ZIYAMBI JA: In the court a quo
the respondent was the plaintiff whilst the appellant was the defendant.
The respondent issued summons against the appellant in the High Court for the
following:
“Payment of:
(i) US$9
800-00 being the costs of replacing the motor;
(ii) Payment
of US$208 849-00 in respect of damages suffered as a result of the loss of the
plaintiff's crop;
(iii)
Payment of US$200 000-00 being damages in respect of mental anguish, anxiety
and depression;
(iv)
Costs of suit.”
The appellant filed its plea and the pleadings followed
their natural course to a Pre-trial conference which was set down for 23
September 2010. At this hearing the learned Judge was of the view that
the parties assisted by their legal practitioners should attempt to reach a
settlement failing which she would refer the matter to trial. She
accordingly directed that the parties and their legal practitioners should
convene a round table conference on their own for that purpose on 18 October
2010. For this reason the learned Judge then, with the concurrence of the
legal practitioners of the parties, postponed the matter to 21 October 2010 for
a second Pre-trial conference. The appellant was then represented by Mr Vote
Muza.
On 21 October 2010, neither the appellant nor its
legal practitioner Mr Muza attended at the pre-trial conference and
the appellant's defence was struck off with costs. The learned Judge's
note reads, in relevant part, as follows:
“For PLAINTIFF: K Ncube with plaintiff
For DEFENDANT: S A Tawona
without client
1. RESULT: The defendant is not
in attendance. Its legal practitioner was unable to proffer a reasonable
excuse for the failure by the defendant to send a representative to attend the
PTC.
2. Mr Ncube submitted
that this was the second occasion on which the defendant failed to attend the
PTC without a reasonable explanation. The parties were supposed to have
met yesterday to discuss settlement and plaintiff and his legal practitioner
waited for them for 30 minutes. A call then came from Muza to
say that his client could not come because [of] a course in Kadoma.
3. The defendant has been
dilatory in dealing with this PTC and having no explanation for its
non-attendance on 2 occasions. I find that it is in default. The
plaintiff has opposed the postponement sought and has applied for the defence
to be struck off.
IT IS ORDERED
1) That the defence and plea by
the defendant be and is hereby struck out.
2) That the matter is referred
to the unopposed roll for proof of damages by the plaintiff.”
The appellant filed an application in the High Court
for the reinstatement of the plea. BERE J dismissed the application. This
is an appeal against that dismissal.
The grounds of appeal raised 5
issues. They are:-
1.
That the court a quo erred in failing to determine the issue before it
which was that the plea had been struck out in error;
2. That the court a
quo erred in concluding that the plea could properly be struck off
notwithstanding that the appellant's legal practitioner was present and sought
a postponement on account of the unavailability of the appellant's
representatives;
3. That the court erred in
failing to conclude that the presence of the legal practitioner as well as the
defence on the merits constituted good and sufficient cause entitling it to
grant reinstatement;
4. That the court erred in
concluding that the affidavit of Judith Tsamba attached to the answering
affidavit could not be taken into account without leave of the court
5. That the court misdirected
itself in not subjecting the huge claim made by the respondent, which claim
raises new issues of law to a full trial in properly contested adversarial
proceedings.
THE APPLICATION
The founding affidavit was
attested to by the appellant's legal practitioner Vote Muza. He
averred that the matter was initially set down for a pre-trial conference by
GOWORA J on 23 September 2010 but was postponed at the appellant's instance.
The parties were to meet on 18 October 2010 for a round table conference after
which they would attend the pre-trial conference which was scheduled for 21
October 2010. However, on a date not given the engineer, one Steven
Mbavavira, indicated that he was to sit for professional exams during the week
beginning 25 October 2010 and would not be available for the meeting on 18
October 2010 as he had to study. He was anxious to have the meeting
held so he telephoned the appellant's secretary and requested the attendance of
another engineer. He then agreed with Mr Ncube, the respondent's
legal practitioner, that the meeting would be held on 20 October at 3pm.
On the morning of 20 October he telephoned Mr
Mbavavira intending to discuss certain issues in preparation for the
meeting. During this telephone conversation it became clear to him that
it would not be possible for any other person to attend the meeting. He
then took the decision that Mr Mbavavira's attendance was necessary if the meeting
was to be meaningful and decided to ask Mr Ncube to defer the meeting
to a date after Mbavavira's examinations.
He called Mr Ncube after 2pm (the meeting
was scheduled for 3pm) but Ncube was out of office and he spoke to his
male secretary (name not given). He explained to him that he sought to
have both the meeting and the pre-trial conference postponed in view of the
developments surrounding the matter. He also indicated to him that his
firm would attend to the postponement of the pre-trial conference. The
secretary seemed to appreciate his position. The meeting was accordingly not
held and no complaints having been made by Mr Ncube, he felt that
“everything was in place”.
