Kevin James Shadwell and Revco (Pvt) Ltd v Raymond Mavenganise Svondo

The respondent, Raymond Mavenganise Svondo, and 20 others had been afforded the opportunity by the first applicant, Kevin James Shadwell, to subscribe for shares in the second applicant, Revco (Pvt) Ltd, as its employees pursuant to a shareholders' agreement. The respondent left the employ of the second applicant and claimed payment of US$20,000.00 as equivalent to the value of his shares. The respondent issued summons against the two applicants who entered appearance to defend and filed a special plea raising issues of mis-joinder, non-joinder and jurisdiction. Both parties filed heads of argument in respect of the special plea and awaited a hearing date. Despite the special plea not having been heard and the applicants not having filed a plea on the merits, the respondent filed discovery documents and a pre-trial conference minute. The applicants' legal practitioners objected on 13 March 2015 and again on 10 July 2015, stating that pleadings were not closed and the pre-trial conference was premature. The applicants failed to attend the pre-trial conference on 21 July 2015, resulting in their defence being struck out and the plaintiff being granted leave to set the matter down on the unopposed roll. A default judgment was granted on 20 August 2015.

• Whether the applicants provided a reasonable and acceptable explanation for their failure to attend the pre-trial conference
• Whether the pre-trial conference was properly set down given that pleadings had not closed (the special plea had not been heard and no plea on the merits had been filed)
• Whether the applicants had prospects of success in their defence to warrant rescission of the default judgment
• Whether the default judgment should be rescinded in the circumstances

The application for rescission was granted. The judgment in case number HC 1261/14 granted on 20 August 2015 was rescinded. The applicants' defence to the summons was reinstated and the registrar was instructed to set the special plea down for hearing. Costs were ordered to be in the cause.

A pre-trial conference cannot properly be held before pleadings are closed. Where a special plea has been filed and is yet to be heard, and no plea on the merits has been filed, pleadings are not closed in terms of Order 26 as read with Order 16 of the High Court Rules, 1971. Legal practitioners as officers of the court have a duty to bring procedural irregularities to the attention of the court rather than seek to take advantage of them. A default judgment obtained in circumstances where the pre-trial conference was improperly set down before pleadings closed will be rescinded where the defendant provides a reasonable explanation for non-attendance and demonstrates a bona fide defence with prospects of success that warrant investigation.

The court expressed strong disapproval of the conduct of the respondent's legal practitioners, stating that it took "a very dim view of legal practitioners who conduct themselves in that manner" - referring to their failure to be candid with the court about the procedural status of the matter despite being fully aware that pleadings had not closed and that the special plea had not been heard. This serves as a warning to legal practitioners about their duties as officers of the court.

This case is significant in South African (and Zimbabwean) civil procedure as it reinforces the proper sequencing of procedural steps in litigation. It emphasizes that pre-trial conferences cannot be held before pleadings are closed, and that special pleas must be heard and determined before matters can proceed to the merits. The case also underscores the duty of legal practitioners, as officers of the court, to act candidly and bring procedural irregularities to the court's attention rather than taking advantage of them. It demonstrates the court's willingness to rescind default judgments where they were obtained through procedural irregularities and where the defendant has a bona fide defence with reasonable prospects of success.