Chamber
Application
MATANDA-MOYO
J:
This
is a chamber application for dismissal of an application for stay of
execution for want of prosecution in terms of s236(3)(b) of the High
Court Rules, 1971.
The
first respondent filed an application for stay of execution pending
the determination of an application for rescission. On 18 November
2016 - case No. HC 11759/16 refers. The applicant filed a notice of
opposition on 1 December 2016. Such notice of opposition was served
upon the first respondent the same day.
On
25 January 2017 the applicant filed this application.
After
receiving the application for dismissal, the first respondent
immediately filed answering affidavits and heads of argument Case
HC11759/16. That main matter was set down for hearing.
It
was at such hearing that the court was advised of the existence of
this present application. The parties agreed that this current
application be referred to me for determination before dealing with
the application for stay of execution.
Rule
236(3) provides;
“Where
the respondent has filed a notice of opposition and an opposing
affidavit and, within one month thereafter, the applicant has neither
filed and 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 r223; 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 such terms as he thinks fit.
(c)……”
From
a reading of the above it is clear that a judge has a wide discretion
in a matter for want of prosecution in deciding whether to dismiss or
not. The remedy is not available on asking.
Obviously
this rule is designed to ensure that there is finality to litigation.
This
rule serves to ensure that once a litigant has instituted proceedings
by way of application, matters are swiftly disposed. The rule is
meant to ensure that litigants are serious in the disposal of their
application brought before the court. Matters must not be left
stagnant before the court.
A
respondent to the application has a choice to either set the matter
down for hearing or to apply for its dismissal. The respondent herein
opted for dismissal.
As
reiterated above whether to grant the application or not is in the
discretion of the court after scrutinising factors such as;
(i)
the lengthy of delay in fling answering affidavit and setting the
matter down;
(ii)
the explanation thereof; and
(iii)
prospects of the respondent's success in the main matter.
It
is common cause that the first respondent was served with the
applicant's papers on 1 December 2016. In terms of r236(3) the
first respondent was supposed to file his answering affidavit a month
later, that is by the third of January 2017. He did not.
This
application was filed some three weeks after the deadline.
The
first respondent's response to the application was that he had
already filed his answering affidavit as well as heads of argument at
the time of this application.
I
have perused the file dealing with the application for stay of
execution – HC11759/16 and found that answering affidavit was filed
on 31 January 2017 after the application for dismissal had been filed
on 25 January 2017. According to the stamp on the application the
respondent's legal practitioners received same on 25 January 2017.
It
is therefore not correct that answering affidavits were filed before
the respondents were aware of this present application.
However
once they received this application the first respondent immediately
filed his answering affidavit and head of argument. Same matter had
been set down for hearing before this application was set down.
In
the main matter the first respondent's complaint is that he was not
a party to the proceedings which culminated in the attachment of his
immovable property.
It
is his submission that when the matter initially came before the
court in 2011 that is under HC Case NO. 6750/11 the parties before
the court then were Maxwell Matsvimbo Sibanda and NZ Industrial and
Mining Supplies. Under para 2 of the declaration the plaintiff
therein wrote;
“2.
The defendant is a company duly incorporated in terms of the laws of
the Republic whose given address for service is at No.48 Dam Judson
Road Milton Park, Belvedere Harare.”
The
default order, the first respondent claimed, suddenly introduced him
as a defendant. He has challenged that order under r449. He believes
the court made an error by suddenly adding him as a defendant
therein.
The
applicant argued that there have been several applications wherein
the first respondent was party to. He never raised the issues he is
raising now. Instead the first respondent even used his customary
wife to try and stop the sale of the house. The matter went as far as
the Constitutional Court - CCZ31/15 refers wherein the Constitutional
Court's view was that the property must be sold.
The
applicant's view is that the first respondent is abusing the courts
in a bid to save his property from execution. It is the applicant's
case that from the time he got judgment up till now, he is being
forced to defend spurious litigation. To date he has expended over
$30,000-00 in legal fees. The property in question is likely to sell
for $90,000-00 and most of the proceeds may be wasted on legal fees.
The
applicant called upon this court to stop this abuse by granting this
application and thus refusing to hear further application from the
first respondent.
Unfortunately
the court has so far not been able to locate the file culminating
into the order by default.
The
court has had sight of the summons which only bears the company name
as the respondent. The court has also had sight of the default
judgment where the first respondent was now a party to the matter.
The
court could not ascertain how the first respondent's name came to
appear on that order.
Whether
there was an application for joinder or not, the court is only left
to guess.
In
view of the above matter it may be an in justice for the court at
this stage to refuse to hear the first respondent on the matter.
It
is only for the above reason that the court reluctantly dismissed the
application for dismissal for want of prosecution. It is in the
interest of justice that the above issue be interrogated.
It
is my view though that, that issue is capable of resolution by
hearing the application in terms of r449.
I
am aware of other application pending before this court. Hearing
those applications may only increase legal costs. Such increase in
legal costs can benefit neither of the litigants, moreso the
applicant who continues to suffer costs in defending these numerous
litigations.
In
the result, it is ordered as follows;
1.
The application for dismissed of HC Case No. 11759/16 for want of
prosecution be and is hereby dismissed.
2.
Costs to be in the cause.
Coghlan,
Welsh, Guest,
applicant's legal practitioners
Chinawa
Law Chambers,
respondent's legal practitioners
