The respondent was the Chief Executive Officer of the appellant (Grain Marketing Board) and was suspended from employment following allegations of misconduct. The respondent filed an application in the High Court challenging his suspension, which was initially dismissed on the basis that the matter was pending before the Labour Court. The respondent appealed to the Supreme Court, which remitted the matter to the High Court and gave the appellant leave to file opposing papers within fourteen days. The appellant failed to file its opposing papers within the stipulated time and was automatically barred. When the matter was set down again before the High Court, both parties were legally represented. The appellant's legal practitioner made an oral application to uplift the bar, explaining that the delay was due to ill health. However, the High Court proceeded to hear argument on the merits from both parties and declared the suspension a nullity without first determining the application to uplift the bar.
The appeal was allowed with costs. The order of the court a quo was set aside. The matter was remitted to the court a quo for the determination of the application for the upliftment of the bar.
When a party who has been barred for failure to file opposing papers within the stipulated time makes an oral application to uplift the bar at a hearing, the court becomes seized with that application and must determine it before proceeding to deal with the matter on the merits. A court errs if it proceeds to hear argument on the merits from both parties without first determining the application to uplift the bar. Where a respondent has been barred for failure to file opposing papers, the matter must be treated as unopposed in terms of Rule 239 of the High Court Rules unless the bar is lifted, and should be set down on the unopposed roll in terms of Rule 236(1). Any decision on the merits made without properly determining an application to uplift the bar is incompetent and cannot stand.
Garwe JA observed that the practice in the High Court is that only in very few instances have oral applications to uplift the bar been entertained by the Court. This is because in such cases the applicant must explain the reason for the delay and convince the court that there is a bona fide defence on the merits, which cannot properly be done by oral application as the other party would not have been afforded the proper opportunity to prepare and possibly contest the application. In practice, where such an application is made, the court will usually direct that a written application be filed and postpone any decision on the merits pending the determination of the application to uplift the bar. The court may also give a time limit within which the application is to be made and order the payment of wasted costs by the party seeking the postponement.
This case clarifies the proper procedure to be followed when a party is barred for failing to file opposing papers within the stipulated time in Zimbabwean civil procedure. It establishes that when an oral application to uplift the bar is made at a hearing, the court must determine that application before proceeding to deal with the matter on the merits. The case also confirms that where a respondent is barred for failure to file opposing papers (as opposed to failure to file heads of argument), the matter should be treated as unopposed and set down on the unopposed roll unless and until the bar is lifted. This ensures procedural fairness and prevents a court from hearing argument on the merits from a party who is technically barred from participating in the proceedings.