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Polythene Products (Z) Limited v Zimba & Another (Appeal 177 of 2015)  ZMSC 40 (08 June 2018);
Civil procedure – Body corporate party to civil proceedings – Must be represented by advocate unless leave of court has otherwise been obtained
Civil procedure – Whether Court is duty bound to advise parties to proceedings
The Respondents commenced this matter against the Appellant in the Subordinate Court of the first class by default writ of summons and an affidavit in support. They claimed the sum of K13 284.00 representing housing allowance and underpayment of lunch allowance. The Appellant was served with the court process and reacted by filing an affidavit in opposition refuting the claims. When the matter came up for hearing on 3rd October 2013, the Appellant was not present. The matter next came up on 16 January 2014. On that day only the Respondents were present. Upon being informed that the Appellant was aware of the date of hearing, the court proceeded to hear the Respondents. The matter was adjourned to 27 February 2014 for judgment.
On 10 February 2014, the Appellant’s applied to arrest judgment pending hearing of the Appellant’s defence. The application was returnable on 21 March 2014 but the Appellant’s counsel did not attend. The court then adjourned the matter to 26 March 2014. The matter next came up on 3 April 2014 and the Appellant’s counsel was still not present. The matter was adjourned for the last time to 10 April 2014. The Appellant’s counsel was again not present on that date and the court dismissed the application to arrest judgment. Judgment was subsequently delivered on 15 April 2014 in favour of the Respondents..
The Appellant appealed to the High Court alleging that the court erred in law and in fact for not allowing it to be heard on its defence despite making several attempts to do so. The appellant also alleged that the court did not advise it that it must be represented by counsel. The High Court judge found that the magistrate had correctly applied the law which empowered the court to proceed where a defendant fails to appear or sufficiently excuse his absence. The High Court dismissed the appeal. The Appellant appealed.
1. A body corporate must be represented in civil litigation by an advocate unless leave has
been previously obtained from the court in exercise of its inherent power to regulate its
own proceedings to be represented by a director or other senior person. Workers
Development Corporation Limited v Davy Mkandawire SCZ Judgment No. 19 of 1999
2. The learned trial judge cannot be faulted for holding that a magistrate has no duty to
advise parties to proceedings. Certainly, there is no law that places such a duty on the
court. In any case, the record shows that the Appellant never appeared before the
Subordinate Court. Even if the magistrate were, out of sympathy rather than duty, to
advise that there was need for the Appellant to engage counsel, it is not clear how that
was going to be done.