NDOU J: This is an application for
default judgment on account that the respondent has been served. On the eve of the hearing of this application
the respondent filed an application for the upliftment of the bar. The salient facts of this case are the
following. The applicant issued out
summons on this court on 15 December 2008 wherein he claimed damages against
the respondent. The summons were served the
respondent on 16 December 2008. The dies induciae expired on 6 January
2009. The respondent's legal
practitioners filed an appearance to defend a day out of time on 7 January
2009. On 8 January 2009 the applicant's
legal practitioners became aware of this fact and addressed a two sentence
minute to respondent's legal practitioners in the following terms:
“We thank you for appearance to
defend issued on 7th January 2009.
It is out of time and thus invalid.”
This
issue was brought to the attention of the Deputy Registrar of this court who in
turn returned the appearance to defend to respondent's legal practitioners on
23 March 2009 with a note couched in the following terms:
“I refer to the above-mentioned
matter and return herewith your notice of appearance to defend filed on 7
January 2009. The dies induciae expired on 6 January 2009. In terms of Rule 50 of the High Court of
Zimbabwe Rules as amended, a defendant who fails to enter appearance shall be
deemed to be barred. It is trite that a
defendant has to enter appearance before the expiry of the dies induciae.”
The
respondent's legal practitioners wrote to the applicant's legal practitioners
on 5 February 2009 undertaking to notify them of the respondent's position
“next week”. This did not happen and
about a month later applicant's legal practitioners sent a reminder on 26
February 2009 and threatened.
“If therefore, we do not hear from
you by the 5th March 2009 – exactly one month (and a week) from your
said letter – we shall proceed to apply for default judgment. We hope it will not have to come to that.”
The
respondent did nothing and on 4 March 2009 the applicant's legal practitioner
wrote to respondent's legal practitioners. “ We are proceeding with our
application for default judgment.” The
respondent did nothing until 24 March 2009 when the legal practitioners wrote
to the applicant's legal practitioners as follows:
“Sincere apologies for any
inconveniences, as far as the above matter is concerned. Our client sought a second opinion from
another legal practitioner and we are still waiting for the outcome. Please bear with us and we really appreciate
your patience.”
The
applicant's legal practitioners responded on 25 March 2009 as follows:
“The matter is now beyond
redemption. Our letters have been
ignored and your client is taking his “sweet time” to furnish you with
instructions. No urgency at all is being
exhibited by either of you. We are thus
proceedings in our client's best interests.”
Once
more the respondent did nothing until 14 April 2009 when the legal
practitioners addressed a minute to the applicant's legal practitioners in the
following terms:
“We
refer to our last letter dated 24th March 2009.
This is to inform you that our
client has received the second opinion and we will be advising you of its final
decision next Monday the 20th of April 2009, so that we can all know the way
forward.”
Nothing happened on 20 April
2009. The applicant's legal
practitioners responded on 20 April 2009:
“You totally surprise us. Your client is barred. We told you we are applying for default
judgment. You have ignored that and not
even applied to uplift the bar. You
obviously know what you are doing.
Our only interest though in your
client's decision today will be in whether they are prepared to pay what our
client has claimed without need to execute.”
The
respondent did nothing until this matter was set down and on 12 May 2009 they
filed an application for upliftment of the bar.
This was only done as direct result of the set down of this matter. The respondent seeks postponement of this
matter pending the hearing of the application for the upliftment of bar. It has taken the respondent about four months
to file the application for upliftment of the bar. Ms Mkwananzi,
for respondent, submitted that the postponement for the respondent to consider
second legal opinion and decide whether to settle or pursue the application for
the upliftment of the bar. Mr Ncube, for the applicant, persists with
the position that the respondent has been given more than sufficient time (and
advice) to apply for the upliftment of the bar but they chose not to do so
timeously. Therefore
the court should not indulge the respondent.
As the respondent is barred, the applicant submit that the default
judgment be entered in its favour.
From
what I have sketched above, it is evident that the respondent is litigating at
a pace that is slower than a tortoise's.
There is a flagrant disregard of the times set in the Rules. The correspondence from the other side is attended
to at the respondent's leisure. Does the
respondent's case merit postponement in such circumstances? Can this conduct be dealt with by way of a
postponement coupled with a punitive order for costs? It is trite granting a postponement in such
circumstances is within my discretion.
However, I have to exercise this discretion judiciously. I have outlined what has transpired in this
case in a detailed fashion by design.
The facts clearly show that the respondent's lackadaisical approach in
these proceedings. Such lacklustre way
of litigating comes at a price. The long
and short is that such a litigant risks a default judgment made against or a
postponement coupled with punitive award of costs. The respondent has been dilatory in answering
the applicant's claim. Although I am
disinclined to allow the respondent to abuse the court process, I propose to
allow it one last chance to put its house in order. This, as alluded to will come at a cost, and
will also be coupled with conditions that will act as a major disincentive to
the respondent.
Accordingly,
I hereby make an order in the following terms:
(1) Matter
be and is hereby postponed to 10 July 2009 for the respondent to have its
application for the upliftment of the bar under HC 727/09 determined.
(2) In
the event that the respondent fails to comply with paragraph (1) above the
matter shall be regarded as unopposed and set down on the unopposed motion roll
without notice to the respondent.
(3) The
respondent is ordered to pay costs of this hearing on the legal practitioner
and client scale.
Coghlan &
Welsh, applicant's legal practitioners
Joel Pincus, Konson & Wolhuter,
respondent's legal practitioners
