AFRASIA Bank Zimbabwe Ltd v Chidakwa (HC 5295 of 2014) [2015] ZWHHC 177 (10 February 2015)

1 HH 177-15 HC 5295/14 AFRASIA BANK ZIMBABWE LIMITED versus SIMBARASHE CHIDAKWA HIGH COURT OF ZIMBABWE TAGU J HARARE, 11 February 2015 Application for Default Judgement F Siyakurima, for plaintiff O Kadare, for defendant TAGU J: After representations from both sides I granted a default judgment in favour of the plaintiff. The defendant’s lawyer has requested for the written reasons. These are they. This matter was set for the Pre-Trial Conference on 4 February 2015 before this court at 1530 hours. Due to other commitments the matter was postponed to 11 February 2015 at 1530 hours with the full knowledge of the parties. On 11 February 2015 at 1530 hours Mr F. Siyakurima appeared with a representative of the plaintiff. Mr O. Kadare appeared alone without his client. The court queried why the defendant had not filed his Pre –Trial Conference papers. In response to the court’s query Mr Kadare indicated that he had encountered problems with his client who was out of the country on business. However, he said he had instructions from his client to proceed in his absence. The court brought to his attention that in view of his client’s plea to the plaintiff’s claims it was imperative that he should have attended with the view of curtailing the proceedings. He insisted that his client feared that if he attended the Pre-Trial Conference he risked losing his employment. Mr F. Sayakurima, on behalf of the plaintiff then made an application to have the defendant’s defence struck off, and for default judgment to be granted in favour of his client. The basis of his application being that the defendant had not been excused by this court. He submitted that on 6 November 2014 they received a notice from the Registrar of this court directing them to hold a round table conference in terms of the Rules of this court, and to appear on 4 of February 2015 for a Pre –Trial Conference. Pursuant to the Registrar’s HH 177-15 HC 5295/14 directive they had a meeting on 19 November 2014 in order to hold a round table conference. The meeting was then postponed indefinitely at the request of the defendant’s counsels because the legal practitioners for the defendant could not locate their client. The defendant’s legal practitioners undertook to revert back to the plaintiff’s legal practitioners by the 28th November 2014 for purposes of holding their round table conference. Despite their undertaking to revert back to them, the defendant and his legal practitioners failed to come back until the notice set by the Registrar arrived. In his view, the defendant was in wilful default despite being served with the notice to attend the Pre-Trial Conference. Mr Kadare told the court that indeed a round table conference had been arranged, although he was not the one who attended. He confirmed that the defendant was aware of the date of the Pre- Trial Conference, but was unable to attend due to his stringent work schedule. Pre-Trial Conferences are held in terms of Order 26 r 182 of the High Court Rules 1971. Subrule 4 says- “(4) The registrar, acting on the instructions of a judge, may at any time on reasonable notice notify the parties to an action to appear before a judge in chambers, on a date and at a time specified in the notice, for a pre-trial conference, or a further pre-trial conference, as the case may be, with the object of reaching agreement on or settling the matter referred to in subrule (2), and the judge may at the same time give directions as to the persons who shall attend and the documents to be furnished or exchanged at such conference.” In casu, the notice sent by the Registrar dated 13 January 2015 invited the legal practitioners to attend the Pre-Trial Conference promptly with their clients on 4 February 2015 at 1530 hours before a judge in chambers. On 6 November 2014 the Registrar had sent another note to the parties which read as follows- “RE: AFRASIA BANK LTD ZIM V S. CHIDAKWA The above matter refers. It is directed that parties meet for a round table discussion, in a bid to settle the matter or reach an agreement on possible ways of expediting or curtailing the duration of the trial, before attending the above Pre- Trial Conference. The parties should consider the matters provided for in R182 (2) of the High Court Rules during their round table discussions.” It is clear therefore, that the legal practitioners were supposed to comply with such directions and to appear before a judge with their clients. The defendant was thus not excused from attending. The defendant was not even cooperating hence the failure by his legal practitioners to file Pre-Trial Conference documents before the date of the hearing. The documents were only tendered when the court raised the issue. Subrule 11 provides a remedy to the party who attends the Pre- Trial Conference against the defaulting party. The subrule says- HH 177-15 HC 5295/14 “(11) A judge may dismiss a party’s claim or strike out his defence or make such other order as may be appropriate if- (a) the party fails to comply with directions given by a judge in terms of subrule (4), (6), (8) or (10) or with a notice given in terms of subrule (4); and (b) any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order.” In this case the legal practitioner for the plaintiff applied at the pre-trial conference to have the defendant’s defence struck out and to grant a default judgment in favour of the plaintiff in terms of the summons. Such an application has merit. The plaintiff is entitled to the relief sought. In the result, I make the following order- The defendant is in default, default judgment is granted in favour of the plaintiff in terms of the Summons. Sawyer and Mkushi, plaintiff’s legal practitioners G. Machingambi, defendant’s legal practitioners