Chaza v Chawareva & Another (Civil Appeal SC 576 of 2016; SC 2 of 2018) [2017] ZWSC 102 (26 October 2017)
An appellant barred in the court a quo for failure to file heads of argument has no right of audience before the appellate court; the proper procedure is to seek rescission of the default judgment in the court a quo.
Source-derived case information.
- Citation
- [2017] ZWSC 102
- Parties
- Appellant: Lovemore Chaza; First Respondent: Never Chawareva; Second Respondent: Minister of Local Government Public Works and National Housing
- Court
- Supreme Court of Zimbabwe
- Jurisdiction
- Zimbabwe
- Case Number
- Civil Appeal SC 576 of 2016 ; SC 2 of 2018
- Procedural Posture
- Civil Appeal / Appeal Judgment
- Outcome
- appeal struck off the roll
- Legal Topics
- Default Judgment, Right of Audience, Rescission of Judgment, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lovemore Chaza
Appellant
Never Chawareva
First Respondent
Minister of Local Government Public Works and National Housing
Second Respondent
Procedural Posture
Civil Appeal / Appeal Judgment
Legal Issues
- 1 Whether an appellant barred in the court a quo for failure to file heads of argument has a right of audience before the appellate court
- 2 Whether the judgment a quo given in default can be appealed without rescission
Ratio Decidendi
An appellant barred in the court a quo for failure to file heads of argument has no right of audience before the appellate court; the proper procedure is to seek rescission of the default judgment in the court a quo.
Court Disposition
appeal struck off the roll
Orders
- The point in limine is upheld.
- The appeal is struck off the roll.
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. SC 02/18 |1 Civil Appeal No. SC 576/16 EX TEMPORE LOVEMORE CHAZA v (1) NEVER CHAWAREVA (2) MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING SUPREME COURT OF ZIMBABWE GWAUNZA JA, HLATSHWAYO JA & ZIYAMBI AJA HARARE, OCTOBER 26 2017 M. Mavhiringidze, for the appellant F. Chiriwawadzimba, for the first respondent No appearance for the second respondent GWAUNZA JA: In this matter Counsel for the first respondent raised a point in limine to the effect that the appellant having been barred in the court a quo for failure to file his heads of argument, had no right of audience before this court. She submitted that consideration by the court a quo of the merits of the matter, did not alter the legal position, that in fact the judgment a quo was given in default. Counsel relied for these contentions on a judgment of this court, Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S) where the following was stated at pg 375; “for the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court a quo was unnecessary and consequently of no force or effect. It does not convert the default judgment into a judgment on the merits”. Judgment No. SC 02/18 |2 Civil Appeal No. SC 576/16 None of the authorities cited by the appellant contradict this position. Since it was a default judgment, the proper course of action was for the appellant to have obtained a rescission thereof in the court a quo. Accordingly, this matter is not properly before us and it is our unanimous view that it should be struck off the roll. Notwithstanding that the point in limine was a point of law which could be raised at any time, our view is that each party should bear its own costs. This is because the point was raised for the first time at this hearing, without any prior notice having been given to the appellants. In the result, it is ordered as follows: (1) The point in limine is upheld. (2) The appeal be and is hereby struck off the roll. (3) Each party is to bear its own costs. HLATSHWAYO JA: I agree ZIYAMBI JA: I agree Mavhiringidze & Mashanyare, appellant’s legal practitioners Mapendere & Partners, 1st respondents’ legal practitioners.