Palatial Gold Investments (Private) Limited v Daniel Banda

The plaintiff (Palatial Gold Investments) was the owner of an immovable property known as Colney House, Chakari. The defendant (Daniel Banda) was in occupation of the property. The plaintiff alleged that the defendant's continued occupation was without consent and wrongful. The defendant had previously been employed by a company that was taken over by the plaintiff, and had been allocated the house as part of his employment. The plaintiff alleged that the defendant subsequently found other employment and repudiated his previous employment contract, thus losing his right to occupy the house. The plaintiff made demand for the defendant to vacate the property, but the defendant refused to deliver vacant possession. The plaintiff claimed holding over damages of USD$450 per month from 1 January 2018. At the pre-trial conference scheduled for 10 March 2020, the defendant and his legal practitioner failed to appear despite proper service of the notice of set down on 4 March 2020 at the defendant's legal practitioners' offices.

• Whether the defendant's defence should be struck out for failure to attend the pre-trial conference
• Whether a court may grant default judgment for eviction and holding over damages (unliquidated damages) by chamber application at a pre-trial conference
• The proper procedure for seeking default judgment in claims that are not for a debt or liquidated demand only
• The scope of the court's powers under Rule 182(11) of the High Court Civil Rules at a pre-trial conference

The court ordered: (1) The defendant's defence is struck off for default at pre-trial conference; (2) The plaintiff may seek default judgment for eviction and holding over damages by application made in terms of Rule 58 as read with Rule 223 of the rules of court; (3) The prayer for costs is reserved for determination in an application brought in terms of paragraph (2).

A pre-trial judge may strike out a defendant's defence for failure to attend a pre-trial conference, but cannot grant default judgment for eviction and holding over damages by chamber application at the pre-trial conference itself. Such relief does not constitute "a debt or liquidated demand only" as required by Rule 57 of Order 9 of the High Court Civil Rules. Claims for eviction and holding over damages must be pursued through an application under Rule 58 read with Rule 223, which requires the matter to be set down on the unopposed roll. While Rule 182(11) grants wide powers to pre-trial judges to "make such other order as may be appropriate" when dealing with defaults, this does not automatically allow the granting of all forms of relief without following the proper procedural requirements for the specific type of claim involved.

The court observed that the wide powers granted under Rule 182(11) could potentially be used to expeditiously dispose of matters where the defendant is in default and the claim is not for a debt or liquidated demand only. The pre-trial judge may accede to hearing evidence in support of unliquidated demands and grant relief to the extent proven, directing that evidence be led by affidavit or in open court. However, such disposal should be invoked where the plaintiff specifically requests it and the judge finds that he or she can conveniently dispose of the matter in that manner. The judge noted that since Rule 58 provides for judgment in matters which are not for a debt or liquidated demand only, it remains in the discretion of the judge whether to dispose of the matter through an alternative procedure or by reference to Rule 58.

This case is significant in Zimbabwean civil procedure as it clarifies the limitations on granting default judgment at pre-trial conferences. It establishes important procedural distinctions between claims for liquidated demands (which can be granted by chamber application under Rule 57) and claims for unliquidated demands such as eviction and holding over damages (which must follow the Rule 58 and Rule 223 procedure). The judgment also interprets the scope of the wide powers granted to judges under Rule 182(11) at pre-trial conferences, noting that while judges have discretion to expeditiously dispose of matters where a party is in default, this should be done appropriately and with the plaintiff's request for such a procedure. The case provides important guidance on procedural compliance and the proper channels for obtaining default judgment depending on the nature of the relief sought.