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Crime Reporter 

The High Court last Wednesday granted a default judgment on a recent court application in which Harare lawyer Mr Puwayi Chiutsi had been dismissed by the same court after he wanted it to set aside a decision by the Sheriff to confirm the sale of his house in Highlands, Harare in favour of his former client Mr Elliot Rodgers after it had been attached.

According to the initial judgement by the then High Court Judge Justice Nicholas Mathonsi, Mr Chiutsi had sought for the order to set aside the confirmation of the sale of the house in pursuance of a court judgment granted on November 4, 2014 in favour of Mr Elliot Rodgers following a wrangle over a sum of US$70 000 trust money. 

The immovable property worth over US$230 000 was purchased by businessman Mr Tendai Mashamhanda in 2019, measuring 4 377 square metres after it had been attached.

Mr Chiutsi had also sought for an application for a declaratur brought by Mr Elliot Rodgers against the Sheriff and Mr Chiutsi also entreating the court to declare that once the Sheriff had issued a determination in terms of the High Court Rules, 1971, where the Sheriff was obliged to pass transfer.

Chiutsi had cited the Sheriff of the High Court as the first respondent while Mr Elliot Rodgers, Registrar of Deeds and Bariadie Investments (Pvt) Ltd as the second and third respondents.

Justice Mathonsi then dismissed Mr Chiutsi’s applications.

However, last week, High Court Judge Justice Tawanda Chitapi, following another application made by Mr Chiutsi over the matter, ordered that the judgement by Justice Mathonsi in case number HC 11349/17 be set aside and that the second and third respondents bear the costs of the application.

In this application, Bariadie Investments (Pvt) Ltd and Mr Elliot Rodgers were cited as the second and third respondents while the Sheriff of Zimbabwe as the first respondents. 

“It is not usual that the judge writes a full judgement in an application for default judgement. The usual procedure for recording a default is to simply grant default judgement and make note of reasons for default.

“In casu, the default judgement was granted on account of the non-appearance of counsel and their clients. When a court considers it necessary to express its displeasure with the parties and counsel’s conduct of proceedings, a judgement is advised because the court speaks through its judgement,” said Justice Chitapi.

He said he had ended up having the default judgement in circumstances which had been necessitated by how the parties and particularly the counsel for the second and third respondents conducted themselves.

“The application was set down for hearing on May 21, 2021 and the second and third respondents counsel without prior notice or warning made applications for my recusal and for dismissal of the application on the basis of a time lapse and that the applicant out to have applied for condonation to file this application out of time. I reserved the judgement.

“On May 27 2021, I dismissed the application for my recusal. I indicated to the litigants that the full reasons for the dismissal would be part of the judgement in the main matter,” he said.

Justice Chitapi said the matter was postponed to June 9, for hearing where he expressed concern over the conduct by some of the lawyers, including Mr Tendai Biti.

“On June 9, when the matter was called, (lawyer) Ms (Diana) Kawenda was now representing the third respondent (Mr Rodgers) in place of Mr (Tendai) Biti. I have recorded the fact of the change in legal practitioners because Mr Biti did not conduct himself in any manner which I found unacceptable since he did not appear before me as from the 9th of June 2021. The second responded for its part was now represented by two counsel after Mr (Thabani) Mpofu appeared with Mr (Tawanda) Mapuranga,” he said.

During the hearing the counsel applied for postponement.

“The date of postponement when they did not appear was set down by consent. It is not acceptable nor professional or ethical for a legal practitioner to fix by consent with the other parties a court date for hearing and counsel just absents himself or herself without any communication to the court or opposite party. It is not acceptable for an officer of the court to make undertaking to appear before the court and then renege on the undertaking without explanation or the courtesy of advising the court.

“If such conduct is not nipped in the bud and corrected, the court’s authority will risk being undermined. The judicial system should not allow counsel who are its officers to be discourteous to the court. It is an abuse of the privilege of practising in those courts for counsel to show disrespect to the court,” Justice Chitapi said.

He added they may have had explanations for non-appearance but what was unacceptable was the lack of communication by them or their instructing legal practitioners on their non-appearance. 

The matter is still pending before the courts after Bariadie Investments approached the Supreme court where judgement was reserved.