Megalink Investments and Others v African Century Limited and Another

The applicants (a company and its two directors) were leasing equipment from the first respondent (African Century Limited). The respondent obtained default judgment against the applicants on 10 September 2014 for US$88,225.14 plus interest at 25% per annum and costs on a legal practitioner-client scale, after the applicants were barred for failing to file their plea within the required timeframe. The applicants were served with a notice to plead and intention to bar on 22-23 July 2014 and were duly barred on 31 July 2014. They filed a plea on 20 August 2014, but this was after the bar had already come into operation. The applicants only became aware of the default judgment when served with a notice of seizure by the Sheriff. They then urgently applied for a stay of execution while simultaneously lodging an application for rescission of the default judgment. The applicants claimed they had filed their plea with their lawyer's clerk on 28 July but it was not filed timeously for reasons unknown to them. They argued the default judgment was improperly obtained and that they had strong defenses, including disputes over interest calculations and additional payments of US$50,000.

• Whether the urgent application for stay of execution should be granted
• Whether the default judgment was improperly obtained
• Whether the filing of a plea after being barred, without applying for upliftment of the bar, prevents a plaintiff from obtaining default judgment
• Whether the respondents had a duty to ask the applicants to regularize their late plea rather than proceed to default judgment
• Whether the applicants demonstrated a prima facie case with prospects of success in their rescission application

The urgent application for stay of execution was dismissed with costs on an ordinary scale.

Once a defendant has been properly barred in accordance with Rule 84 of the High Court Rules 1971 for failure to file a plea within the prescribed time, the plaintiff is entitled to apply for and obtain default judgment. A plea filed after the bar has come into operation is a nullity and does not prevent the plaintiff from obtaining default judgment. The onus is on the barred party to apply for upliftment of the bar through the prescribed procedures under Rule 84(1) (either by chamber application or oral application at hearing), and there is no duty on the plaintiff to request the defendant to regularize their position or uplift the bar. The Registrar acts irregularly in accepting for filing any pleading from a barred party while the bar is operational (Rule 82(a)).

The court observed that even if it were argued that a litigant should not suffer for mistakes of their legal practitioner, the case appeared to lack merit on the substantive matter. The court noted that courts prefer written chamber applications for upliftment of bars as opposed to oral submissions, citing GMB v Muchero 2008 ZLR 216 (S). The court also commented that costs on a higher scale must be well justified and are not given as a matter of course, and found they were not justified in this case despite being sought by the respondents.

This case reinforces the strict application of procedural rules in Zimbabwean civil litigation, particularly regarding the consequences of being barred and the proper procedure for upliftment of a bar under Rule 84 of the High Court Rules 1971. It clarifies that a plaintiff is entitled to proceed to default judgment once a defendant has been properly barred, even if the defendant has indicated an intention to defend. The case confirms that there is no duty on a plaintiff to request a barred defendant to regularize their position before seeking default judgment. It also illustrates the principle that litigants bear responsibility for procedural compliance and cannot rely on their legal practitioners' errors without following proper remedial procedures. The judgment emphasizes the courts' commitment to upholding procedural rules to maintain the integrity of the litigation process.