No S.C. 13\2002
Appeal No 143\99
ELEMENTS ENGINEERING (PRIVATE) LIMITED (2) MAKWABARARA
INVESTMENTS (PRIVATE) LIMITED (3)
MAKWABARARA v THE EASTERN AND SOUTHERN AFRICAN
TRADE AND DEVELOPMENT BANK
COURT OF ZIMBABWE
JA, CHEDA JA & ZIYAMBI JA
MARCH 19 & APRIL 12, 2002
appellants in person
(first and second appellants appearing through Mr
de Bourbon S.C.,
for the respondent
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants application for
of a default judgment granted against them. The appellants appeared
in person, with the first and second appellants
their chief executive and alter
in accordance with the principles laid down by this Court in Lees
Import and Export (Pvt) Ltd v Zimbabwe Banking Corporation Ltd
1999 (2) ZLR 36 (S); 1999 (4) SA 1119 (ZSC).
relevant facts are as follows. In October 1997 the respondent
issued a summons against the appellants claiming payment of the
of US$447 488.85 together with interest, collection commission and
costs of suit.
appellants duly entered appearance to defend the action and, on 4
November 1997, requested further particulars to the respondents
claim. After the further particulars had been furnished, the
appellants requested further and better particulars on 30 March 1998.
respondent refused to furnish the further and better particulars
sought, alleging that in order to plead the appellants did not
require such particulars. That was on 2 April 1998.
on 28 April 1998 the respondent filed a notice of intention to bar
and, in response, the appellants, who were not legally
filed a further request for further and better particulars on 7 May
1998. In response, the respondent wrote to the
Registrar of the
High Court advising her that the request for further and better
particulars was null and void and should be ignored.
in June 1998 the respondent filed a Chamber application in the High
Court seeking a default judgment, which was granted
on 11 September
1998, on the ground that the appellants had failed to file their plea
and had been barred.
appellants subsequently filed a court application in the High Court
seeking the rescission of the default judgment. That application
was dismissed with costs. Aggrieved by that decision, the
appellants appealed to this Court.
In my view,
this appeal may be disposed of by determining one issue only. That
issue is whether the default judgment was properly
granted. If it
was not properly granted, cadit
(that is the end of the matter) and the appeal must be allowed.
the default judgment was properly granted in this case depends upon
whether the appellants were barred in terms of the High
procedure for barring a party is set out in Rules 80 and 81 of the
Rules of the High Court, 1971, which read as follows:-
party shall be entitled to give five days notice of intention to
bar to any other party to the action who has failed to file
declaration, plea or request for further particulars within the time
prescribed in these rules and shall do so by delivering
a notice in
Form No. 9 at the address for service of the party in default.
the expiry of the time limited by the notice, the party who has
served the notice may bar the opposite party by filing a copy
notice with the registrar. The
endorsement on Form No. 9 shall be duly completed before filing and
it shall be signed by the party who has given the notice
(the emphasis is added)
endorsement on Form No. 9 referred to in Rule 81 above reads as
The Registrar of the High Court,
The time limited by this notice
having expired, we hereby bar the plaintiff/defendant in terms
the endorsement appears the following note:-
When a copy of this form is filed with the Registrar in terms of
Rule 81, it should be accompanied by proof of service
in the form of
an endorsement or return of service (if it was served by the Sheriff
or his deputy) or a certificate of service in
Form No. 6 or 7, as the
case may be].
No. 6 referred to in the above note is a certificate of service by a
legal practitioner. This should accompany the copy of
filed with the Registrar in terms of Rule 81 where the notice was
served on the other party by a legal practitioner.
Form No. 7, which is referred to in the note, is a certificate of
service by a person in the employ of a legal practitioner.
should accompany the copy of the notice filed with the Registrar in
terms of Rule 81 where the notice was served on the other
party by a
person in the employ of a legal practitioner.
appeal was argued I drew the attention of Mr de
who appeared for the respondent, to the fact that the photocopy of
the copy of the notice of intention to bar, which formed part
record of the proceedings in the court a
and which was filed with the Registrar in terms of Rule 81, in order
to bar the appellants, showed that the endorsement on the notice
not duly completed before filing, contrary to the provisions of Rule
relevant part of the endorsement in question reads as follows:-
time limited by the Notice set out above having expired we hereby Bar
the Defendants in terms thereof.
AT HARARE this
clearly, the endorsement was not duly completed as required by Rule
81. The date on which the appellants were allegedly barred
I indicated to Mr de
that as the notice of intention to bar had not been served on the
appellants by the Sheriff or his deputy, a certificate of service
should have been filed with the Registrar and that no such document
formed part of the record of the proceedings in the court a
undertook to bring the two matters raised by the court to the
attention of his instructing legal practitioners, and expressed the
hope that the required documents would be sent to the Registrar of
this Court as soon as possible.
the Court had reserved its judgment and adjourned, the Registrar of
this Court, at the request of the Court, obtained from
the High Court
the copy of the notice of intention to bar filed with the Registrar
of the High Court in terms of Rule 81. It clearly
showed that the
endorsement was not duly completed.
instructing practitioners subsequently sent to the Registrar of this
Court a copy of the notice of intention to bar whose endorsement
duly completed. This must have been a copy which they had kept for
themselves, and not the one filed with the Registrar of
Court in terms of Rule 81.
far as the service of the notice on the appellants was concerned, the
instructing legal practitioners had this to say in their
the Registrar of this Court:-
was effected by one John Mupereri, a messenger in the employ of
Sawyer and Mkushi, and not by the Deputy Sheriff. No certificate
Service was filed at Court.
the endorsement on the copy of the notice of intention to bar filed
with the Registrar of the High Court in terms of Rule
81 was not duly
completed, and no certificate of service was filed with the Registrar
as required by Rule 81. The provisions of
Rule 81 were not,
therefore, complied with.
the circumstances, the Chamber application for a default judgment was
not in order because the respondent did not comply with
procedure set out in Rule 81. The appellants were, therefore, not
barred, and the learned JUDGE PRESIDENT should not
have granted the
being the case, the provisions of Rule 63 of the High Court Rules,
1971, do not apply. The Rule reads as follows:-
63 (1). A party against whom
judgment has been given in default, whether under these rules or
under any other law, may make a court
application, not later than one
month after he has had knowledge of the judgment, for the judgment to
be set aside.
the court is satisfied on an application in terms of subrule (1)
that there is good and sufficient cause to do so, the court
aside the judgment concerned and give leave to the defendant to
defend or to the plaintiff to prosecute his action, on
such terms as
to costs and otherwise as the court considers just.
I say that this rule does not
apply to the rescission of the default judgment granted in this case
because the rule only applies to
a default judgment granted under
these rules or under any other law.
am satisfied, for the reasons already given, that the default
judgment granted in this case should not have been granted. It
cannot, therefore, be described as a default judgment granted under
these rules or under any other law. It is, in fact, a
circumstances, the appeal is allowed with costs. The order of the
is set aside and the following is substituted:-
1. The default judgment
granted against the applicants on 11 September 1998 is set aside.
respondent shall pay the costs of this application.
CHEDA JA: I agree
JA: I agree
respondent's legal practitioners