It is to be noted that he did not enquire as to whether Mr Ncube
had received his message and he did not attend the meeting scheduled for
3pm. One would have thought that he would have done so if only to see Mr Ncube
and speak with him personally about the dilemma in which he found
himself.
The next day he asked his assistant Mr Tawona (he did not
go himself and gives no reason for his non- attendance) to attend upon MRS
JUSTICE GOWORA and move a postponement. He explained to Tawona that the
plaintiff would not be in attendance (of this he had no confirmation) as he had
already called Mr Ncube's office and undertaken to postpone the matter
in his absence.
I quote from para 15 of the founding affidavit:
“15 Mr Tawona was however surprised, to find that Mr Ncube
was in attendance. Mr Ncube's position as communicated to the judge was that it
was only the meeting which had been deferred but as far as he was aware the
pre-trial conference would not be postponed. The only reasonable inference that
I can draw from what he told the judge is that my message had not been properly
communicated to him. Indeed I would be loath to make riling accusations against
a person of Mr Ncube's standing and experience. The fact of the matter however,
is that what he communicated to the court is not what I had communicated to his
office and is a position that I do not share.
The judge was persuaded by Mr Ncube's explanation and
rejected that of Mr Tawona, who by the way did not expect to be arguing the
issue. The judge then found that applicant was in default, although its legal
practitioner was in attendance. I verily believe that in matters before the
High Court, corporates appear represented by their legal practitioners. I
assert that the court made its determination not on the correct version of the
facts. I will not rejoice in locating and apportioning wrong and blame. I would
rather locate the error. The error was that the message that I communicated
to Mr Ncube's office is not the one transmitted to the judge and in all
probability to Mr Ncube as well. I however, state this as fact and state
it on my oath of office. My communication was to the effect that the applicant
wanted both the meeting and the conference postponed. That was my communication
and I stand by it.
It is therefore clear that the order made by the court was
made in error. Vital information was not placed before it. On the basis set out
above, I would urge the court to find that reinstatement ought to be decreed as
a matter of course.” (Emphasis added).
The application was opposed by the respondent. He
questioned the bona fides of the application. The appellant, he
alleged, had defaulted at two meetings and two pre-trial conferences that were
set to resolve the matter. The appellant had failed to show good and
proper cause for the rescission of the order of GOWORA J. In particular,
no affidavit had been filed by Stephen Mbavarira to confirm the averments made
by Vote Muza. There was no evidence that he was sitting for
professional exams and even if he was so sitting there had to be someone from
the institution who could have attended at the pre-trial conferences and
meetings. The persistent defaults by the appellant and its legal
practitioner are an indication that they were not interested in having the
matter resolved expeditiously.
THE GROUNDS OF APPEAL
Dealing with the first and second
grounds, two submissions were made. The first is that the legal representative
of the appellant was present and it was open to the court to express its
displeasure by different means other than striking out of the plea.
It
may be noted here that the purpose of the pre-trial conference is to attempt to
reach settlement between the parties and, where this is not possible, to
identify issues for trial with a view to curtailing the proceedings. This
is the reason why the presence of both the parties and their legal
practitioners are required thereat. Where a legal practitioner attends a
pre-trial conference set by a Judge without his client he must have his
client's instructions to take decisions on its behalf. The pre-trial conference
is not a formality. It is an essential part of the proceedings and the
Judge will have put aside other work and studied the pleadings, in order to
prepare for the conference. It is therefore disrespectful in the extreme
to wait until the time scheduled for the conference to advise the court that
the parties are unable to attend. In casu the legal practitioner
who appeared on behalf of the appellant had no knowledge of the appellant's
case, was not prepared to argue it and was there only to seek a postponement.
In such circumstances it cannot be said that the appellant was represented at
the pre-trial conference.
The second contention under
this head was that the court which struck out the plea acted on wrong
information. It was submitted that the court's judgment rested on the
“uninformed” views of Tawona who had not checked the position and that the
details of Muza's conversation with Mr Ncube's secretary were
not placed before the court.
The first thought that comes to
mind is that if, as was submitted on behalf of the appellant, Tawona
was its representative, why was he uninformed? Why did he not have proper
instructions? And if Muza was the one possessed of the necessary
information and seized with the conduct of the case, why did he not attend the
pre-trial conference and take decisions on behalf of his client if the latter
was for good reason unable to attend? The founding affidavit is silent on why Muza
did not himself attend to the postponement.
