M.O.B Capital (Pvt) Ltd v Tererai Edwin Chabata and Lynette Chabata

The respondents sued the applicant for payment of $24,380.00 arising from an investment agreement in HC 3415/15. On 29 January 2016, the applicant was served with a notice of intention to bar for failing to plead. Instead of pleading, the applicant argued it was entitled to further and better particulars and demanded withdrawal of the notice. The applicant did not address the notice until a bar was effected on 11 February 2016. The applicant then filed a separate application to compel further particulars (HC 356/16) but did nothing about the bar. On 16 February 2016, the respondents applied for default judgment, which was granted on 24 February 2016. Despite being informed of the default judgment by letter on 14 March 2016 and being urged to withdraw the application to uplift the bar, the applicant persisted with the application. The applicant filed heads of argument on 6 April 2016 and also filed a rescission application on 31 March 2016 (HC 798/16) to set aside the default judgment while simultaneously pursuing the application to uplift the bar.

• Whether an application to uplift a bar could proceed after default judgment had already been entered against the applicant
• Whether the application to uplift the bar was frivolous and vexatious
• Whether costs on a legal practitioner and client scale were justified

The application was dismissed with costs on the scale of legal practitioner and client.

Once default judgment has been entered against a party, an application to uplift the bar that facilitated that judgment is rendered superfluous and cannot succeed. A bar is only effected to facilitate the grant of default judgment; once default judgment is entered, the issue of the bar ceases to be important, with the judgment becoming the main consideration. The proper remedy in such circumstances is to challenge the default judgment itself through rescission proceedings, not to seek upliftment of the bar. An application that persists after being overtaken by events in this manner is frivolous and vexatious and warrants dismissal with costs on a legal practitioner and client scale.

The court observed that it has a duty not only to regulate its processes but also to protect its process and integrity, and cannot allow its processes to be brought into disrepute or to degenerate into a circus. The court also noted that while every person has the right to approach the court seeking relief, where it is apparent that an application is doomed to failure but is pursued for other obscure purposes, the court frowns at such conduct. The court emphasized that "people who have nothing to do should not attempt to do it in court."

This case illustrates the court's duty to regulate its processes and protect its integrity by dismissing applications that have been overtaken by events and serve no practical purpose. It confirms that once default judgment has been entered, applications to uplift the bar that led to that judgment are rendered moot and superfluous. The case also demonstrates the circumstances in which the court will award punitive costs on a legal practitioner and client scale—namely, when a party persists with frivolous and vexatious proceedings despite being advised of their futility, thereby forcing the opposing party to incur unnecessary legal costs.