Rita Marque Mbatha v Farai Bwatikona Zizhou and Confederation of Zimbabwe Industries

### Preamble
1
HH 392-21
HC 4986/14
---------


RITA MARQUE MBATHA

versus

FARAI BWATIKONA ZIZHOU

and

CONFEDERATION OF ZIMBABWE INDUSTRIES

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 30 June &28 July 2021

Unopposed court application for default judgment

Plaintiff in person

Defendants in default

CHITAPI J: This matter was before me on the unopposed motion roll on 30 June 2021. The plaintiff applied for default judgment against the first and second defendants for payment of USD$500 000 as damages for “shock, non-patrimonial damages, post traumatic disorder, pain and suffering.” The plaintiff also claimed interest from the date of the arbitral award dated 28 March 2014 in an arbitration case between the plaintiff and the second respondent. Lastly plaintiff prayed for costs of suit.  The plaintiff in casu applied for default judgment on the basis as stated by her, that the defendants failed to enter appearance to defend the plaintiff’s summons and were barred.

I postponed judgment on the default judgment because the application referred to several Supreme Court and High Court judgments including the arbitral award. It was necessary for me to check on the records referred to and to authenticate the information supplied by the plaintiff. The plaintiff had filed heads of argument which I needed to properly interrogate after authenticating the paper trial of the case having noted that the case has had a long chequered history. The other reason for the postponement was to enable me to further research on the area of delictual damages for sexual harassment because the area of the law appeared to be largely unchartered with a dearth of decided case law. Unfortunately, for all the troubles I took, it turned out that I would not grant the plaintiff’s application for procedural shortcomings. In order that there is no confusion on the progression of the case given its past history. I considered writing a judgment setting aside out my reasons for the order I will make, to be advised.

The background of this matter is that the plaintiff caused the issue of summons against the defendants herein on 18 June 2014 claiming damages for sexual harassment allegedly perpetrated upon her by the first respondent. The summons was answered by the defendants by way of filing a special plea of prescription. This court by No. HH 93/16 dated 3 February 2016 upheld the special plea and dismissed the plaintiff’s case with costs. That judgment was appealed against by the plaintiff to the Supreme Court. By judgment No. SC 69/2018 dated 30 October 2018, the Supreme Court allowed the appeal and set aside the judgment of the High Court. The order of the Supreme Court read as follows-

“It is accordingly ordered that:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo be and is hereby set aside and substituted with the following:

The defendants’ special plea of prescription

The defendants shall plead to the plaintiff’s claim within ten days from the date of the judgment handed down by the Supreme Court in case No. SC 80/18 as judgment No. SC 69/2018.”

In consequence of the judgment SC 69/2018, defendants were ordered to file their pleas ten days from 30 October 2018. In my calculation, the period for filing the defendants’ plea expired on 14 November 2018.

The defendants failed to file their plea within the period ordered by the Supreme Court as aforesaid. They filed an application for condonation of late filing of their pleas. The application was filed under case No. HC 5921/20. By judgment of this court in case No. HH 592/20, the application for condonation as aforesaid was dismissed with costs on 16 September 2020.

The plaintiff in the absence of an order for condonation was within her rights procedurally to petition the court for judgment in default of plea. The effect of the Supreme Court order in case No.  SC 69/2018 was that it was no longer necessary for the defendants to enter appearance to defend. The defendants failed to act in terms of the Supreme Court order which required them to file a plea(s). The plaintiff application for default judgment was premised on the following grounds which I quote verbatim

“TAKE NOTE THAT Plaintiff will apply for default judgment against the first defendant on the grounds that:

The first defendant having been served with summons

The first defendant not having entered appearance to defend

The time to enter appearance to defend to defence (sic) having expired

WHEREFORE Plaintiff prays for an order as prayed for in the summons.”

In terms of the Supreme Court order, the need to enter appearance to defend by the defendants fell away. Therefore the correct grounds for applying for default judgment should have derived from the defendants’ failure to file their pleas contrary to what the Supreme Court had ordered. It is not the default in entering appearance to defend that entitles the plaintiff to seek judgment. That being the case, the plaintiff’s application is therefore not in order. The following order must ensue.

Disposition

It be and is hereby ordered that the application is struck off the roll.