Trustees of the Koefman BrOrs Trust t/a Koefman BrOrs v Rafael Gruer t/a Rado Arts (HH 116 of 2004) [2004] ZWHHC 116 (11 May 2004)

HH 116/2004 HC 10679/03 THE TRUSTEES OF THE KOEFMAN BROTHERS TRUST t/a KOEFMAN BROTHERS versus RAFAEL GRUER T/A RADO ARTS HIGH COURT OF ZIMBABWE MAKARAU J HARARE, 12 May 2004. Mr Masterson, for the applicant. Respondent in default. Unopposed Application MAKARAU J: The issue that falls for determination in this matter is whether an opposed application in which one party is barred for failing to file heads of argument in terms of r238 (2) (b) may be set down on the unopposed roll in terms of r223 (1). The applicant herein filed an application for summary judgment on or about 15 January 2004. The application was timeously opposed. The applicant filed an answering affidavit, leave for which was sought in the application before me. I shall deal with this aspect of the application in due course. On 23 March 2004, the applicant filed Heads of Argument in the matter in terms of r 238(1). This rule provides that: “If at the hearing of an application, exception or application to strike out the applicant or excipient, as the case may be, is to be represented by a legal practitioner­ a) before the matter is set down for hearing, the legal practitioner shall file with the registrar heads of argument clearly outlining the submissions he intends to rely on and setting out the authorities, if any which he intends to cite; ………………………………..” b) It is not clear on the papers before me when the heads were served upon the respondent in terms of r 238(1) (b). Mr. Masterson has submitted that the time allowed the respondent to file heads has lapsed. I have no reason to disbelieve him although procedurally, I should have HH 116/2004 HC 10679/03 requested for proof of service to be furnished. Despite the absence of proof of service of the heads upon the respondent, I shall proceed to express my views on the issue raised by Mr Masterson as I consider it an important aspect of the practice of this court. On 5 May 2004, the applicant requested that the matter be set down on the unopposed roll in terms of r 223. No notice of the set down was given to the defaulting respondent. At that time, the application had not been set down on the opposed roll. At the hearing of the application, Mr Masterson made submission for the unusual step that he had taken of setting down the matter on the unopposed roll. His argument was quite forceful and compelling and should induce the Rules Committee to reconsider the provisions of the High Court rules as they relate to the set down of opposed applications. Mr Masterson submitted that the respondent is barred for want of filing heads of argument. He went on to suggest that since the respondent is automatically barred in terms of the rules, the matter is now unopposed and there is no rule barring the applicant from having it enrolled on the unopposed roll. I shall deal with each of his submissions. A RESPONDENT WHO DOES NOT FILE HEADS OF ARGUMENT IN TERMS OF R 282(2) IS AUTOMATICALLY BARRED. This is trite as it is specifically provided for under r 238(2b) for all to see in the following terms:­ “ Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.” The effect of the bar is the same as where a party has been barred in terms of the rules for failing to comply with any dictate of the rules. As r 83 provides, where a party has been barred, the registrar shall not accept for filing any pleading or document from the barred party and the party may not appear in any subsequent proceedings except for the purpose of applying for the removal of the bar. Viewed from this stand point, Mr Masterson is correct when he submits that there is HH 116/2004 HC 10679/03 nothing unprocedural in setting the matter down on the unopposed roll as the respondent has no right of audience to move for the dismissal of the application until the bar against him is uplifted. WHERE A PARTY HAS BEEN BARRED FOR WANT OF HEADS, DOES THE APPLICATION BECOME UNOPPOSED? Mr Masterson submitted that it does. I agree with him to the extent that the respondent has no right of audience to move against the granting of the application. It however appears to me that the application is different from an application where no opposing affidavit has been filed as no competing facts or conclusions at law are placed before the court or judge in such a case. In the case where the respondent is simply barred, his opposing affidavit is before the court and it does constitute evidence before the court. It is on this basis that the court may resolve the matter on merit as provided for in r 288 (2b). The matter cannot be resolved on the merits in the case of an application to which no opposing papers have been filed. However, this is a distinction whose net effect is diminished by the inherent power of the court or judge determining the application on the unopposed roll to refuse the application if he or she is not satisfied on the applicant’s claim notwithstanding the default of the respondent. It is therefore strictly not correct to say that in an