CBZ Bank Limited v Luxaflor Roses (Private) Limited and Others

The matter came before the court for a pre-trial conference (PTC) hearing on 13 June 2022. The first PTC was postponed to 21 June 2022 because the fourth defendant had travelled to Netherlands. At the 21 June 2022 hearing, the fourth defendant (representing himself and the first and third defendants) did not deny liability and both parties expressed a desire to settle. With the consent of the parties, the court postponed to 27 June 2022 and directed the parties and their legal practitioners to meet for a roundtable settlement meeting before that date. The parties agreed to meet at the plaintiff's attorney's office on 23 June 2022. However, the fourth defendant and his legal practitioners failed to attend the agreed meeting. Instead, Mr Mjungwa telephoned Mr Mutero proposing payment terms, but the conversation yielded no positive results, with defendants citing COVID-19 lockdown restrictions as reasons for non-payment. The second defendant was in default throughout the proceedings despite proper service.

• Whether the court should strike out the defendants' defence for failure to comply with a judge's directive given during a pre-trial conference
• Whether the discretion under Rule 49(12) of the High Court Rules, 2021 should be exercised to strike out the defence in the circumstances
• Whether the failure to attend the court-directed roundtable meeting constituted wilful default

1. The application by the plaintiff to strike out the 1st, 3rd and 4th defendants' defence in terms of Rule 49(12) of the High Court Rules, 2021 was granted. 2. The 1st, 3rd and 4th defendants' defence was struck out. 3. The matter was referred to the unopposed roll as unopposed against the 1st, 2nd, 3rd, and 4th defendants.

Where a judge gives a directive during a pre-trial conference in terms of Rule 49(11) of the High Court Rules, 2021 with the consent of the parties, a party's failure to comply with that directive without providing a reasonable explanation constitutes wilful default. In such circumstances, the court may exercise its discretion under Rule 49(12) to strike out the defaulting party's defence. The onus is on the defaulting party to provide a reasonable explanation for non-compliance and to show why the court's discretion should be exercised in their favour.

The court observed that while Rule 49(12) uses the word 'may', indicating discretion, counsel's acknowledgment of discretion is insufficient without advancing reasons why the discretion should be exercised in favour of the defaulting party. The court also noted that COVID-19 lockdown restrictions, when raised without proper explanation or substantiation, do not constitute a reasonable excuse for failing to attend court-directed meetings.

This case demonstrates the enforcement of judicial directions given during pre-trial conferences under the High Court Rules, 2021. It establishes that failure to comply with court directions, even those given with parties' consent to facilitate settlement, will result in serious consequences including striking out of defences. The case reinforces the importance of compliance with procedural directives and shows that courts will treat unexplained non-compliance as wilful default. It also illustrates the court's powers under Rules 49(11) and 49(12) to manage pre-trial proceedings and impose sanctions for non-compliance, promoting efficient case management.