On 1 March 2016, the 1st respondent (Parkam Enterprises) was placed under provisional judicial management. Fifty-six months later, on 12 August 2020, the applicant (Adhesive Products Manufacturers) sued out a court application seeking discharge of the provisional judicial management order on the grounds that it had not been confirmed and was a sham designed to shield the 1st respondent from paying its debts. The application was served on the 1st respondent by the Sheriff on 9 September 2020 and again by a clerk on 8 October 2020. The Assistant Master was also served. The 1st respondent failed to file a notice of opposition within the time allowed by the rules. The matter was set down on the unopposed roll on 17 December 2020. When called, counsel for the 1st respondent appeared and challenged the validity of service and competence of the application, despite being advised that the 1st respondent was barred for failure to file a notice of opposition.
1. The provisional judicial management order issued on 1 March 2016 under cover of HC 3455/15 was discharged. 2. Nyasha Motsi, in his personal capacity, was directed to pay the applicant's costs of suit on an attorney and client scale.
Once a party is barred under rule 233(3) of the High Court Rules for failure to file a notice of opposition and opposing affidavit within the prescribed time, the bar operates automatically. Under rule 83(b), a barred party shall not be permitted to appear personally or through a legal practitioner in any subsequent proceedings except for the purpose of applying for the removal of the bar. A barred party must either file a chamber application to uplift the bar or make an oral application at the hearing for removal of the bar before being entitled to be heard on the merits. Where a party is barred and does not apply for removal of the bar, the matter is treated as unopposed and the court will not consider submissions from counsel for the barred party.
The court made observations about professional conduct, noting that counsel's persistence in making submissions after being advised that his client was barred was "inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation." The court also commented on discourteous correspondence from legal practitioners, stating that demanding a "speedy response" from a judge is "taking discourtesy to new heights" and emphasized that "the office of a judge must be respected. It is not about the person of the judge - it is about the office, it is about the court as an institution." The court cited Ex Parte Zondo and Others; In Re: Administrator of JS Moroka and Others v Kubheka and Another in support of this principle.
This case is significant for clarifying the procedural consequences of failing to file a notice of opposition in Zimbabwean civil procedure. It reinforces the principle that a bar under the High Court Rules operates automatically and that a barred party has no right of audience before the court except to apply for removal of the bar. The case also addresses proper court etiquette and respect for the judicial office, emphasizing that discourteous correspondence to the court is inappropriate. It provides guidance on the treatment of unopposed applications for discharge of provisional judicial management orders and confirms that courts will not entertain submissions from barred parties who have not first applied to uplift the bar.