Tapera D. Mabuwa and Lucy Mauraeni Nyahuni Sazia v Lugen Sibanda and Registrar of Deeds and Wintertons Legal Practitioners

The plaintiffs obtained an order for joinder of a second plaintiff and third defendant (Wintertons Legal Practitioners) on 28 September 2015, which required the third defendant to file its plea within 10 days. Without giving notice of intention to amend, the plaintiffs filed two "amended declarations" on 8 October 2015 and served these on the same day, along with the order of joinder. The first defendant had already filed a plea on record. On 11 December 2015, the plaintiffs filed a chamber application for default judgment against the defendants. The court noted various procedural irregularities and advised the plaintiffs through correspondence dated 18 December 2015 to rectify these. The plaintiffs responded asserting compliance with the rules, and the matter proceeded for determination.

• Whether default judgment can be granted when a plea has been filed of record and remains extant
• Whether the plaintiffs complied with the procedural requirements for obtaining default judgment under Order 12 of the High Court Rules
• Whether the plaintiffs properly amended their declaration in accordance with Order 20 of the High Court Rules
• Whether service of the order of joinder by the plaintiff personally was proper under Order 5 r 37 of the High Court Rules

The application for default judgment was dismissed.

Where a plea has been filed of record and remains extant without any exception or application to strike it out having been made, an application for default judgment must fail. An application for default judgment cannot be made in default of plea without first giving notice to plead and notice of intention to bar in accordance with Order 12 r 80, and filing a notice to bar with the Registrar in terms of r 81. Service of an order of court must be effected by the sheriff or his deputy in terms of Order 5 r 37(1), which is a peremptory provision allowing no discretion to depart from it. Order 20 r 115 only permits modification of a claim stated in a summons when the summons was filed separately from the declaration; amendment of a declaration filed together with a summons requires compliance with r 132.

The court observed that it would confine itself to the documents filed of record in the application for default judgment and would not address peripheral issues raised by the plaintiffs in correspondence subsequent to 18 December 2015, reinforcing the principle that an application must stand and fall on the documents before the court. The court also noted that the plaintiffs acted under various mistaken beliefs about the effect of the joinder order and their rights to amend pleadings and effect service, suggesting a lack of proper understanding of procedural rules.

This case provides important guidance on compliance with procedural requirements for obtaining default judgment in Zimbabwe. It emphasizes that courts will strictly enforce the High Court Rules regarding: (1) the inability to obtain default judgment where a plea remains on record; (2) the mandatory requirement to follow Order 12 procedures (notice to plead, notice of intention to bar, and filing notice to bar) before seeking default judgment; (3) the proper procedure for amending pleadings under Order 20; and (4) the peremptory requirement that service of court orders be effected by the sheriff or his deputy. The judgment underscores that procedural rules are not mere technicalities but must be strictly complied with, and parties cannot take shortcuts or make self-serving interpretations of the rules.