Pinelong Investments (Pvt) Ltd v Thomas Vallance and Paraddigm Trust (Pvt) Ltd

On 26 July 2008, the applicant issued summons for eviction against the respondents. The summons were served on the second respondent who accepted service on behalf of the first respondent. The dies induciae expired on 6 August 2008. The first respondent entered an appearance to defend for himself and on behalf of the second respondent on 6 August 2008, but did not serve the notice on the applicant's legal practitioners until 14 August 2008 (in the afternoon). On the morning of 14 August 2008, the applicant filed an application for default judgment, which was returned by a Judge noting that appearance to defend was entered timeously on 6 August 2008. The applicant's legal practitioners wrote to the first respondent on 20 August 2008 pointing out irregularities in the notice of appearance to defend, including: (1) failure to serve within 24 hours as required by Rule 49; (2) non-compliance with Form No. 8; and (3) the first respondent (an individual) entering appearance on behalf of the second respondent (a company) contrary to section 51 of the High Court Act. The respondents did not respond to this letter. On 24 September 2008, the applicant filed an application to have the notice of appearance to defend struck off the record.

• Whether a notice of appearance to defend is irregular for want of timely service on the plaintiff's legal practitioners as required by Rule 49 of the High Court Rules
• Whether an irregular notice of appearance to defend should be struck off the record when the appearance was entered timeously but not served within the prescribed 24-hour period
• Whether an individual can enter an appearance to defend on behalf of a corporate entity without legal representation

The application was dismissed. The applicant was ordered to pay the second respondent's costs.

Where a defendant enters an appearance to defend timeously in accordance with the rules, but fails to serve notice of such appearance on the plaintiff's legal practitioners within the 24-hour period prescribed by Rule 49 of the High Court Rules, the notice is irregular but the irregularity does not warrant striking it off the record. The plaintiff's remedy lies in claiming costs for any wasted application for default judgment. The court will not grant default judgment when it is aware that appearance has been entered, even if service was defective. A corporate entity has no right of audience before the High Court except through legal representation, and an individual cannot enter appearance to defend on behalf of a company without such representation or leave of court.

The court observed that Rule 49 is couched in peremptory terms to assist in the expeditious resolution of disputes and to avoid incurring unnecessary costs. If notice is not served as required, the plaintiff after expiry of the dies induciae might apply for default judgment, as occurred in this case. The court also noted in passing the exception recognized in Lees Import & Export that a corporate body can appear through its alter ego if leave of the court is sought and obtained, though this exception was not applicable to the facts of the present case.

This case is significant in Zimbabwean civil procedure for clarifying that while failure to serve a notice of appearance to defend within the prescribed 24-hour period renders the notice irregular, such irregularity does not warrant striking off the notice where the appearance was entered timeously. The case establishes that the appropriate remedy for late service is costs, not the drastic measure of expunging the appearance from the record. The case also reinforces the principle that corporate entities cannot appear in court except through legal representation, though it notes exceptions where leave of court is obtained or where the alter ego of the company appears.