Sithembinkosi Dube v Simangele Dube and CM Sibanda

The applicant filed heads of argument on 19 June 2012 and served them on the 1st respondent on the same date. The 1st respondent filed her heads of argument on 5 July 2012, which was eleven days after being served with the applicant's heads. Rule 238(2a) of the High Court Rules, 1971 requires a respondent to file heads of argument within ten days of being served with the applicant's heads. Having filed outside the ten-day period, the 1st respondent was automatically barred. The applicant then set down the matter on the unopposed roll without notice to the 1st respondent. However, when the matter was called, the respondent's legal practitioner was present and contended that the respondent was not barred as her heads were filed more than five days before the set down date. The 1st respondent had filed an opposing affidavit in the matter.

• Whether the 1st respondent was automatically barred under Rule 238(2a) of the High Court Rules, 1971 for filing heads of argument eleven days after being served with the applicant's heads
• Whether the correct interpretation of Rule 238(2a) focuses on the main provision (ten-day period) or the proviso (five days before set down)
• Whether an application where the respondent is barred but has filed an opposing affidavit should be set down on the unopposed roll without notice to the respondent
• Whether a barred respondent is entitled to notice of set down as a matter of procedural fairness

The court ordered that the application be set down with notice to the 1st respondent. There was no order as to costs.

The binding legal principles established are: (1) Rule 238(2a) of the High Court Rules, 1971 is peremptory and automatically bars a respondent who fails to file heads of argument within ten days of being served with the applicant's heads; (2) The operative provision in Rule 238(2a) is the main provision requiring filing within ten days, not the proviso regarding five days before set down (which only applies when service of the applicant's heads occurs close to the set down date); (3) Where a respondent is barred but has filed an opposing affidavit, the application remains opposed and the court must determine the matter on the merits; the respondent simply loses the right to appear and move the court; (4) Procedural fairness requires that a barred respondent who has filed opposing papers must be given notice of set down, and failure to provide such notice prejudices the respondent and warrants setting down the matter afresh with proper notice.

The court made observations about the practice of the Zimbabwean High Court regarding service of notice of set down on barred respondents. Ndou J noted that by practice of the court, matters set down on the opposed roll are always set down on notice to the respondent whether or not that respondent has been barred. The court speculated that this practice may have arisen when set-down of opposed matters was the duty of the registrar upon receipt of the applicant's heads, or it may have some other origin. Whatever the origin, the court observed that this practice has given barred respondents a procedural advantage to be served with notice of set down, and the court expressed reluctance to deprive respondents of this procedural protection. The court also noted approvingly the distinction drawn in Kaufman Brothers Trustees v Gruer regarding the difference between opposed applications where no opposing affidavit is filed versus those where opposing papers are on record but the respondent is barred.

This case reinforces the strict interpretation of Rule 238(2a) of the High Court Rules regarding the automatic bar that applies when a respondent fails to file heads of argument within ten days of being served with the applicant's heads. The case is significant for establishing that even where a respondent is automatically barred for late filing of heads of argument, procedural fairness requires that the respondent be given notice of set down where opposing papers have been filed. The judgment recognizes an important distinction between truly unopposed applications (where no opposing papers are filed) and applications where the respondent has been barred but has filed an opposing affidavit. It affirms the practice of the Zimbabwean High Court that barred respondents who have filed opposing affidavits are entitled to notice of set down as a matter of procedural fairness, even though they have lost the right to appear and argue.