Opposed
Application
MAKONESE
J: This
is a Chamber Application in terms of Rule 236(3)(b) of the High Court
Rules, 1971.
On
the 20th
March 2013, Applicant obtained default judgment against 1st
Respondent ordering it to effect a reversal of transfer in respect of
a property known as subdivision B of Lot B Upper Rangemore (measuring
8,1191 hectares) within 30 days from the date of the order. In the
event that 1st
Respondent failed to effect the transfer within the stated 30 day
period, the 3rd
Respondent was empowered to sign all relevant documents to enable
transfer to be effected.
The
1st
Respondent was not satisfied with the judgment and applied for its
rescission on the 3rd
of May 2013.
Applicant
filed an Opposing Affidavit on the 9th
of May 2013. The 1st
Respondent did not take further steps to have the matter finalised
and after a period of two months Applicant took a decision to file a
Chamber Application For Dismissal For Want of Prosecution in terms of
Order 236(3)(b) of the High Court Rules.
The
1st
Respondent has filed a Notice of Opposition and Opposing Affidavit.
1st
Respondent accepts that in terms of Order 236(3)(b) of the High Court
Rules, steps ought to have been taken by the 1st Respondent to set
down the application for rescission of judgment within one month of
the notice of opposition and opposing affidavit being filed.
1st
Respondent's legal practitioner explains that it was his intention
to brief Counsel to attend to the matter, but did not have the time
to complete the brief due to pressing commitments. He took a decision
to seek the assistance of a professional assistance to handle the
matter. 1st
Respondent's legal practitioner states that he sent a text message
to his legal secretary in the following terms:
“In
the Guardforce matter just in case the other side apply to dismiss
the rescission application for want of prosecution ask Mr Collier to
brief Counsel to draw heads and file.”
It
would seem that the brief was not undertaken by 1st
Respondent's legal practitioner, Mr Collier,
who took leave on the 8th
July 2013.
1st
Respondent's explanation is that at all material times, its
intention was to set the matter down for hearing, but due to pressure
of work this was not done.
It
is apparent, however, that even after a lapse of 8 months, no
Answering Affidavit nor Heads of Argument had been filed.
The
primary issue for determination by this court is simply whether the
explanation given by the 1st
Respondent is candid and satisfactory.
It
is clear that there was negligence on the part of the 1st
Respondent in prosecuting its case.
In
the case of Beitbridge
RDC v Russel Construction
1998
(2) ZLR 190 (S), SANDURA JA stated that:
“Whilst
it is true that the fault was largely that of the former and present
legal practitioners who failed to act and to take appropriate action
to protect the appellant's interests, that fact, in my view, does
not assist the appellant. This court has on a number of occasions,
clearly stated that non-compliance with or a wilful disdain of the
rules of the court by a party's legal practitioner should be
treated as non-compliance or a wilful disdain by the party himself.”
See
also S
v Mcnab
1986 (2) ZLR 280 (S); and Masama
v Borehole Drilling
1993 (1) ZLR 11.
The
excuse proffered by 1st
Respondent's legal practitioner is that he was too busy and
delegated the matter to a junior legal practitioner by sending a text
message to his legal secretary.
This,
in my view is not a reasonable and satisfactory explanation.
I
take this approach for the reason that if legal practitioners were to
claim that because they were too busy and so they failed to act on
their matters the justice delivery system would be severely
compromised.
Legal
practitioners must always be aware that they operate within time
limits and in terms of laid down procedures. The purpose of such time
limits is for litigants to know when they are expected to act. Where
the legal practitioner fails to act, he has a duty to the court to
give a credible and convincing explanation why he failed to act
timeously.
It
is clear that 1st
Respondent's legal practitioner, in delegating an important matter
to a junior legal practitioner, was taking a casual approach to the
matter.
He
did not speak to the junior legal practitioner, but transmitted a
text message to a secretary, who was then expected to relay the
information to the junior lawyer.
It
is my firm view that time has come for legal practitioners to adhere
to the time limits set in the Rules. The approach ought to be that
the court may only excuse failure to act where the explanation given
is credible.
A
litigant who chooses a legal practitioner to act on their behalf
expects the legal practitioner to adhere to time limits set in the
rules.
In
the present matter the legal practitioner did not give due attention
to the case conscious of the risk he was exposing the 1st
Respondent to.
The
courts should decline to exercise judicial discretion where the
explanation proffered is not credible, even where the fault of the
legal practitioner will have adverse consequences on a litigant.
In
the case of Ndebele
v Ncube
1992 (1) ZLR 288, McNALLY, JA, stated at page 290 that:
“The
time has come to remind the legal profession of the old adage,
vigilantibus
nondormlentibus jura subveniunt,
roughly
translated, the law will help the vigilant on not the slaggerd.”
In
casu,
inspite of the lengthy explanation by the 1st
Respondent's legal counsel, I am not persuaded that a reasonable
and credible explanation has been tendered to tilt the balance in
favour of the 1st
Respondent.
I
would, accordingly, grant the Application for Dismissal of 1st
Respondent's claims for want of prosecution.
1st
Respondent is to bear the costs of suit.
Messrs
Dube-Tachiona and Tsvangirai,
applicant's legal practitioners
Messrs
Webb Low and Barry, respondent's
legal practitioners
