City of Harare v Evaristo Tiripamwe Mukoreka

### Preamble
1
HH 290-12
HC 11771/11
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CITY OF HARARE

versus

EVARISTO TIRIPAMWE MUKOREKA

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 10 July 2012 and 12 July, 2012

Opposed Matter

C. Kwaramba for the applicant

A. R. Chizikani for the respondent

ZHOU J:  This is an application for the upliftment of the bar which came into operation following the failure by the applicant to enter appearance to defend within the time stipulated in the Rules of Court.  The applicant herein is the defendant while the respondent is the plaintiff in Case Number HC 9909/11 (hereinafter referred to as ‘the main action’).

In October 2011 the respondent issued summons against the applicant claiming $20 000.00, together with interest and costs of suit.  The amount claimed represents damages suffered when the respondent fell into a pit within an area under the jurisdiction of the applicant.  The summons was served upon the applicant on 13 October 2011.  The applicant, through its legal division, prepared a notice of appearance to defend the action.  The notice of appearance to defend was filed at the Magistrates, Court, Harare, instead of it being filed with the Registrar of this Court.  It was not immediately served upon the respondent.  Thereafter there was communication by letter between the applicant and the respondent’s legal practitioners.  Subsequently, the communication was between the parties’ legal practitioners.  In the course of that communication the issue of the appearance to defend was raised.  On 10 November, 2011 the applicant’s legal practitioners filed a notice of appearance to defend.  The applicant was already barred when its legal practitioners purported to enter appearance to defend.  By letter dated 16 November, 2011 the respondent’s legal practitioners reminded the applicant’s legal practitioners that the notice of appearance to defend was irregular.  They also invited the applicant to indicate the nature of its defence to the respondent’s claim as previously discussed in order for the respondent to consider whether or not to consent to the upliftment of the bar.  That letter was delivered to the applicant’s legal practitioners on 18 November 2011.

An application for the upliftment of a bar is in essence an application for condonation of non-compliance with the time limits prescribed by the Rules of this Court.  The principles applicable in the determination of such an application are settled.  These principles are set out in the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717(A), at p 720F-G, as follows:

“It is well settled that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that in essence it is a question of fairness to both sides.  In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success…(on the merits), the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the Court, and the avoidance of unnecessary delay in the administration of justice.  The list is not exhaustive.

These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.”

There is a catena of cases in which the above principles have been consistently accepted.  See Mutizhe v Ganda & Others 2009 (1) ZLR 241(S) at 245C-E;  Maheya v Independent African Church 2007 (2) ZLR 319(S) at 323B-C;  Bishi v Secretary for Education 1989 (2) ZLR 240(HC) at 242E-243C;  Forestry Commission v Moyo 1997 (1) ZLR 254(S) at 260E-G;  Mukandla v Mudzviti & Others HB 92-03;  Nyakambangwe v Jaggers Trador (Pvt) Ltd HH-146-03.

In the instant case the last date for the appearance to defend to be entered was 27 October 2011.  The irregular notice of appearance to defend was filed on 10 November, 2011.  The application for the upliftment of the bar was filed on 25 November, 2011.  In my view the degree of non-compliance with the rules is not considerable in the circumstances.  Also, the explanation tendered by the applicant for the failure to comply with the time limits is reasonable. The filing of the notice of appearance to defend at the Magistrates Court is a case of inadvertence on the part of an employee of the applicant.  The applicant always evinced an intention to defend the action.  It acted timeously in preparing the notice of appearance to defend through its legal division after it had been served with the summons, albeit the notice was then filed in the wrong court.

As regards the prospects of success, the applicant has tendered defences which on the face thereof cannot be rejected out of hand and warrant investigation.  The applicant puts in issue the fact that there was an open pit at the place at which the respondent alleges that the accident occurred.  The applicant also alleges that even if it turns out that there was an open pit, the respondent contributed to the accident through his fault.  In my view these are matters which, if proved in favour of the applicant at the trial, judgment may be entered in its favour.

I have also considered the fact that no judgment has been entered yet.  The respondent is yet to prove both liability and the quantum of damages.

Although the application was opposed, it seems to me that it is just to order that the costs be in the cause.  I do not believe, however, that the applicant requires ten days within which to enter appearance to defend, given the delay which has already been caused by this application.  Five days should be adequate for the filing of the notice of appearance to defend.  Thereafter the other pleadings may be filed in accordance with the rules.

It is accordingly ordered that:

The bar operating against the applicant filing a notice of appearance to defend in Case Number HC 9909/11 is removed.

The applicant shall file its appearance to defend in HC 9909/11 within five days of this order.

The costs of this application shall be costs in the cause.

Mbidzo Muchadehama & Makoni, legal practitioners for the applicant

A.R. Chizikani, legal practitioners for the respondent