Sibanda v Siziba and Ors (HB 94 of 2007) [2007] ZWBHC 94 (12 September 2007)
The first defendant's complete failure to comply with pre-trial procedures, despite ample notice and without valid explanation or application for indulgence, justifies striking out the defence to ensure effective litigation management.
Source-derived case information.
- Citation
- [2007] ZWBHC 94
- Parties
- Plaintiff: Kumbula Sibanda; 1st Defendant: Thabani Siziba; 2nd Defendant: Master of the High Court – Bulawayo; 3rd Defendant: Director of Housing & Community Services – Bulawayo; 4th Defendant: Deputy Sheriff – Bulawayo
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HB 94 of 2007
- Procedural Posture
- Civil / Pre Trial Conference Ruling
- Outcome
- first defendant's defence struck out
- Legal Topics
- Pre Trial Conference, Striking Out Defence, Non Compliance With Court Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kumbula Sibanda
Plaintiff
Thabani Siziba
1st Defendant
Master of the High Court – Bulawayo
2nd Defendant
Director of Housing & Community Services – Bulawayo
3rd Defendant
Deputy Sheriff – Bulawayo
4th Defendant
Procedural Posture
Civil / Pre Trial Conference Ruling
Legal Issues
- 1 Whether the first defendant's failure to comply with pre-trial procedures warrants striking out the defence
Ratio Decidendi
The first defendant's complete failure to comply with pre-trial procedures, despite ample notice and without valid explanation or application for indulgence, justifies striking out the defence to ensure effective litigation management.
Court Disposition
first defendant's defence struck out
Orders
- The first defendant’s defence is struck out.
- The plaintiff is given leave to set down the matter on the unopposed roll.
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. HB 94/07 Case No. HC 238/07 KUMBULA SIBANDA Versus THABANI SIZIBA And MASTER OF THE HIGH COURT – BULAWAYO And DIRECTOR OF HOUSING & COMMUNITY SERVICES – BULAWAYO And THE DEPUTY SHERIFF – BULAWAYO IN THE HIGH COURT OF ZIMBABWE BERE J BULAWAYO 4 & 13 SEPTEMBER 2007 Tsvangirai for the plaintiff B Moyo for the 1st defendant BERE J: This matter was initially set down for a pretrial conference on 3 September 2007 and was by consent rolled over to 4 September 2004 for same. It is not in dispute that on 1 August 2007 the plaintiff’s legal practitioners duly served a notice of set down on the defendants’ legal practitioners who acknowledged receipt of the said notice on the 1 August 2007 – a month before the set down date. In preparation for the pretrial conference the plaintiff filed both his synopsis of evidence and proposed issues. The defendants and in particular the first defendant (the principal defendant) filed no such documents. There was no cogent explanation given as to non compliance with the court rules except the averment that there were administrative problems encountered in the administration of the estate in question. There was no application made by the first defendant’s counsel to seek the court’s indulgence to put things right. Instead, the first defendant’s counsel dwelt at length on the substantive issues involved when in fact his papers were not in order. What further compounds this matter is that the first defendant did not attend the pretrial conference hearing. Instead, it was the first defendant and one alleged Judgment No. HB 94/07 Case No. HC 238/07 beneficiary who attended. The alleged beneficiary is not party of the cited defendants. In litigation, there comes a time when the court must adopt a robust approach so as to encourage guided litigation. A legal practitioner who is given a month’s notice for the holding of a pretrial conference and does nothing – completely nothing in preparation of same must expect no protection from this court. Such limping service to clients cannot be rewarded by this court. Consequently, it is ordered as follows: That the first defendant’s defence be and is hereby struck out. That the plaintiff be and is hereby given leave to set down this matter on 1. 2. the unopposed roll. 3. That costs be dealt with in the main application. Dazinger & Partners, plaintiff’s legal practitioners Dube & Partners, 1st defendant’s legal practitioners