This is a Chamber Application in
terms of Rule 236(3)(b) of the High Court Rules, 1971.
On the 20th March 2013, the
applicant obtained default judgment against the first 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 the first respondent failed to effect
the transfer within the stated 30 day period, the third respondent was
empowered to sign all relevant documents to enable transfer to be
effected.
The first respondent was not
satisfied with the judgment and applied for its rescission on the 3rd
of May 2013.
The applicant filed an opposing affidavit
on the 9th of May 2013. The first respondent did not take
further steps to have the matter finalised, and after a period of two months
the 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 first respondent has filed a notice
of opposition and opposing affidavit.
The first respondent accepts that in
terms of Order 236(3)(b) of the High Court Rules, steps ought to have been
taken by the first respondent to set down the application for rescission of
judgment within one month of the notice of opposition and opposing affidavit
being filed. The first 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 assistant to handle the matter. The
first 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 the first respondent's legal practitioner, Mr Collier, who took leave on the 8th
July 2013. The first 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 first respondent
is candid and satisfactory.
It is clear that there was
negligence on the part of the first 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 the first 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 the first 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…..,.
In casu, in spite of the lengthy explanation by the first 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 first respondent.
I would, accordingly, grant the application for dismissal
of the first respondent's claims for want of prosecution. The first respondent
is to bear the costs of suit.
