On 1 March 2016, the first applicant (Parkham Enterprises) was placed under Provisional Judicial Management, with the second applicant appointed as Judicial Manager. On 20 August 2020, the first respondent (Adhesive Products Manufacturers) filed an application to discharge the provisional judicial management order, arguing that no meaningful progress had been made in 4 years and that the order was a sham designed to shield the first applicant from paying its debts. The applicants failed to file opposing papers and were automatically barred. On the hearing date, counsel appeared but instead of applying to uplift the bar, persisted in making submissions on the merits despite being advised of the bar. The High Court granted a default judgment on 17 December 2020. The applicants noted an appeal, which was deemed abandoned for non-payment of record preparation costs. After indicating they had paid, they applied for reinstatement of the appeal under rule 70(2) of the Supreme Court Rules 2018.
The application for reinstatement of the appeal was struck off the roll with costs on a legal practitioner and client scale.
A default judgment cannot be appealed against; it can only be set aside through a proper application for rescission. A bar for failure to file opposing papers is not uplifted by a litigant's persistence in making submissions on the merits, but only by a proper application for upliftment of the bar in terms of the applicable rules. Where a party remains barred and the court grants judgment on that basis, the judgment remains a default judgment regardless of whether counsel made submissions. An appeal against a default judgment is a nullity, and consequently an application to reinstate such an appeal is incompetent as one cannot reinstate a nullity.
The Court expressed strong disapproval of counsel's conduct in persisting with arguments after being advised of the bar, describing it as 'unacceptable,' 'a deviation from normal practice,' 'inappropriate,' and 'unnecessarily belligerent towards the court.' The Court noted that such conduct 'serves no useful purpose in litigation.' The Court also observed that the applicants' counsel had been given wise counsel in letters from colleagues advising of the futility of the appeal, and that had this advice been accepted, the proper procedure (rescission application) could have been adopted by the time of this judgment.
This case reinforces fundamental principles of civil procedure in Zimbabwe (and by extension South African jurisprudence given the shared common law heritage): (1) that default judgments cannot be appealed but must be challenged through rescission applications; (2) that a bar for failure to file papers is not uplifted by merely making submissions, but requires a proper application; (3) that persistence in arguing on the merits while barred does not convert a default judgment into a judgment on the merits; and (4) that attempting to appeal a default judgment results in a nullity. The case serves as a cautionary tale about proper procedural compliance and the consequences of ignoring established rules of court procedure.