The first respondent obtained a default judgment against the applicants on 24 February 2016. The applicants had been present at pre-trial conferences on 10 and 22 February 2016, represented by a legal practitioner and two representatives. The matter was postponed to 24 February 2016 for parties to consult with a consulting engineer. On 24 February 2016, the applicants' legal practitioner attended chambers and indicated that based on the engineer's report there was no need to pursue the case, but the applicants' representatives did not attend court. The legal practitioner left without concluding the matter and default judgment was granted. The first respondent subsequently engaged the applicants for payment without success. On 26 September 2016, the Sheriff served a writ of execution and notice of attachment at the first applicant's business premises. The applicants then approached the court on a certificate of urgency seeking a stay of execution pending determination of their rescission application filed under HC 9779/16.
The application was struck off the roll with costs.
Where a party fails to comply with the High Court Rules, particularly Rule 241(1) requiring chamber applications to be in Form 29 with appropriate modifications when served on an interested party, such non-compliance may be fatal to the application. A party seeking condonation for non-compliance with the rules must make a formal application for condonation and provide plausible reasons for the failure to comply. The court does not grant condonation of its own accord; it is the application that triggers the exercise of the court's discretion. Legal practitioners have an obligation to comply with the rules of court and cannot expect condonation merely because they prepared a matter urgently or in haste without providing proper explanation and making a formal application.
The court observed that where a party has previously dealt with a representative in the main matter and at various stages including pre-trial conferences, that party has by virtue of such dealings accepted the representative's authority to act on behalf of the principal. The court also commented on litigants who use available processes to delay the inevitable, noting that applicants who are not candid with the court about circumstances leading to default judgments and who knew about the stage the case had reached but opted to default demonstrate conduct not eager to reach finality in litigation.
This case reinforces important principles regarding compliance with High Court Rules in Zimbabwe. It emphasizes that legal practitioners cannot treat non-compliance with procedural rules as immaterial or expect courts to grant condonation without a formal application. The case serves as a reminder that parties must strictly comply with the forms prescribed by the rules, particularly Rule 241(1) regarding chamber applications. It also demonstrates the court's intolerance for litigants who attempt to use procedural mechanisms to delay execution of judgments when they have not been candid with the court about the circumstances leading to the judgment.