basis why he entered
appearance to defend on behalf of the second respondent. He gave what he
considers to be the law relating to the issue at hand.
In
terms of s 51 of the High Court Act [Cap
7:06] and S 9 of Legal Practitioners Act [Cap 27:7], the first respondent has no right of audience before
this court except through legal representation. This position has been laid
down in a number of cases in this jurisdiction. See Diana Farm (Pvt) Ltd v Madondo N.O. & Anor 1998(2) ZLR 410(H), Pumpkin Construction (Pvt) Ltd v Chikaka 1997(2)
ZLR 430(H) and also Lees Import &
Export (Pvt) Ltd v Zimbank 199(2) ZLR 36(S).
In the Less Import case, supra the court recognised exceptions to
the rule that a corporate body can appear through its alter ego. One has to seek leave of the court to appear
on behalf of a corporate body. The same technicality that bedevils the first
respondent in the main matter also affects it in the present proceedings. It
has no right of audience and is not properly before me. I cannot therefore deal
with the issue relating to the first respondent.
In
view of the above the applicant cannot succeed.
Accordingly
it is ordered :-
1.
that
the application is dismissed.
2.
Applicant
to pay the second respondent's costs.
Scanlen
& Holderness, applicant's legal
practitioners
