MUSIMWA & ASSOCIATES & ANOR v ZILINDA & ANOR 2015 (1) ZLR 87 (H)

Flynote

Legal practitioner — conduct and ethics — appearance in court — practitioner appearing as party in one matter — also engaged as counsel in a superior court — duty to appear in matter in which he is a party, irrespective of hierarchy of courts — must seek leave to be excused

Practice and procedure — judgment — default judgment — grounds — wilful default — party to matter a legal practitioner — also engaged as counsel in a superior court — duty to appear in matter in which he is a party, irrespective of hierarchy of courts — must seek leave to be excused

Headnote

The appellants were sued by the respondents in the magistrates court. They entered appearance to defend and pleaded to the respondents' claim, leading to the case being set down for a pre-trial conference. The appellants did not attend the pre-trial conference, leading to the respondents applying for a default judgment, which was granted, although the magistrate found that the appellants were not in wilful default. In an application for rescission, the appellants told the magistrate that they had not attended court because the second appellant was appearing in the High Court, which should be given precedence if a legal practitioner's attendance is required in both courts. The respondents submitted that a litigant cannot choose to go to work instead of going to court. The issue on appeal was whether the precedence created by the hierarchy of courts applies where a legal practitioner chooses to go to work instead of attending court as a litigant; in other words, can a litigant deliberately choose to go to work instead of attending court, and not be in wilful default?

Held, that a litigant in a lower court cannot hide behind the hierarchy of the courts to avoid attending his case at the lower court. There is avast difference between a legal practitioner appearing for litigants in the High Court and the magistrates court, and one who is a litigant inthe magistrates court and is also to be representing a client in the High Court. In the former situation, his appearance in the High Court takes precedence. In the latter, his appearing in the magistrates court should take precedence. The reason is simple.litigant cannot come before the court and say "I did not come to court to defend myself against the plaintiff's case, because I had gone to work".legal practitioner goes to the courts to work for his clients. When he is required to go to court as a litigant, he is going there to represent himself as a litigant, and cannot give priority to his own work.litigant who chooses to go to work instead of going to court to prosecute or defend his case, will obviously be in wilful default. This is because attending court takes precedence over going to work. Litigants should excuse themselves from their work so that they can attend court.reasonable litigant seeks a postponement of one of the cases when two cases he is involved in — one as a legal practitioner and one as a litigant — are set down for hearing at the same time. He cannot just stay away in the hope that he will thereafter apply for rescission on the grounds that he was appearing in a superior court for his client. The appellant's failure to contact the magistrates court and the legal practitioner for the respondents or to ask to be excused from one of those appearances were indications that the appellants were in wilful default.