In any event, can it
be said that had the Judge been informed of Muza's conversation with Ncube's
secretary she would not have given the judgment that she did? I think
not. Any legal practitioner worthy of his calling will know that he
cannot rely on a conversation with a secretary, without more, to excuse him
from attendance at a pre-trial conference in defiance of a Judge's
directive. The fact that Muza made no effort to ascertain that Ncube
had received his message and the additional fact that he refrained from
attending the pre-trial conference would seem to suggest a considered decision
by both the appellant and Muza to play for time by getting the
pre-trial conference postponed.
Rule 449 of the High Court Rules
permits the High Court to rescind, vary or correct a decision erroneously
given. While the learned Judge made no specific reference to the issue of
error on the part of the GOWORA J, I am inclined to agree with the respondent
that this application was not based solely on an alleged error by the learned
Judge. The allegations made therein, while including the allegation of
error, were also of a general nature explaining the appellant's absence at the
pre-trial conference and stating the prospects of success as well as the
reasons why the matter should go to a full trial. This is not a case
where there existed a valid cause for the absence of the appellant and Mr Muza
which cause was unknown to the Judge at the time the order striking out the
plea was made. Indeed no valid reason was advanced before the court a
quo which would persuade it that the judgment was erroneously given.
Further, the explanation given to GOWORA JA conflicted with that given by Vote
Muza in the founding affidavit.
In any event, for such an
application to succeed the error would have to be obvious on the papers.
If for instance, both the appellant and its legal practitioner had been
involved in a serious accident on their way to the pre-trial conference unknown
to the Judge and the respondent's legal practitioner, it would have been quite
obvious to the court that its judgment was granted in error. It follows
that I do not agree with the submission by Mr Mpofu that the plea was
“clearly” struck out in error.
What is apparent from
the judgment of the court a quo is that the court considered the
totality of the circumstances in which the plea had been struck out and came to
the conclusion that the appellant had shown no good cause for the rescission of
the judgment and the reinstatement of the plea.
With regard to the third ground of appeal, the
finding that the appellant was in effect unrepresented, leaves only one
question to be considered and that is whether the court ought to have granted
reinstatement in view of the defence on the merits. The learned Judge
reasoned as follows:
“In the instant case and in a desperate effort to lay the
foundation of the applicant's bona fides in its defence, the deponent
has completely denied liability on the part of the applicant.
Unfortunately the filed pleadings do not quite support him. It will be
noted that on 16 January 2010, the applicant wrote to the applicant complaining
about the burnt electric motors which had been caused by low voltage leading to
disruption of the supply of electricity at the respondent's plot, which
disruption is the cause of his action in the main matter. In its response
the applicant, through its secretary one J Tsamba partially accepted blame
through its letter of 27 January which was to the following:
“We acknowledge receipt of your letter dated 6
January 2010 whose contents have been noted.
Please be advised that it was
established that a 100 KVA transformer which was available by then was
installed in 2002 at Exwick Plots and could cater for the load. Due to the
increase in the load over the years, the transformer capacity could not match
the load.
To ensure adequate supplies an
increase in transformer capacity will be made from 100 KVA to 315 KVA.
The LT line will be uprated from 50mm2 HAD to 100mm2 HAD
by 15 February 2010.
We hope this addresses your
concerns.” (my emphasis)
Compare this conciliatory gesture which in my view is a
partial admission of liability with the fully fledged denial of liability that
runs through Vote Muza's founding affidavit filed for and on behalf of the
applicant. This conflicting approach in dealing with this matter neither
edifies the applicant's defence nor portrays Vote Muza in good light. If
anything it casts reasonable doubt on the bone fides of the
application filed.
In para 11 of his notice of opposition to the
application the respondent had challenged the applicant why its entire
institution had failed to nominate a representative to represent it at the
pre-trial conference of 21 October 2010. In response, and in his answering
affidavit, Vote Muza then grudgingly referred to the affidavit of Judith Tsamba
“filed herewith.”
Since the appellant's case must stand or fall
on its founding affidavit, the affidavit of Judith Tsamba was correctly
rejected having been appended to the answering affidavit without leave of the
court.
I agree with the
observations of the court a quo, that through its conduct and via
its chosen counsel, the appellant deprived itself of the opportunity to clearly
ventilate the issues in fully contested adversarial proceedings. It has
only itself to blame if the result is not to its satisfaction. The conclusion
reached herein also disposes of the fourth ground of appeal.
With regard to ground 5,
the issue of the magnitude of the claim is a matter for determination by the
court before which the matter is placed on the unopposed roll. It cannot on its
own constitute good and sufficient cause for setting aside the judgment entered
in default.
In the result no good grounds have been established
for interference by this Court with the judgment of the court a quo.
Accordingly the appeal is dismissed with costs.
GARWE JA:
I agree
OMERJEE
AJA:
I agree
Muza & Nyapadi,
appellant's legal practitioners
