WILLIAM BAIN & CO HOLDINGS (PVT) LTD V CHIKWANDA 2013 (2) ZLR 215 (H)

Practice and procedure — bar — automatic bar for failure to enter appearance to defend — upliftment of — application — what applicant must show — must give reasonable explanation for default and show that he has a bona fide defence on the merits — wilful default — what constitutes

Words and phrases — "wilful default" — what amounts to — willful default akin to a waiver of one's rights

Headnote

For the purpose of r 84 of the High Court Rules 1971 (RGN 1047 of 1971), which deals with the uplifting of the automatic bar in default of an appearance to defend a summons, an applicant must explain the reason for the delay in entering such appearance and thereafter convince the court that he has a bona fide defence on the merits. Difficulties may arise where the application is opposed on the basis that the applicant was in wilful default, which is akin to a waiver of one's rights. An applicant who, with full knowledge of his rights, decides not to follow up on them and fully appreciates the consequences of not doing so, is deemed to have waived his rights. However, while the concept of wilful default may be easy to define, it is seldom clear cut in practice. In most cases, it is a question of the degree of negligence on the part of the applicant, and the court will be called upon to decide whether or not that negligence amounts to willful default. In coming to a conclusion, there is a certain weighing of the balance between the extent of the negligence and the merits of the defence.

Notwithstanding a successful application for the uplifting of the automatic bar, the court ordered the applicant to bear the costs of the respondent's

unsuccessfully opposition thereto where, on the facts, that opposition was not only reasonable but also compelling.

2013 — Volume 2

Cases

2013 — Volume 2

Cases