opposed application where the respondent has not filed heads, the application becomes unopposed. I prefer to hold that the application remains opposed but the respondent has lost the right to appear and move the court in his or her favour. This on its own will, however, in my view, not constitute a bar from setting the matter down on the unopposed roll as the respondent will not prejudiced by so doing since the court will exercise the same powers that it will exercise when it sits as a court determining opposed applications. THERE IS NO RULE BARRING THE APPLICANT FROM SETTING DOWN AN OPPOSED APPLICATION ON THE UNOPPOSED ROLL. Again, Mr Masterson is correct in this submission. There is no specific rule that provides that an applicant may not set down an opposed application on the unopposed roll. The rules provide for the setting down of unopposed applications in r 223 (1) (e). The rules further HH 116/2004 HC 10679/03 provide for the setting down of other uncontested matters. Rule 238 provides for the set down of opposed matters upon receipt of the heads of argument by the applicant. It does not preclude the setting down of such matters on the unopposed roll in the event that the respondent is barred before the matter is set down on the opposed roll, a situation that confronts me in this matter. The argument by Mr Masterson that such matters should be capable of being set down on the unopposed roll becomes compelling when one has regard to the delays experienced in setting down opposed matters as opposed to unopposed matters. The argument is strengthened by the fact that the power of the court to determine the matter is not enhanced by sitting in the opposed applications’ court as opposed to sitting in the motion court. It is therefore time and cost saving that matters where the respondent has been barred for want of heads be dealt with in the motion court. It is this aspect that the Rules Committee may want to address and provide for the manner in which such matters may be speedily resolved. As authority for all his submissions, Mr Masterson relied on the decision of this court in HPP Studios (Private) Limited v Associated Newspapers of Zimbabwe (Private) Limited 2000 (1) ZLR 318 (H). In that matter ADAM J was faced with a situation where the defendant had entered appearance to defend the plaintiff’s claim outside the 10­day period allowed in the rules. In granting an application for default judgment in the face of a clear indication that the defendant intended to defend the claim, the learned judge held that where a defendant has been automatically barred in terms of rule 50, there is no obligation on the plaintiff to make any other application before he obtains judgement. In making this ruling, the judge was overruling a decision by GILLESPIE J (with the concurrence of the Judge President), in Founders Building Society v Dalib Brothers (Private) Limited and Others 1998 (1) ZLR 526 that before taking judgment in such circumstances, the plaintiff has to apply to court thorough the chamber book for the irregular pleading to be struck off the record. It is not necessary that I debate the above decisions. Whether the decision of one judge can upset the decision of two judges of this court is an issue that arises from these two cases but that I need not deal with. The issue that has exercised my mind in this application is the fact that by practice of this court, matters set down on the opposed roll are always set down on notice to the respondent whether or not that respondent has been barred. By adopting this procedure, this HH 116/2004 HC 10679/03 court has granted respondents in the position of the respondent before me a chance to be heard before the matter is determined on the merits or is referred to the unopposed roll in terms of r 238 (2b). This practice may have arisen when set down of opposed matters were the duty of the registrar upon receipt of the applicant’s heads or it may have had some other origin. Whatever that origin was, it has given respondents who are barred a procedural advantage to be served with a notice setting that matter down that I am reluctant to take away from the respondent before me. He was not served with a notice of set down and is therefore prejudiced by the enrollment of this matter on the unopposed roll. My ruling may have been different had he been served with a notice setting the matter down on the unopposed roll. I do not read anything in the rules barring such a procedure from being adopted. On the basis of the foregoing, it does appear to me that the correct way of proceeding is for the matter to be set down on the opposed roll. In view of the conclusion I have reached in this matter, there is no need for me to deal with the application for leave to file an answering affidavit by the applicant. The court seized with the application in due course will deal with this aspect of the application. In the result, I make the following order: It is ordered that the application for summary judgment be set down with notice to the respondent. Coghlan, Welsh & Guest, applicant’s legal practitioners