Makeh Enterprises (Pvt) Ltd v ZB Financial Holdings

The Deputy Registrar allocated trial dates (17 and 18 May 2012) in terms of Rule 215(2) of the High Court of Zimbabwe Rules 1971, serving notice on the plaintiff's legal practitioners on 20 April 2012 and the defendant's legal practitioners on 23 April 2012. The defendant's legal practitioners did not lodge a consent to set down with the Deputy Registrar. On the set down date, the defendant and their legal practitioner did not attend court. The defendant's correspondent appeared only after being contacted by the plaintiff's counsel and informed the court that the defendant's position was that the matter was not properly set down because the defendant had not signed and lodged consent to the set down.

• Whether a matter is properly set down for trial when the Deputy Registrar allocates a date under Rule 215(2) without the consent of the parties
• Whether consent to set down is a legal requirement under the High Court Rules
• What procedure must be followed by a party seeking to alter a set down date

The matter was postponed to 1st and 2nd August 2012 for trial, with the defendant ordered to bear the wasted costs for the hearing on 17 May 2012.

Under Rule 215(2) of the High Court of Zimbabwe Rules 1971, once the Registrar allocates a date for a case to be heard and gives parties notice, the set down is valid without requiring the consent of the parties. A party seeking alteration of a set down date must apply to the Registrar under Rule 215(3) for good cause, or apply to a Judge or court under Rule 217. The set down date remains legally effective even where a party has not consented to it.

The court observed that while there is no strict legal requirement for the Registrar to seek consent of parties to a set down date, it has been the established practice of the Registrar to seek such consent. The court noted that allowing a plaintiff to take advantage of a defendant's non-attendance where this practice had not been followed would be tantamount to snatching at a judgment and would compromise the ends of justice. The court indicated that a defendant's improper conduct in relation to set down can appropriately be dealt with through an award of costs rather than default judgment.

This case clarifies the procedural requirements for set down of matters for trial in Zimbabwean courts. It establishes that while consent to set down has become customary practice, it is not a strict legal requirement under Rule 215 of the High Court Rules. The case also demonstrates the court's discretion to balance strict procedural compliance with practical considerations and the interests of justice, particularly where established court practices exist even if not legally mandated.