Ex tempore, I granted the order sought by the applicant. It
was for the dismissal of the respondent's application in HC1525/14 for want of
prosecution.
As I granted the order, I berated the respondent's counsel
for mounting and persisting with a patently spurious opposition. I lamented the
fact that the applicant had not asked for costs of suit on the higher scale and
de bonis propriis. I would have readily granted them.
Here is what drew my ire.
The case had been a simple application for dismissal for
want of prosecution in terms of Order 32 Rule 236(4)(b) of the Rules of this
court. That Rule reads:
“236 Set down of
applications
(1)…,.
(2)…,.
(3)…,.
(4) Where the applicant has filed an answering affidavit in
response to the respondent's opposing affidavit but has not, within one month
thereafter, set the matter down for hearing, the respondent, on notice to the
applicant, may either –
(a) Set the matter down for hearing in terms of Rule 223;
or
(b) Make a chamber application to dismiss the matter for
want of prosecution, and the judge may order the matter to be dismissed with
costs or make such order on such terms as he thinks fit.”
The facts were straightforward.
Following a judgment of this court in favour of the
applicant, the respondent's immovable property had been sold in execution. The
Sheriff had confirmed the sale. In proceedings under HC1552/14, the respondent
had applied to this court to set aside the decision of the Sheriff confirming
the sale. The applicant had filed a notice of opposition. The respondent had
then filed an answering affidavit. Thereafter, the respondent had done nothing
further. For eight months the matter had lain dormant. Among other things, the
respondent continued to occupy and utilise the property. The property had been
turned into commercial lodges, offering accommodation to the public.
It was then that the applicant had applied for dismissal
for want of prosecution.
The opposition was spurious. The essential facts were
admitted. The major ground of opposition, both in the notice of opposition and
through submissions by counsel, was that the application to set aside the
Sheriff's decision to confirm the sale had very strong prospects of success.
That submission was hinged on the allegation that the advertisement of the
property in the media had been so misleading that it had only attracted two
bidders, one of them the applicant itself. As a result, the argument went on,
the property had been sold for an unreasonably low price.
The other argument by the respondent was that the applicant
could have itself applied to set down the main matter instead of mounting the
dismissal application. I was implored to use my discretion and allow the main
application to be argued on the merits. I was also implored to invoke the
provisions of Order 1 Rule 4C and condone the respondent's failure to set down
the main matter within the prescribed period.
Counsel for the respondent repeatedly brushed aside all my
repeated attempts to pin him down to explaining why the respondent had slept,
and was still sleeping, on its main application. He said he had conceded that
point and was therefore not going to waste the court's time making submissions
on it!
When I asked him on what facts I would then have to
predicate my exercise of discretion, or to invoke Rule 4C, counsel for the
respondent went back to his argument on the prospects of success in the main
matter. He exhorted me, allegedly in the interests of justice, to allow the
main case to be argued. When I asked him what had prevented the applicant, even
at that late hour, from setting down the main matter, especially after it had
received the dismissal application, counsel for the respondent submitted that
the respondent had decided to await the outcome of this case!
It was like a merry-go-round; a dog chasing its own tail.
The respondent's submissions were nothing but pious
exhortations for me to dismiss the dismissal application. It had classically
been sluggard. As McNALLY JA said in Ndebele v Ncube 1992 (1) ZLR 288 (SC)…,:
“The time has come to remind the legal profession of the
old adage; vigilantibus non dormientibus jura subveniunt – roughly translated,
the law helps the vigilant but not the sluggard.”
See also Masama v Borehole Drilling (Private) Limited 1993
(1) ZLR 288 (SC); Mubvimbi v Maringa & Anor 1993 (2) ZLR 24 (HC);
Maravanyika v Hove 1997 (2) ZLR 88 (HC); Beitbridge Rural District Council v
Russel Construction Co. (Private) Limited 1998 (2) ZLR 190 (SC) and Kodzwa v
Secretary for Health & Anor 1999 (1) ZLR 313 (SC);
In the absence of any explanation why the one month rule
prescribed in Rule 236(4) was not followed, there was nothing on which to
exercise my discretion.
The eight months delay, and the further delays that would
inevitably ensue if I did not dismiss the main application, were highly
profitable to the respondent. It was in occupation of the property. It was
paying nothing by way of rent or consideration. Yet, in reality the property
now belonged to the applicant, the successful bidder at the auction. The
respondent's argument about the advert in the press, being so truncated as to
be misleading, was spurious. I considered that advert. It had touched on the
essential features of the property. It had adequately been informative. At any
rate, good prospects of success tucked in a drawer somewhere are no good to the
respondent. They ought to have been brought to court and ventilated there.
It was for the above reasons that I granted the
application.
