NMB Bank Limited v Artin Corporation & 3 Others

### Preamble
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HH 276-2012
HC 10935-2011
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NMB BANK LIMITED

versus

ARTIN CORPORATION & 3 OTHERS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE 28 JUNE 2012

T.C. Masara for the plaintiff

T. Marume for the respondent

Extempore Judgment

MATHONSI J: This matter was set down for pre-trial conference initially for 21 June 2012 and the parties given notice to attend the conference. The defendants did not file their pre-trial  conference minutes and summary of evidence as required by the rules. However, on 21 June 2012 Mr Marume appeared on behalf of the defendants and indicated that he had been unable to file the documents because the defendants had been unco-operative. In fact all the defendants were not in attendance on that date.

At the conclusion of that session I gave the following directions;

“1. I direct that all the defendants should file their pre-trial conference minutes

and synopses of evidence by close of business on 25 June 2012.

2. The parties should convene a round table conference of their own by 27 June

2012 to try and resolve the matter and if they are unable to do so, to prepare a

joint pre trial conference memorandum.

3. Thereafter the parties should appear before me on 28 June 2012 at 10am for a

further conference.”

None of the directions that I issued have been complied with except that Mr Marume has again appeared before me without any of the defendants. He tells of having been in contact with the second defendant by telephone and that the second defendant had promised to visit his office to discuss the matter. He says he has not been able to comply with directions because the  defendants have not been forthcoming.

Mr Masara, for the plaintiff applies that the defendants’ defences be struck out to pave way for default judgment to be sought.

In terms of rule 182 (11) of the High Court of Zimbabwe Rules;

“A Judge may dismiss a party’s claim or strike out his defence or make such

other order as may be appropriate if;-

a party fails to comply with directions given by the Judge in terms of subrule (4) (6), (8) or (10) or with a notice given in terms of subrule (4); and

any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order.”

Clearly the defendants have failed to comply with directions given to them and now the plaintiff has applied in terms of the above cited rule for the striking out of their defences. The defendants are in default and the problems encountered by their legal practitioner are indicative of their disinterest in these proceedings. I also infer that they are buying time.

There must be finality to litigation and the plaintiff is entitled to the protection of the court against the machinations of the defendants, who have exhibited a complete disdain for the process of the court.

Accordingly, I make the following order that;

The defendants’ defences be and are hereby struck out.

Judgment is hereby entered against the defendants jointly and severally, the one paying the others to be absolved, for:

Payment of US$40 274,30

Interest thereon at the rate of 24% per annum from 25 October 2011 to date of payment in full.

Costs of suit as between legal practitioner and client together with collection commission in terms of the Law Society of Zimbabwe By-laws.

V.S Nyangulu & Associates, plaintiff’s legal practitioners

Matsikidze & Mucheche, defendants’ legal practitioners