National Foods Operations v Perfect Bakery (Pvt) Ltd and Gift Mabvunza

On 2 June 2014, the applicant (National Foods Operations) issued summons against both respondents claiming payment of US$16,817.30 plus 15% interest per annum from 13 January 2014. The first respondent was a registered company and the second respondent was its managing director. The claim was joint and several, one paying and the other to be absolved. The respondents entered appearance to defend on 5 June 2014. The applicant then filed an application for summary judgment on 3 December 2014. At the hearing on 3 February 2015, the applicant withdrew its claim against the first respondent because it had been placed under judicial management, but persisted with the claim against the second respondent. The second respondent had failed to file heads of argument within the prescribed 10-day period as required by Rule 238(2a) and (2b), resulting in being barred. The second respondent's counsel attempted to object to the proceedings and sought to uplift the bar orally at the hearing.

• Whether summary judgment can proceed against the second respondent alone after withdrawal of the claim against the first respondent in a joint and several claim
• Whether the bar against the second respondent for failure to file heads of argument within the prescribed period operates to prevent the respondent from being heard
• What requirements must be satisfied for the upliftment of a bar under Rule 84
• Whether the applicant is entitled to summary judgment under Rule 64

1. The application for removal of the bar against the 2nd respondent was dismissed. 2. Summary judgment was entered against the 2nd respondent for: a) Payment of US$16,817.30 to the applicant; b) Interest on the above sum at 15% per annum from 13 January 2014 to date of payment in full; c) Costs of suit at the ordinary scale.

An application to uplift a bar imposed for failure to comply with court rules must satisfy two essential requirements: (1) it must provide good and sufficient reasons or excuse for the delay in compliance, and (2) it must sufficiently address the applicant's prospects of success on the merits by setting out the facts relied upon for the defence. A mere assertion of a constitutional right to be heard, without articulating the basis of the defence or explaining the delay, is insufficient to justify the upliftment of a bar. When a bar operates under Rule 83, the barred party cannot be heard for any purpose other than applying for upliftment of the bar. In a joint and several claim, withdrawal of the claim against one defendant does not prejudice the remaining defendant, who was always liable for the full amount claimed under the joint and several liability structure.

The court observed that the second respondent's counsel did not appear to have appreciated the effect of a bar when attempting to object to the proceedings. The court also noted that the application for upliftment of the bar was made as an afterthought without careful consideration of the legal requirements. The court remarked that the respondent had been accorded the right to be heard but had wasted that chance by failing to act within the stipulated time frame. The court also commented that there was no substance in the complaint about denial of the constitutional right to fair trial because the opportunity to be heard had been provided and not utilized properly.

This case is significant in Zimbabwean civil procedure for clarifying the strict application of court rules regarding bars and the requirements for their upliftment. It emphasizes that procedural bars under the rules are serious impediments that cannot be easily set aside through oral applications at hearings. The judgment reinforces the principle established in Markides and Hessam v Levendale that applications to uplift bars must satisfy two material requirements: providing good reasons for the delay and demonstrating prospects of success on the merits. The case also clarifies that in joint and several claims, withdrawal against one defendant does not affect the liability of the remaining defendant, who remains liable for the full amount claimed. It serves as a reminder to legal practitioners of the importance of complying with time limits for filing heads of argument and the consequences of non-compliance.