Lesley Faye Marsh Private Limited T/A Premier Diamonds and Others v African Banking Corporation of Zimbabwe Private Limited and ABC Holdings Private Limited

The respondents sued the appellants in the High Court for US$4,634,547.72 plus interest. The claim was defended and met with a counterclaim for US$2.1 million. When the appellants and their legal practitioners failed to attend a pre-trial conference, the respondents successfully applied to strike off the defence and obtained a default judgment. The next day, the appellants filed an application for rescission of the default judgment. The respondents opposed the rescission application. After the appellants did not file further papers for over a month, the respondents filed a chamber application to dismiss the rescission application for want of prosecution. Immediately after the dismissal application was filed, the appellants filed answering affidavits and heads of argument in the rescission application. The appellants requested that both applications be heard together, but only the application for dismissal was argued. The High Court found the appellants were barred for filing heads of argument out of time, treated the application as unopposed, and granted the dismissal order.

• Whether the High Court was correct in treating the application for dismissal as unopposed solely because the respondents filed heads of argument out of time
• The proper interpretation and application of Rule 238(2)(b) of the High Court Rules 1971 concerning the powers of the court when a respondent files heads of argument out of time
• The distinction between the effect of a bar under Rule 238(2)(b) and the effect of a bar under Rule 239 of the High Court Rules

The appeal was allowed with costs. The matter was remitted to the High Court to proceed in terms of Rule 238(2)(b) of the High Court Rules 1971. The Registrar of the High Court was directed to place the matter before a different judge (since the original judge had expressed views on the merits).

Where a respondent is barred for failing to file heads of argument on time under Rule 238(2)(b) of the High Court Rules 1971, the application does not automatically become unopposed. The court has a discretion under Rule 238(2)(b) to either: (1) hear the matter on the merits; or (2) direct that it be set down for hearing on the unopposed roll. Validly filed pleadings (notice of opposition and opposing affidavits) remain extant and on the record until struck off by a competent court order, such as a referral to the unopposed roll or a specific order striking off the pleadings. The effect of a bar under Rule 238(2)(b) differs from the effect of a bar under Rule 239, which deems the application unopposed.

The Court expressed disapproval of the piecemeal fashion in which the dispute between the parties had proceeded, noting that commercial disputes should not be fragmented. The Court observed that consolidation of the hearing of the two applications would have been a practical course that might have avoided the appeal altogether. The Court also noted in obiter that it was unclear whether a court could refer a matter to the unopposed roll and then immediately convert itself into 'the unopposed court' to dispose of the matter, but expressly declined to express a view on this procedural question as it did not arise in the appeal. The Court also made passing reference to the counterclaim being left extant while the main claim proceeded, identifying this as another instance of undesirable fragmentation of the dispute.

This case is significant in South African and Zimbabwean civil procedure law for clarifying the important distinction between different types of bars under the High Court Rules. It establishes that when a respondent is barred specifically for late filing of heads of argument under Rule 238(2)(b), the application does not automatically become unopposed - the court must exercise its discretion to either hear the matter on the merits or refer it to the unopposed roll. The judgment reinforces the principle that validly filed pleadings remain on record until formally struck off by a competent court order. The case also demonstrates the courts' preference against piecemeal litigation and fragmented determination of commercial disputes. It provides important guidance on the procedural rights of parties who default in filing heads of argument and confirms that such parties retain the benefit of their substantive pleadings unless and until those pleadings are formally nullified.