Interfin Banking Corporation (Pvt) Limited v Mirach Trading (Pvt) Limited and Others

The plaintiff, Interfin Banking Corporation, sued the second defendant (Tendai Chinyai) for US$139,544.25 together with interest at 20% per annum over the applicable account interest rate. The claim was based on the second defendant's liability as surety and co-principal debtor for a loan advanced to the first defendant (Mirach Trading). The first defendant (principal debtor) had not denied liability and judgment had already been entered against it but remained unacquitted. The pre-trial conference was initially scheduled for 22 May 2014 but was postponed to 28 May 2014. The court issued directions requiring the parties to hold a round table conference on 27 May 2014 to prepare a deed of settlement, as deliberations showed the second defendant had no defence. The second defendant failed to comply with the notice to attend pre-trial conference served on 12 May 2014, which required him to file a summary of evidence. Despite further directions issued on 28 May 2014 requiring the second defendant to file his pre-trial conference minute and summary of evidence by 20 June 2014, he failed to comply.

• Whether default judgment should be entered against the second defendant for failure to comply with court directions issued in terms of Rule 182(4), (6), (8) or (10) of the High Court Rules
• Whether the second defendant's defence should be struck out for non-compliance with pre-trial conference procedural requirements
• The court's powers under Rule 182(11) of the High Court Rules to strike out a defence for non-compliance with directions

1. The second defendant's defence was struck out. 2. Judgment was entered against the second defendant in the sum of US$139,544.25 together with interest at the rate of 20% per annum over and above the rate of interest applicable to defendant's account with effect from 31 December 2010 to date of payment. 3. Costs of suit on a legal practitioner and client scale and collection commission as provided for under the Law Society of Zimbabwe by-laws were awarded.

Where a party fails to comply with directions given by a judge in terms of Rule 182(4), (6), (8) or (10) of the High Court Rules or with a notice given in terms of subrule (4), and another party applies orally for an order at the pre-trial conference or makes a chamber application, the court has the power under Rule 182(11) to strike out that party's defence and enter default judgment. The court is obliged to exercise this power when the statutory conditions are met, and repeated non-compliance with court directions will result in the striking out of a defence, even where further opportunities have been given to comply.

The court's observation that "my hands are tied" suggests that while the court may have preferred to allow the defendant further opportunity to comply, the mandatory nature of Rule 182(11) when its conditions are satisfied left the court with no discretion but to grant the relief sought. The court's initial directions requiring a round table conference to prepare a deed of settlement were informed by deliberations showing that the second defendant had no defence, indicating the court's view on the merits even before the procedural default occurred.

This case demonstrates the strict application of procedural rules governing pre-trial conferences in Zimbabwean courts and the consequences of non-compliance with court directions. It affirms the court's power under Rule 182(11) of the High Court Rules to strike out a defence and enter default judgment where a party fails to comply with pre-trial conference directions. The case emphasizes the importance of procedural compliance in civil litigation and serves as a warning that courts will not hesitate to exercise their discretionary powers to sanction parties who ignore court directions, even after being given multiple opportunities to comply. It also illustrates the application of suretyship principles where liability can be enforced against a surety and co-principal debtor independently of the principal debtor.