Court name
Supreme Court of Zimbabwe
Case number
SC 59 of 2007
Civil Appeal 224 of 2006

Grain Marketing Board v Muchero (224/06) (SC 59 of 2007, Civil Appeal 224 of 2006) [2008] ZWSC 59 (10 March 2008);

Law report citations
Media neutral citation
[2008] ZWSC 59
















REPORTABLE ZLR
(53)





Judgment
No. SC 59/07



Civil Appeal No 224/06






GRAIN MARKETING BOARD v MARTIN MUCHERO





SUPREME COURT OF
ZIBABWE


CHEDA JA, GWAUNZA JA &
GARWE JA


HARARE, JUNE 17, 2007 &
MARCH 11, 2008








H
Zhou
, for the appellant


J
B Wood
, for the respondent







GARWE JA: The background giving rise to this appeal is in the main
common cause. The respondent, who was the Chief Executive
Officer of
the respondent, was suspended from his employment following
allegations of misconduct leveled against him. Owing to
the position
he occupied with the appellant, difficulties arose as to which
disciplinary proceedings were applicable to him. The
respondent
thereafter filed an application in the High Court challenging his
suspension. That application was dismissed on the
basis that the
same matter was pending before the Labour Court. The respondent then
appealed to this Court and after due consideration
this Court
remitted the matter to the High Court but further gave the appellant
leave to file its opposing papers within fourteen
days of the date
of the order. The appellant, as it so happened, failed to file its
opposing papers within the stipulated time.
The matter was then set
down again before the High Court. Both parties were legally
represented. It was common cause that having
failed to file its
opposing papers within fourteen days as stipulated by this Court, the
appellant was automatically barred. The
High Court, however,
proceeded to deal with the matter on the merits and concluded that
the suspension was a nullity. The court
also found that no
application to uplift the bar had been made. For those two reasons
the court a quo declared the suspension a nullity.







The appellant has now appealed to this Court against this decision.
In particular the appellant submits that an oral application
was
made before the court a quo. The court a quo should
therefore have adjudicated on that application first. The appellant
further submits that it was improper for the court
a quo to
deal with the case on the merits without adjudicating on the
application to uplift the bar. In any event, so the appellant

further argues, the court a quo erred in dealing with the
merits of the application in a situation where a default judgment was
to be granted. The appellant’s
prayer is for the matter to be
remitted so that the court a quo can make a decision on the
application for the upliftment of the bar.







The respondent on the other hand submits that the court a quo
heard argument on the merits from both parties. The court then made
a decision on the merits. Whether or not the appellant made
an
application to uplift the bar is immaterial. The court was satisfied
that the appellant did not have a defence on the merits
and was not
prepared to lift the bar. The respondent further argues that in his
grounds of appeal the appellant is not challenging
the decision on
the merits.







What happened at the hearing is not entirely clear from a perusal of
the record. It is apparent, however, that the opposing papers
had
indeed been filed but out of time. The appellant was therefore
barred. The appellant’s legal practitioner has submitted
in his
heads of argument that an oral application to uplift the bar was made
before the court. It was in that context that the
legal practitioner
told the court a quo that the delay in the filing of the
papers had been occasioned by ill health on his part. The judgment
of the court a quo confirms
that the legal practitioner made this
submission. This contention does not seem to be disputed by the
respondent. In p 9 of his
heads the respondent states as follows:



“9. Whether or not the procedure adopted by the appellant amounted
to         application
to
uplift the bar is immaterial. The learned Judge was not
        satisfied with that

procedure and was not prepared to uplift the bar on the         basis
thereof. The appellant
had ample time within which to make a written
        application and
having chosen not
to do so, must live with the
        consequences”.











It is apparent in the circumstances that an oral application to
uplift the bar was made before the court a quo. The court did
not determine that application immediately but instead proceeded to
hear argument from both parties on the merits.
The court then made a
decision on the merits and also concluded that no proper application
to uplift the bar had been made. The
trial Judge has remarked in his
judgment that the lawyer told the court “that the delay was due to
him being taken ill.”
I accept therefore that an oral application
was made by the appellant before the court a quo.







The main issue for determination by this Court is whether the trial
court erred, as contended by the appellant, in failing to
adjudicate
on the application to uplift the bar. Other subsidiary issues that
have been raised in the heads of argument are whether
the court a
quo
erred when it dealt with the matter on the merits and whether
the appeal should be dismissed on the basis that the appellant has

not challenged the finding of the court a quo on the merits.







Rule 233 of the Rules of the High Court of Zimbabwe provides:



“233. Notice of opposition and opposing affidavits




  1. …



  2. …


  3. A
    respondent who has failed to file a notice of opposition and
    opposing             affidavit

    in terms of subrule (1) shall be barred.”










