Patience Nyasha Kabanda v Gabriel Kabanda and Others

The applicant and first respondent were divorced by court order in HC 7833/13 on 2 February 2016. A consent paper provided for sharing of immovable property (Stand 159 Philadelphia Township) in the proportion of 40% to the first respondent and 60% to the applicant. The first respondent subsequently obtained a default judgment in HC 8650/18 on 31 October 2018 authorizing the Sheriff to sign sale documents on the applicant's behalf. The applicant had filed a notice of opposition on 9 October 2018, one day late, which was accepted and filed by the Registrar. The first respondent set down the matter on the unopposed roll without notice to the applicant, and the court granted default judgment unaware of the notice of opposition. Pursuant to this order, the property was sold to the second and third respondents through a sale agreement dated 5 September 2019, with transfer effected by deed No 007364/2019 on 6 December 2019. The applicant filed HC 9129/19 in November 2019 seeking to set aside the default judgment under Rule 449(1)(a), and HC 06/20 seeking to set aside the sale and cancel the deed of transfer.

• Whether a default judgment can properly be granted when a notice of opposition, albeit filed out of time, appears on the court record
• Whether the court can ignore an irregular or time-barred notice of opposition without affording the barred party an opportunity to be heard on the issue of bar
• Whether the default judgment in HC 8650/18 was granted in error justifying rescission under Rule 449
• The proper procedure to be followed when an irregular pleading has been filed of record

1. The default judgment granted in case No HC 8650/18 is set aside. 2. The application may be set down on notice to the applicant either on the unopposed or opposed roll to enable the applicant to address the court on the bar in operation. 3. This order does not prevent a proper application for upliftment of bar or other lawful steps to dispose of the matter other than by default judgment. 4. Costs of the application shall be costs in the cause in HC 8650/19. Case HC 06/20 was held over pending resolution of HC 9129/19.

Where a notice of opposition or other pleading has been filed on the court record, even if filed out of time and subject to automatic bar, it is improper and constitutes an error for the court to grant default judgment without notice to the barred party. A barred litigant retains a limited right of audience to apply for upliftment of bar (which may be made orally), and this right must be respected by ensuring that any set down of the matter is done on notice to the barred party. The party seeking default judgment must inform the court of any irregular proceeding and give reasons why the court should exercise its discretion in their favour, or alternatively apply to strike out the irregular proceeding. A default judgment granted in ignorance of an opposition filed on record, even if time-barred, is a judgment granted in error and may be set aside under Rule 449.

CHITAPI J noted that he had previously shared the view that time-barred pleadings are nullities that give rise to no rights or obligations, but explicitly revised his stance in this judgment in favor of the approach requiring notice and an opportunity to be heard. The judge referenced GILLESPIE J's warning in Founders Building Society v Dalib that a party who proceeds to default judgment in circumstances where they may be accused of snatching at judgment may be held accountable for unnecessary proceedings generated by deviousness or pigheadedness. The court also observed that while GILLESPIE J's dicta applied to action matters, the same reasoning must apply to application matters because the barring procedure applies equally to applications, opposing papers, and subsequent pleadings or affidavits. The judge noted that the issue of pre-emption raised by the second and third respondents was more relevant to HC 06/20 and did not answer the procedural issue before the court.

This case clarifies important procedural principles in Zimbabwean civil procedure regarding the treatment of time-barred pleadings and the grant of default judgments. It establishes that even where a pleading is filed out of time and the party is technically barred, the court cannot simply ignore the pleading and grant default judgment without notice. The case reinforces the right of audience of barred litigants to apply for upliftment of bar and emphasizes procedural fairness. It represents a departure from the strict view that time-barred pleadings are nullities that can be completely ignored, instead requiring that barred parties be given notice and an opportunity to address the court on the bar issue. The judgment provides important guidance on the proper procedure when irregular pleadings appear on record.