Speedex (Private) Limited v Wedzera Petroleum (Private) Limited

On 27 February 2012, the applicant filed a court application in terms of rule 233(3) seeking to evict the respondent from 29 Craster Road, Southerton, Harare. The application was served on the respondent on 28 February 2012. In terms of the rules of court, the respondent had ten days to respond. The dies inducae expired on 13 March 2012 without any response from the respondent. However, the respondent filed its notice of opposition one day late on 14 March 2012. Despite the filing of the notice of opposition, the applicant proceeded to file an application for default judgment the next day (15 March 2012) and set down the matter on the unopposed roll on 4 April 2012.

• Whether default judgment should be granted where the respondent filed a notice of opposition one day out of time
• Whether the applicant was required to give notice to the respondent of the alleged procedural irregularity before applying for default judgment
• What procedural steps should be followed when a party files opposition out of time but the irregularity is minimal

The application for default judgment was dismissed. The court ordered that default judgment shall not be granted until such time as the applicant has complied with the proper procedural steps (giving notice of irregularity to the respondent). Costs were ordered to be costs in the cause.

Where a defendant files a notice of opposition out of time but the delay is minimal (one day), and the plaintiff applies for default judgment without first giving the defendant notice of the procedural irregularity, the court should exercise its discretion in favour of the defendant and refuse to grant default judgment. Before applying for default judgment in circumstances where there has been an attempt at opposition, a plaintiff's legal practitioner must address due warning to the defendant of the irregularity of the procedural steps and either apply for default judgment (informing the court of the irregularity) or apply to strike out the irregular proceeding. Justice and fairness require that parties not be permitted to 'snatch at judgment' on purely technical grounds where minimal procedural irregularities exist.

The court observed that the fuller and preferable course of action when faced with irregular opposition is an application to strike out the irregular proceeding coupled with a prayer for default judgment, rather than simply applying for default judgment without notice. The court's comment that justice and fairness require stopping the applicant from 'snatching at a judgment' reflects a broader principle that courts should favor substantive justice over technical procedural advantages where the circumstances warrant such an approach.

This case reinforces important principles of procedural fairness in Zimbabwean civil procedure. It emphasizes that courts will exercise their discretion to prevent parties from taking technical advantages where the procedural irregularity is minimal (one day late filing) and where proper notice has not been given. The case demonstrates the court's commitment to substantive justice over strict procedural technicalities, and confirms the continuing authority of the Founders Building Society case regarding the proper procedure to follow when dealing with irregular opposition.