Under HC 1995/08, the respondents were the applicants.
This is an application for dismissal for want of prosecution of the respondents' application under case HC1995/08, and the discharge of the provisional order granted therein in terms of Order 32 Rule 236(4)(b) of the High Court Rules, 1971.
The salient facts are that under case HC1995/08, the respondents', under a certificate of urgency, instituted proceedings. They were granted a provisional order.
Those papers were served on the applicant's legal practitioners on 13 October 2008. The applicant filed opposing papers on 27 October 2008, and served them on the respondents' the same day. About three months after the applicant filed and served opposing papers, the respondents' filed an answering affidavit.
Thereafter, they neither filed heads of argument nor set the matter down for hearing, resulting in the current application premised on the respondents' want of prosecution of their application under HC1995/08.
The reason given for this is captured in paragraph 7 of the respondents' opposing affidavit, deposed to by their legal practitioner, in the following terms -
“7. It is further submitted that the delay in filing the said heads of argument is not deliberate, while we appreciate the fact that the respondents' are still within time. The 1st respondent, who is the main respondent in this matter, is ordinarily resident and working from Harare. He is usually travelling as well in the course of his employment demands. It is a challenge to easily reach him and take further instructions from him.”
This explanation is indicative of delaying tactics, as alluded to by the applicant.
The respondents' have filed an answering affidavit. It is therefore difficult to understand what other instructions are required for the legal practitioner to prepare the heads of argument.
It took the respondents' about three months to file an answering affidavit. Then a month has gone without heads of argument. The respondents' are enjoying the fruits of a provisional order, and are avoiding setting the matter for hearing on the substantive issue. This paragraph 7..., was deposed to by the respondents' legal practitioner in January 2009, and in September 2009, they had not yet filed the requisite heads of argument, or set the matter down for hearing.
As correctly pointed out by CHINHENGO J in Scotfin Ltd v Mtetwa 2001 (1) ZLR 249 (H), the object of Rule 236..., is designed to ensure that the court may dismiss an application if the principal litigant does not prosecute its case with due expedition. The court may, instead of dismissing the application, make such an order as it thinks appropriate. An order of dismissal would, in effect, be a default judgment. But an order other than dismissal may only be made if the principal litigant opposes the application for dismissal, and shows good cause why the original application should not be dismissed.
There is no such good cause shown by the respondents'.
The reason in paragraph 7..., is not a serious explanation for the failure to comply with the provisions of Rule 236.
Accordingly, I dismiss the application under case HC1995/08 and the provisional order granted thereunder be and is hereby discharged with both respondents' paying the costs of this application jointly and severally, the one paying in full, the other to be absolved.
