African Banking Corporation of Zimbabwe and ABC Holdings Ltd v Lesley Faye Marsh (Pvt) Ltd T/A Premier Diamonds and Others

The applicants issued summons in case HC 8991/13 against the respondents claiming US$4,634,547.72 with interest at 38% per annum. The matter was defended. A pre-trial conference was set for 25 March 2014, which Mr Samukange did not attend; Mr McGowan attended instead but was unfamiliar with the matter, necessitating postponement to 1 April 2014. On 1 April 2014, neither the respondents nor their counsel attended the pre-trial conference. Mr Samukange was in Belgium attending a client's daughter's wedding. The respondents' defence was struck off and default judgment was granted. The respondents filed an application for rescission (HC 2754/14) on 2 April 2014. The applicants opposed this on 17 April 2014. The respondents failed to file an answering affidavit or prosecute the rescission application within 30 days. The applicants then filed the present application (HC 5356/14) on 30 June 2014 seeking dismissal of the rescission application. The respondents only filed their answering affidavit in the rescission application on 10 July 2014 (after being served with the dismissal application). The respondents filed their heads of argument in the present application on 19 February 2015, almost six months late, and became automatically barred under Rule 238(2)(a).

• Whether the respondents should be granted a postponement to file a chamber application for upliftment of the bar
• Whether the bar on the respondents for late filing of heads of argument should be uplifted
• Whether an oral application for upliftment of bar at the hearing was sufficient given the circumstances
• Whether the application for dismissal of the rescission application should be granted

1. The application by the respondents for postponement to enable them to file a chamber application for upliftment of the bar was dismissed. 2. The application by the respondents for upliftment of bar for failure to file heads of argument was dismissed. 3. The application for dismissal of case number HC 2754/14 was granted with costs.

The binding principles established are: (1) While Rule 84(1)(b) of the High Court Rules permits an oral application for upliftment of bar at the hearing, the circumstances of the case (including extent of delay, history of non-compliance, and complexity of factual disputes) may require a formal chamber application rather than oral application. (2) A party seeking upliftment of a bar must satisfy the requirements set out in Kombayi v Berkout and Jensen v Acavalos: extent of delay, reasonableness of explanation, responsibility for delay, prospects of success, and prejudice to the opposing party. (3) Upliftment of a bar is not automatic upon mere request. (4) A court's discretion to grant postponements must be exercised judiciously, and a postponement should only be granted where justice demands it; mere entitlement to make an oral application does not constitute a satisfactory explanation for failing to file a timely chamber application when circumstances warrant it. (5) Persistent non-compliance with court rules and dilatory conduct will weigh heavily against granting indulgence to a defaulting party. (6) Civil proceedings are party-driven and courts should not assist one party to build its case to the detriment of another party.

The court made observations about the conduct of the respondents' legal practitioner, noting the high degree of insincerity and lackadaisical attitude demonstrated throughout the proceedings. The court commented that a prudent legal practitioner would have engaged the opposing party before the hearing to determine whether the application for upliftment would be opposed, rather than merely assuming non-opposition. The court also noted that it was improper to seek a postponement by letter and believe it would be granted without a formal application, indicating the respondents' misconception that applications are granted on mere asking. The court observed that the filing of the answering affidavit two days after service of the dismissal application was "obviously intended to defeat the purpose of the present application." While cataloguing the respondents' multiple instances of non-compliance, the court stated that "the interests of justice do not justify the upliftment of the bar" and emphasized that "there must be finality to litigation and the respondents cannot be over-indulged for their ineptitude to the detriment of the applicants."

This case is significant in Zimbabwean civil procedure for demonstrating the courts' willingness to enforce strict compliance with the High Court Rules and to refuse indulgence to parties who exhibit persistent dilatory conduct. It reinforces that upliftment of a bar is not automatic and requires satisfaction of established criteria. The judgment emphasizes that while Rule 84(1)(b) permits oral applications for upliftment of bar, the nature and extent of delay, combined with a party's history of non-compliance, may require a formal chamber application with proper supporting evidence. The case serves as a warning against casual approaches to litigation and highlights that courts will protect the interests of compliant parties and ensure finality in litigation rather than repeatedly indulging non-compliant parties.