Exposales (Private) Limited v Poly Packaging (Private) Limited

The respondent issued summons against the applicant on 30 November 2010 in case number HC 8728/10, claiming $6,369.35. The applicant entered appearance to defend through Messrs Bruce Mujeyi Manokore Attorneys and was served with a notice to plead on 26 January 2011. The applicant failed to enter a plea, and default judgment was granted on 31 March 2011 and issued on 28 April 2011. A writ of execution was served on the applicant on 31 May 2011. On 2 June 2011, the applicant instructed its legal practitioners to apply for rescission of the default judgment, but the legal practitioners failed to act. This resulted in prolonged delay. The applicant's new legal practitioners could not obtain an explanation from the former legal practitioners to support the condonation application. At the hearing, two procedural issues emerged: the respondent had filed heads of argument outside the ten-day period prescribed by Rule 238(2)(a) of the High Court Rules 1971, resulting in an automatic bar under Rule 238(2)(b); and respondent's counsel appeared improperly dressed.

• Whether condonation should be granted for the late noting of an application for rescission of default judgment
• The effect of the automatic bar under Rule 238(2)(b) when a respondent files heads of argument late
• Whether the court should review the merits at the stage of granting default judgment or grant the default judgment and allow rescission proceedings to proceed
• Whether costs de bonis propris on an attorney and client scale should be awarded against counsel

1. The late noting of an application for rescission of judgment in case number HC 8728/10 was condoned. 2. The applicant was ordered to file its application for rescission within ten days of the order. 3. The respondent was ordered to pay the costs of the application.

Where a respondent is automatically barred under Rule 238(2)(b) for filing heads of argument outside the prescribed period, the court has discretion under Rule 4C to grant default judgment in favour of the applicant without reviewing the merits. Reviewing the merits at the stage of granting default judgment would unnecessarily fetter the discretion of a future court that may be seized with an application to rescind the default judgment. This approach serves the interests of justice by avoiding further costs and delays while preserving the rights of parties to pursue rescission proceedings on the merits.

MUTEMA J lamented the decline of the age-old practice of legal practitioners engaging each other on matters of adjectival law and accommodating each other by consenting to matters like upliftment of a bar, condonation, and rescission where applicable, thereby saving the court's time and clients' money. The judge noted this practice no longer seems to happen, especially among young practitioners, but expressed the view that mulcting counsel with costs de bonis propris on a higher scale is not the solution to this problem.

This case demonstrates the Zimbabwean High Court's approach to condonation applications for late rescission applications and the application of Rule 238(2)(b) regarding automatic bar when a respondent files heads of argument late. It illustrates the court's preference for granting default judgment without reviewing merits to preserve the discretion of future courts in rescission proceedings. The judgment also addresses the standards for awarding costs de bonis propris and reflects judicial concern about the decline in professional courtesy among legal practitioners in resolving procedural matters.