City of Harare v Samuel Chaparadza and Others

The City of Harare brought an application under Rule 449 seeking correction of a court order granted after a pre-trial conference between the parties. The applicant alleged that the issued order incorrectly captured the case number and that the second, third and fourth respondents were not cited in the original order. The respondents opposed the application but their opposing affidavits focused mainly on the background of the matter without providing a discernible basis for opposition. In fact, there appeared to be a veiled concession to the granting of the relief sought. The respondents' legal practitioners were served with the applicant's heads of argument on 16 March 2021, but the respondents failed to file their own heads of argument as required by the rules.

• Whether the respondents were barred from being heard for failure to file heads of argument in terms of Rule 238(2a) of the High Court Rules, 1971
• What discretion the court has under Rule 238(2b) when a respondent is barred for failure to file heads of argument
• Whether the court should deal with the matter on the merits or refer it to the unopposed roll when the respondent is barred
• Whether an order granted without hearing the other party constitutes a default order

The application was granted with costs. A default order was issued in favor of the applicant on 24 May 2021.

When a respondent is barred under Rule 238(2a) for failure to file heads of argument, the court has discretion under Rule 238(2b) to either deal with the matter on the merits or refer it to the unopposed roll. However, both options result in a default order. Even where a court considers the merits of a case in the absence of the other party due to procedural non-compliance, the resultant order remains a default order. The failure to file heads of argument after being served with the applicant's heads constitutes a bar that entitles the court to grant a default order.

The court observed that dealing with a matter on the merits when the other party has not been heard is "an exercise in futility" since it would invariably result in a default order. The court noted that referral to the unopposed roll would have the same effect as granting a default order directly. These observations suggest a practical approach to case management where the outcome is predetermined by procedural non-compliance.

This case provides guidance on the application of Rule 238(2b) of the High Court Rules, 1971, and confirms that a court has discretion when a respondent is barred for failure to file heads of argument. It clarifies that both options available under the rule (dealing with the matter on the merits or referring to the unopposed roll) ultimately result in a default order. The case reaffirms the principle from Zvinavashe v Ndlovu that an order granted without hearing the other party remains a default order regardless of whether the court considers the merits. This demonstrates the importance of compliance with procedural rules regarding the filing of heads of argument and the consequences of non-compliance.