Michael Taremba (in his capacity as Executor in the Estate of the late Joseph Patrick Taremba) v Nyada Phiri

1

                                                                           HH 153-11
                                                                          HC 5277/10


MICHAEL TAREMBA
(in his capacity as Executor in the Estate of the late Joseph Patrick Taremba)
versus
NYADA PHIRI



HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 2 March and 28 July 2011

Opposed application

T. Tandi for applicant
E. Gijima for respondent

      CHITAKUNYE J. The applicant is the son of the late Joseph Patrick Taremba
who died on 24 December, 2004 at Mutare. Applicant was duly appointed Executor
Dative in the estate late Joseph Patrick Taremba on 15 October 2009.

      The respondent is a male adult residing at Number W629 Amaveni, Kwekwe.
This property is registered in the name of the late Joseph Patrick Taremba under
Deed of Transfer No. 1182/05.

      After the death of his late father applicant attempted to evict respondent
from the said property to no avail.

      On 2 August 2010 the applicant, in his capacity as Executor, filed this court
application seeking an order for the eviction of respondent and all those claiming
occupation through him from house No. W629 Amaveni, Kwekwe. The respondent
opposed the application. On 13 September 2010 the applicant filed his answering
affidavit. On 18 October 2010 applicant’s heads of argument were duly filed with
court and served on the respondent on 19 October 2010. Thereafter the
respondent was expected to file his heads of argument in terms of the rules.

      In this regard rule 238 (2a) of the High Court Rules 1971 provides that:-
                                                                                      2

                                                                             HH 153-11
                                                                            HC 5277/10


          “Heads of argument referred to in subrule (2) shall be filed by the
          respondent’s legal practitioner not more than ten days after the heads of
          argument of the applicant or excipients, as the case may be, were delivered
          to the respondent in terms of subrule (1);

Provided that-

   (i)        no period during which the court is on vacation shall be counted as part
              of the ten- day period;

   (ii)       the respondent’s heads of argument shall be filed at least five days
              before the hearing.”

          In terms of the Rules the respondent was required to file his heads of

   arguments within a period of not more than 10 days from the date of receipt of

   the applicant’s heads of argument. As the applicant’s heads of argument were

   served on 19 October 2010 respondent had 10 days there from within which to

   file his heads of argument but did not do so. The respondent’s heads of

   argument were only filed on 17 February 2011. The respondent was obviously

   late in filing the heads of argument.

          Subrule (2b) of Rule 238 provides that-

          “Where heads of argument that are required to be filed in terms of subrule
          (2) are not filed within the period specified in subrule (2a), the respondent
          concerned shall be barred and the court or judge may deal with the matter
          on the merits or direct that it be set down for hearing on the unopposed
          roll.”

           By virtue of subrule (2b), respondent was automatically barred. A party

   barred in these circumstances may apply for the upliftment of the bar.
                                                                                     3

                                                                             HH 153-11
                                                                            HC 5277/10


        In casu respondent’s legal practitioner did not apply for the upliftment of the

   bar before or after the late filing of he heads of argument despite

   acknowledging that he was barred for late filing of the heads of argument.

   When the parties appeared before me on 2 March 2011 respondent stood

barred. When this fact was raised counsel for respondent conceded as much. He

also conceded that no application for the upliftment of the bar had in fact been

made.

   As the respondent was barred and had not applied for the upliftment of the bar

respondent could not be heard on the merits.

   Though the rules provide that court may deal with the matter on the merits or

refer the matter to the unopposed roll, after a careful consideration of the option I

was inclined to agree with MAKARAU J in Shadreck Vera v Imperial Asset Management

Company HH50/06 wherein when faced with a similar situation said, at p 3 of the

cyclostyled judgment, that-

   “It is my further view that as the bar against a respondent in such
   circumstances is automatic and brings about a technical default, a review of
   either case at this stage of the proceedings, though provided for in the rules,
   will unnecessarily fetter the discretion of a future court that may be seized with
   an application to rescind the default judgment that the applicant is entitled to
   at this stage.”

   I am of the view that instead of referring the matter to the unopposed roll a

default judgment may be issued and avoid the incurring of further costs by the

parties.
                                                                                      4

                                                                           HH 153-11
                                                                          HC 5277/10


   Accordingly a default judgment will be entered for applicant as follows:-

It is ordered that:-

   1. The respondent and all those claiming occupation through him be and are
      hereby ordered to vacate Stand 3112 Kwekwe Township of Queque
      Townlands, also known as Number W629 Amaveni, Kwekwe within 48 hours
      of the date of service of this order.

   2. Should the respondent fail to vacate within the period indicated above, the
      deputy sheriff be and is hereby authorized to evict the respondent and all
      those claiming occupation through him from the said property.

   3. The respondent shall bear the costs on a legal practitioner and client scale.




Kantor and Immerman, applicant’s legal practitioners
Magodora and partners, respondent’s legal practitioners.