Dereki Marijeni v Mr Mufudze and Mr Majango and Zimcan Security (Private) Limited

The plaintiff instituted a claim for damages totaling $14,300.00 against the defendants arising from an alleged assault by the first and second defendants (employees of the third defendant). The claim comprised $10,000.00 for pain, shock and suffering, $500.00 for medical costs, and $3,800.00 for the anticipated cost of replacing an artificial eye. Pleadings were closed and the matter came before Gowora J for a pre-trial conference on 19 June 2001. At the conference, the first defendant made a settlement offer of $10,000.00 for general damages and $430.00 for proven medical costs, and indicated willingness to consider the $3,800.00 claim upon proof being furnished. The conference was postponed sine die to allow the plaintiff to provide the required proof. However, the plaintiff failed to provide the proof by the agreed date in June 2001 and subsequently disappeared, with no response to letters from his legal practitioner. The plaintiff's legal practitioner, who was representing the plaintiff in forma pauperis, filed a chamber application for directions on how to proceed given the plaintiff's disappearance.

• What is the proper procedure when a plaintiff represented in forma pauperis disappears before settlement is finalized?
• What is the role and function of a pre-trial conference in Zimbabwean civil procedure?
• What powers does a judge presiding at a pre-trial conference have to give directions?
• Can a pre-trial conference be resumed in the absence of one of the parties?

1. The plaintiff is to apply for the matter to be reset down before Justice Gowora for the resumption of the pre-trial conference. 2. The chamber application for directions as it relates to how to compromise the claim on behalf of the plaintiff is hereby referred to Justice Gowora for determination at the resumption of the pre-trial conference.

The binding legal principles established are: (1) A judge presiding at a pre-trial conference is not a mere observer but must be an active participant who assists toward settlement, gives directions on pleadings and procedure, and controls the case until it is settled or referred to trial. (2) All matters aimed at curtailing proceedings or settling the matter are properly before the judge presiding at the pre-trial conference and ought to be resolved by that judge. (3) The primary purpose of a pre-trial conference is to assist toward resolution of a dispute without recourse to trial, with the secondary purpose being to settle pleadings if settlement is not possible. (4) It is within the discretion of the judge presiding at a pre-trial conference to determine how to proceed when one of the parties is absent from the conference. (5) The judge presiding at a pre-trial conference should express views on the law and factual probabilities, point out settlement opportunities, and ensure parties are aware of litigation costs.

The court made several non-binding observations: (1) Since 1995, there has been a deliberate and noticeable shift in how judges convene, participate in and dispose of pre-trial conferences in Zimbabwe, with a deliberate attempt to introduce mediation as an alternative to trials. (2) The practice that a judge who presides at a pre-trial conference will not preside over the matter if it goes to trial allows the judge to take an active part without being accused of pre-judging the matter. (3) Parties themselves should be encouraged to have their say at pre-trial conferences so that issues are freely aired and each party knows exactly what case it has to meet. (4) If agreement cannot be reached at a pre-trial conference, parties should be encouraged to think more before proceeding to trial, and postponements for that purpose should be readily granted. (5) The court noted that costs of litigation today are very high, suggesting this should be a factor in encouraging settlement. (6) The court observed that the issue of the role of pre-trial conferences had not been extensively dealt with in judgments or texts, making this an area requiring judicial clarification.

This case is significant in Zimbabwean jurisprudence (and relevant for South African law by analogy) as it provides important guidance on the role and function of pre-trial conferences in civil litigation. The judgment clarifies that pre-trial conferences are not merely procedural formalities but substantive opportunities for judicial mediation and case management. It establishes that judges presiding at pre-trial conferences have broad powers to give directions, actively participate in settlement negotiations, and control the litigation process until the matter is settled or referred to trial. The case emphasizes the modern trend toward alternative dispute resolution and judicial case management as integral components of civil procedure, rather than merely preparing cases for trial. It also addresses practical issues that arise when parties disappear during litigation, particularly in in forma pauperis representation.