Judgment No. HB 112/2004
Case No. HC 1600/03
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 6 OCTOBER 2003 AND 2 SEPTEMBER 2004
J Tshumafor applicant
S S Mazibisa for respondent
NDOU J: This is an application in terms of order 23 rule 152 of the High Court (General) Rules, 1971 for an order giving directions as follows:-
‘It is ordered that:-
Leave be and is hereby granted to defendant (applicant in casu) to set down the matter between Lizzie Moyo and Gilton Moyo case number HC 1204/97, as an unopposed matter and to obtain an order of divorce and other ancillary relief in terms of the pre-trial conference minutes dated 20 March 2000.
Defendant be and is hereby granted leave to serve the notice of set down and any other process on plaintiff through her legal practitioners of record, Messrs Cheda and Partners.
The plaintiff pays the costs of this application.”
The brief facts are that the parties were married to each other in February 1991. In May 1997, the respondent issued summons against the applicant for divorce with ancillary relief. The applicant opposed the suit. Pleadings were eventually closed and a pre-trial conference was held before a Judge on 28 July 1999. Both parties were in attendance with their lawyers. The matter was referred to trial with the issues of the matrimonial property being reserved for trial. The respondent changed
legal representation before the trial. The new legal practitioners assumed agency on 7 March 2000. For reasons that are not relevant to this application, the pre-trial conference was reconvened on 24 March 2000. It is not clear whether or not the applicant attended this latter conference but the respondent did not attend. Her erstwhile legal practitioner attended. The outcome of this conference is captured in the Judge’s minute which reflects, inter alia,
“It is ordered that:
The parties have managed to reach agreement. What has been agreed is that the divorce custody of this is summoned [sic] up. In defendant’s synopsis of evidence filed on 15 February 1999.
The outstanding issue was the one regarding the immovable property. It has been agreed that defendant will retain as his property stand 43 Millais Road, Romney Park, Bulawayo. Plaintiff will be paid an amount $10 000,00[sic] in full and final settlement of any claim she may have had in the said property.
It is recorded that [sic] defendant owes plaintiff an amount of $8 000,00 which he agrees to pay her together with the $10 000,00 making a total of $18 000,00.
With regards to the costs each party should bear its own costs.
Plaintiff can now enrol this matter for a divorce on the unopposed roll. This agreement to be incorporated in the said order.”
A consent paper was drafted incorporating the above. The respondent decline
to sign it. Instead, she dispensed with the services of her legal practitioners on the basis that her erstwhile legal practitioner misrepresented her position in the matter at the second pre-trial conference and that the resultant pre-trial conference memorandum was conducted in her absence and without her instructions. The respondent requested a further pre-trial conference.
Ultimately this application was made arising from these facts. What is the effect of the contents of a pre-trial memorandum or minute? Contextually, order 26
rule 182 requires the parties to an action to hold a pre-trial conference with the object of reaching agreement on as many aspects of the matter as possible with the object of curtailment of the proceedings. The object is to facilitate settlement discussions, timeous consideration of specific topics and protection a party against costs required to ward off an opponent who is unable to proceed to trial or is not serious about doing so – see also rules 183 and 184 and Chisnall & Chisnall v Sturgeon & Sturgeon 1993(2) SA 642 (W); Lekato v Editor “Tribute” Magazine & Anor 1995(2) SA 704 (W) and the Judge President’s Practice Direction Number 1 of 1995. Another relevant factor is that, this being a matrimonial matter personal notice of set down on respondent would be required in the event that the matter is set down on the unopposed roll by the applicant. The respondent would be entitled to appear at the motion court hearing and be heard. At that stage she can still challenge the relevant part of the pre-trial memorandum. In that event, then the matter will inevitably be referred for trial on the disputed issue – order 35 rule 272(2) (b); Strydom v Strydom HB-44-03; Le Roux v Le Roux 1957 R & N 831 (SR); Road v Road 1947(2) SA 722 CPD.
The respondent has refused to sign the consent paper. She wants to be heard on the question of the distribution of the matrimonial property. She did not attend in person the pre-trial conference where the agreement on the distribution of the matrimonial property was reached. Normally she should have attended the conference with her legal practitioner, unless, for good cause, applied to Judge for her to be excused – paragraph 10 of the Practice Direction No 1 of 1995, supra. There is no averment in the application that was done in this case.
In the circumstances if I direct as prayed by the applicant, I will in essence be ruling that even if she was not part of the conference, she is bound by the concessions made allegedly on her behalf by her erstwhile legal practitioners in her absence. I will effectively deny her the opportunity afforded to her by rule 272(2)(b), supra to lead evidence on the admissibility of conference memorandum against her. In this regard I refer to what McNALLYJA said in Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 213A. Although in that case the learned Judge of Appeal was dealing with an application for rescission, I hold that view that the statement is of equal application to the facts of this case. The learned Judge of Appeal observed –
“One is naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard, when he protests that he has a valid defence. If I were convinced that the defendant in this case was bona fide and had a prima facie defence, then I might be unjustified in condemning him for so short despite the inadequacy of his explanation.”
In my view, that interests of justice demand that I allow the respondent an opportunity, in a trial to establish that the concession by her legal practitioner were made without her knowledge or instructions. If she fails to do so, obviously the trial court will be in a position to deal with the issue.
In the circumstances I direct that the matter in case number 1207/97 be and is hereby referred to trial. The issue of whether the pre-trial conference of 7 March 2000 was held pursuant to the respondent’s instructions to her erstwhile legal practitioner and the effect of the pre-trial memorandum is to be dealt with at the trial.
Webb, Low & Barry,applicant’s legal practitioners
Cheda & Partners, respondent’s legal practitioners