MAKONESE J: This
is a Chamber application for dismissal of respondent's application
in case number HC2718/13. The application has been initiated in terms
of Order 32 Rule 236(3)(b) on the grounds that respondent has failed
to file an answering affidavit or heads of argument within the time
stipulated by the Rules.
The
parties appeared before me on 2 March 2015. The respondent was in
default. His wife attended the proceedings and indicated that her
husband was not well and in hospital. I pointed out that the
respondent had on numerous occasions failed to attend court and
deliberately sent his wife to court, causing delays in the
finalization of this matter.
The
respondent's wife who appeared to be well acquainted with the
details of the matter put up an argument in response to the
application before the court.
I
granted the application prayed for and indicated that my reasons
would follow. These are my reasons.
Background
The
dispute in this matter revolves around the right, title and interest
in a property known as Stand 5671 Mkhosana Township, Victoria Falls.
Applicant and respondent both claim that they own the right, title
and interest in the same property.
On
10 September 2010, respondent filed a court application under case
number HC1805/10 claiming, inter
alia the transfer of
right, title and interest over Stand 5671 Mkhosana Township, Victoria
Falls into his names. That court application was improperly served
and the applicant did not become aware of its contents until a later
date. Meanwhile, respondent's legal practitioners had set the
matter down on the unopposed roll and obtained a default judgment
against the applicant. Subsequently, and upon becoming aware of the
application and the order obtained in default, applicant filed an
application for rescission of judgment under case number HC480/11.
That application for rescission of judgment was opposed by the
respondent, who failed or neglected to file his heads of argument
timeously. Pursuant to an order of this court, the matter was set
down on the unopposed roll and an order for rescission of judgment
was granted in default.
The
default judgment granted to the respondent under case number
HC1805/10 having been rescinded, the applicant was required to file
fresh opposing papers in case number HC1805/10 within five days of
the granting of the order. The applicant complied and filed such
papers on 16 October 2012. Following the service of the applicant's
opposing papers upon him, the respondent failed to file an answering
affidavit and failed to set the matter down despite being called upon
to do so. Consequently, applicant made an application in terms of
Order 32 Rule 236(3)(b); to have the applicant's application in
case number 1805/10 dismissed with costs.
The
respondent failed to oppose that application and on 21 February 2013,
this court granted an order dismissing the claim.
The
respondent then made another application for rescission of the order
dismissing his application under case number HC2817/13. Once again
the respondent failed to file an answering affidavit or set the
matter down for hearing. This has led the applicant to launch this
application for dismissal for want of prosecution.
Order
32 Rule 236(3) as amended by Statutory Instrument 80 of 2000 provides
as follows:
“(3)
where the respondent has filed a notice of opposition and an opposing
affidavit and, within one month thereafter, the applicant has neither
filed an answering affidavit nor 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 233; 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 other order on terms as he thinks fit.”
The
applicant has elected to make this application for dismissal for want
of prosecution.
These
courts have adopted a very strict approach in matters where an
applicant has failed to file his answering affidavit or set the
matter down for hearing. The court usually looks at the reasons for
failing to act timeously. Where failure to act is the result of an
utter disregard of the Rules of the court and prescribed time limits,
the courts are extremely reluctant to give any further indulgence to
the defaulting party.
See
the case of Moon v
Moon HB94/05.
In
the case of Ndlovu v
Chigaazira
HB104/05, the learned judge indicated that the reason why Rule 236
had to be enforced is to ensure that finality is brought to legal
proceedings.
The
circumstances of this matter clearly show that the respondent has a
tendency to institute actions without pursuing them to their
conclusion. The respondent has failed to file the necessary documents
on three separate occasions. The respondent's conduct is merely
dilatory and he is well aware that delaying the matter may be in his
best interests. He has no intention of prosecuting his actions to
completion.
I
note that in his opposing papers the respondent has not tendered any
reasonable explanation as to why he delayed in the filing of his
answering affidavit or why he has failed to set the matter down for
hearing.
The
respondent's opposing papers do not assist him in anyway.
Respondent
cannot raise a defence that he is a self-actor and therefore ignorant
of the provisions of the Rules. The respondent elected to act as a
self-actor in this matter. If a person elects to act as a self-actor,
then he is bound by any procedural errors he may make in the
prosecution of his claims.
In
any event respondent was legally represented in case number HC2718/13
up to 21 January 2014 when his legal practitioners renounced urgency.
At
the time the respondent failed to file his answering affidavit or
heads of argument he was still legally represented. Respondent's
legal practitioners ought to have complied with the Rules.
Given
the history of the matter, the only reasonable inference is that
respondent knowingly and deliberately refrained from setting the
matter down or file an answering affidavit. By his own conduct, the
respondent acquiesced to the dismissal of his application under case
number HC2718/13.
There
is need to bring matters to finality.
The
Rules are designed to facilitate the resolution of disputes
timeously. The respondent's past conduct reflects that he has no
intention of having a final resolution to the matter, presumably
because he has physical possession of the property in dispute. The
applicant has in my view established that the justice of the case
demands that the application for dismissal for want of prosecution be
granted.
On
the issue of costs, the court is generally reluctant to awards costs
on an attorney and client scale against a self-actor. In exceptional
circumstances, however, where there is a clear abuse of court process
the court is inclined, in such event, to order costs against a
self-actor on a punitive scale. The awarding of costs is at the
disrection of the court.
I
would accordingly order as follows:
1.
The Court Application For Rescission of Judgment under case number
HC2718/13 be and is hereby dismissed.
2.
The respondent shall bear the costs of this application on an
attorney and client scale.
Webb, Low and Barry,
applicant's legal practitioners
