Walktall (Pvt) Ltd v Shepherd Tundiya

The plaintiff and defendant entered into a lease agreement in respect of Stand No. 50 Kwekwe (also known as No. 10 Nelson Mandela Way, Kwekwe). A dispute arose and proceedings were instituted. On 26 February 2013, a pre-trial conference was scheduled before Hungwe J. That conference was postponed sine die on specific conditions that the parties would convene their own conference to settle the matter, and if unsuccessful, file a minute setting out agreed and disputed matters. On 16 September 2013, when the matter was scheduled to continue, the defendant failed to appear at the pre-trial conference. The defendant's legal practitioner explained that the defendant was appearing in the magistrate's court in Kwekwe. The plaintiff applied for the striking out of the defendant's defense and counterclaim, and for judgment in default of appearance. By the date of the application, the defendant owed arrear rentals of US$85,250.00 as at 1 July 2012.

• Whether the defendant was in wilful default of appearance at the pre-trial conference
• Whether the defendant's explanation of being at the magistrate's court was a valid excuse for non-attendance
• Whether the plaintiff was entitled to have the defendant's defence and counterclaim struck out under Rule 182 of the High Court Rules, 1971
• Whether judgment in default should be entered in favor of the plaintiff

The court made the following order: 1. The defendant's defence and counterclaim were struck out. 2. The lease agreement between plaintiff and defendant in respect of Stand No. 50 Kwekwe (No. 10 Nelson Mandela Way, Kwekwe) was cancelled. 3. The defendant and all those claiming through him were directed to vacate the premises forthwith, failing which the Deputy Sheriff, Kwekwe, was authorized to eject them. 4. The defendant was ordered to pay the plaintiff US$85,250.00 in arrear rentals as at 1 July 2012, together with interest at 10% per annum from 1 August 2012 to date of payment in full. 5. The defendant was ordered to pay holding over damages at the rate of US$83.33 per day from 1 August 2012 to the date of vacation or ejectment. 6. The defendant was ordered to pay collection commission calculated in accordance with By-Law 70 of the Law Society By-Laws, 1982. 7. The defendant was ordered to pay costs on the legal practitioner and client scale.

The binding legal principle established is that: (1) The High Court takes precedence over the magistrate's court in Zimbabwe, and parties appearing in both courts must prioritize High Court proceedings; (2) A party who fails to attend a pre-trial conference scheduled in terms of Rule 182 of the High Court Rules, 1971, without valid justification, is in wilful default; (3) Attendance at a magistrate's court does not constitute a valid excuse for non-attendance at a High Court pre-trial conference when the party could, with appropriate diligence, have arranged to attend the High Court proceeding; (4) Where a defendant is in wilful default of compliance with a court directive regarding a pre-trial conference under Rule 182(11), the court is entitled to strike out the defendant's defence and counterclaim and enter judgment in default in favor of the plaintiff.

The court observed that Rule 182 of the High Court Rules, 1971 is a useful tool aimed at disposing or curtailing proceedings, and that a party wishing to have their matter dealt with expeditiously need only comply with this rule to achieve that goal. The court also noted that the defendant's failure to attend, despite having filed a counterclaim, suggested that he was either unwilling or disinterested in the expeditious disposal of the matter relating to both the plaintiff's claim and his own counterclaim.

This case illustrates the importance of compliance with court directives and the proper operation of Rule 182 of the High Court Rules, 1971 regarding pre-trial conferences. It reinforces the principle of court hierarchy in Zimbabwe, establishing that the High Court takes precedence over the magistrate's court. The case demonstrates the consequences of wilful default in appearing at pre-trial conferences, including the striking out of defences and counterclaims, and the entry of judgment in default. It emphasizes that parties must exercise appropriate diligence in arranging their affairs to comply with court orders and attend scheduled proceedings, and that failure to do so without valid justification will result in adverse consequences.