Patrick Chiremba v Minister of Energy and Power Development and 7 Others

### Preamble
1
HH 217-12
HC 9184/12
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PATRICK CHIREMBA

versus

MINISTER OF ENERGY AND POWER DEVELOPMENT

and

ZIMBABWE ENERGY REGULATORY AUTHORITY

and

CANADA MALUNGA

and

BETTY KATIYO

and

TENDAI MHERE

and

HILDA SHINDI

and

NDOMUPEI CHIKONYE

and

TAPUWA MASHINGAIDZE

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 2 May 2012 and 23 May 2012

Unopposed application

S. Simango, for the applicant

BHUNU J: The applicant lodged this application against the respondents in his capacity as a citizen and consumer of electricity in Zimbabwe. In his application he seeks the nullification and setting aside of the appointments of third to eighth respondents as Board members of the Zimbabwe Energy Regulatory authority and thereafter an order directing the first respondent to make the necessary arrangements to appoint a new board of suitably qualified persons. He also seeks an order interdicting third to eighth respondents from performing or exercising any powers as Board members.

The respondents were served with the application on 21 February 2012. In terms of r 233 (1) they had 10 working days within which to file their notices of opposition. Thus the dice inducae expired on 6 March 2012. The applicant however filed their notices of opposition a day after the expiry of the dice inducae on 7 March 2012.

Despite knowledge of the filing of opposing papers the applicant proceeded to set down the matter on the unopposed role without affording the respondents a chance to deal with the purportedly defective notice of opposition arguing that the respondents have been barred by operation of law in terms of rr 83 and 85.

The case of Founders Building Society v Dalib (Pvt) & Ors 1998 (1) 526 provides a guideline on what a Lawyer faced with such a situation ought to do. The head note reads:

“In any action where the plaintiff’s legal practitioner contemplates applying for default judgment, but is aware of some proceedings being taken by the defendant which is an attempt at opposition but does not constitute due and regular entry of appearance to defend, he ought to address to the defendant or his legal practitioner due warning of the irregularity of the procedural step. Having done so he might then choose between;

An application for default judgment; or

An application on notice to the defendant to strike out the irregular proceeding.

The later application may be joined with an application for default judgment.

If he opts for default judgment, he must inform the Court of the relevant irregularity and give reasons why the Court should exercise its discretion in the plaintiff’s favour. The fuller, and preferable, course is an application to strike out, coupled with a prayer for default judgment”.

Having regard to the fact that the respondents were out of time by merely a day the

ends of justice can best be served by giving the respondents a chance to deal with their apparently defective opposing papers Allowing the applicant to snatch at a judgment as appears to be the case here can only compromise the ends of justice.

It is accordingly ordered that default judgement shall not be granted in this case until such time the applicant has complied with the above procedural steps. Costs shall be costs in the cause.

Nyikadzino, Simango & Associates, applicant’s legal practitioners