Rule 239 provides:



“239 Hearing of application



At the hearing of an application –







  1. …








  1. …








Provided that if one of the parties has been barred the court shall
deal with this application as though it were unopposed unless
the bar
is lifted.”










Rules 83 and 84 provide:



“83. Effect of bar



Whilst a bar is in operation -



  1. the
    registrar shall not accept for filing any pleading or other
    document from the part barred; and








  1. the
    party barred shall not be permitted to appear personally or by legal
    practitioner in any subsequent proceedings in the action
    or suit;







except for the purpose of applying for the removal of the bar:







84. Removal of bar



(1) a party who has been barred may –



  1. make
    a chamber application to remove the bar; or








  1. make
    an oral application at the hearing, if any, of the action or suit
    concerned; and the judge or court may allow the application
    on such
    terms as to costs and otherwise as he or it, as the case may be,
    thinks fit;







  1. …












It is clear from the above provisions that once a party is barred the
matter is treated as unopposed unless the party so barred
makes an
application before that court for the upliftment of the bar. It is
also clear that in making the application to uplift
the bar the party
that has been barred can either file a chamber (not court)
application to uplift the bar or where this has not
been done the
party can make an oral application at the hearing.







The practice in the High Court, so far as I am aware, is that only in
very few instances have oral applications to uplift the bar
been
entertained by the Court. This is because in such a case the
applicant must explain the reason for the delay, and thereafter

convince the court that he has a bona fide defence on the
merits. Most Judges of the High Court believe this cannot properly
be done by oral application as the other party
would not have been
afforded the proper opportunity to prepare and possibly contest the
application. In practice where such an
application is made, the
court will direct that a written application be filed. In that event
the court will postpone any decision
on the merits pending the
determination of the application to uplift the bar. The court may
also give a time limit within which
any such application is to be
made as well as order the payment of the wasted costs by the party
seeking the postponement. As
stated by HARTHORN JA in Abramacos v
Roman Gardens (Pvt) Ltd 1960 R & N 1
(SR)at p 2:



“… a defendant ought not to be deprived of the opportunity of
having an application for condonation disposed of before default

judgment is given against him where, as here, there appears to be an
adequate explanation why that application is not properly
before the
court … .”











The Judge continued at p 3:



“… In those cases in which the defendant’s counsel has asked
for a postponement in order to enable a proper application for

removal of the bar to be made and has given a satisfactory
explanation why such an application was not then before the court, I

have treated the appearance as the first step in an application for
the removal of the bar, and granted the postponement … .”










I am satisfied that the court a quo erred when it failed to
deal with the application to uplift the bar. If the court was of the
view that the appellant should have
filed a written application then
it should have said so and proceeded to grant a postponement for such
application to be filed.
As already noted, the court could have
allowed the postponement on such conditions as it deemed necessary.
Once the application
to uplift the bar had been made, the court
became seized with the matter. The court was enjoined to make a
determination on that
application. It did not do so. Instead it
proceeded on the basis that there was no such application before the
court. In this
regard the court erred.







I am satisfied that the trial Judge erred in disregarding the oral
application and proceeding as if none had been made.







The Rules of the High Court permit a court to deal with a matter on
the merits where the respondent has been barred for failure
to file
heads of argument on time. See rule 238(2)(b). The Rules however,
do not make provision for a matter to be dealt with
on the merits
where the respondent has been barred for failure to file opposing
papers. Rule 236(1) specifically provides that
where the respondent
has been barred for failure to file opposing papers the applicant
may, without notice to the respondent, set
the matter down on the
unopposed roll in terms of r 223(1)(e).







Given these specific provisions I agree with the appellant that it
was irregular for the trial court to hear argument on the merits
of
the case from both parties. At best the matter should have been
treated as unopposed until and unless an application to uplift
the
bar had been made and granted. As the matter was unopposed the trial
court should have granted a default judgment in the event
that it
dismissed the application to uplift the bar.







The respondent has submitted that there is no appeal against the
decision of the court a quo on the merits. That is indeed
correct. It is clear, however, that the appellant seeks an order
setting aside the decision of
the trial court and remitting the
matter to that same court for a determination of the application to
uplift the bar. Once it
is accepted that there was a failure to
determine the application to uplift the bar then the decision on the
merits would be incompetent
and cannot stand.







The appeal must therefore succeed. I therefore make the following
order:




  1. The appeal is allowed with costs.



  2. The order of the court a quo is set aside.



  3. The matter is remitted to the court a quo for the
    determination of the application for the upliftment of the bar.
















CHEDA JA: I agree















GWAUNZA JA: I agree















Muzangaza, Mandaza & Tomane, appellant’s legal
practitioner



Byron, Venturas & Partners, respondent’s legal
practitioner