Counsel for the respondents argued, firstly, that the
application was not filed in accordance with Rule 241 of the High Court Rules.
He submitted that on that basis, alone, the application
should be dismissed as there is no application for condonation for the failure
to comply with the Rules….,.
1. Non-compliance with
Rule 241(1) of High Court Rules
It was submitted that the applicant's chamber application
does not comply with Rule 241(1) of the High Court Rules.
In terms of this Rule, the applicant must set out the facts
upon which the application is based in Form 29B. The applicant did not attach Form
29B to the application and did not apply for condonation for his failure to
comply with the Rules.
The applicant's legal practitioner conceded, in argument
that he had not complied with Rule 241(1). He however argued that this did not
invalidate the application and asked the court to condone the non-compliance
with the Rules.
Counsel for the respondents relied on the case of Zimbabwe
Open University v Madzombe 2009 (1) ZLR 101 where this court held that failure
to comply with the provisions of Rule 230 of the High Court Rules, 1972 means
that the application was fatally defective. In that case, the matter was struck
off the roll as the court held that there was a failure to comply with the Rules
and the failure to make an application for condonation showed a cavalier
approach to compliance with the Rules which should be discouraged.
I agree entirely with the submissions made.
This court has stated in a number of judgments of this
court that parties are obliged to comply with the Rules. Where there is a
non-compliance, the applicant must apply for condonation and give reasons for
such failure to comply with the Rules. See also Jensen v Avacalos 1993 (1) ZLR
216 (SC).
In this case, the applicant's legal practitioner made no
effort to comply with this Rule despite the fact that the point was raised in
the respondents opposing affidavit. The request to the court to condone the
non-compliance was made cursorily at the hearing as if the grant of such
condonation is always there for the asking. It seems to me that legal
practitioners must be reminded that there is an obligation to comply with the Rules
of this Court.
An examination of Rule 241 shows that the wording of the
provision is obligatory. It states as follows:
“ (1) A chamber application shall be made by means of an
entry in the Chamber Book and shall be accompanied by Form 29B duly completed
and except as is provided in subrule (2), shall be supported by one or more
affidavits setting out the facts upon which the applicant relies:
Provided that, where a chamber application is to be served
on an interested party, it shall be in Form No.29 with appropriate
modifications…,.”…,.
Clearly, where a party fails to comply with the Rules there
must be a plausible reason why there has been a failure to comply.
In this case, the attitude of the applicant was that such
non-compliance must be granted by the court even though no explanation has been
proffered for such failure. The applicants counsel merely submitted that the
defect was not material enough to vitiate the application.
In my view this is not sufficient and on this
basis alone I would dismiss the application.
