Final Orders re: Principle of Finality to Litigation iro Dismissal of a Matter For Want of Prosecution

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO
Ruled By: NDOU J

On the 25th January 2006, the applicants made the present court application under case number HC153/06 for the re-instatement of case number HC933/05. On the 3rd February 2006, the second respondent filed a notice of opposition and on the 14th of February 2006, the applicants filed their answering affidavit. Under case number HC933/05, the applicants ...

HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

Mr. Masunda filed an application on 14 November 2008 seeking the rescission of the default judgment entered by MAKARAU JP. Mr.Nkomo filed a notice of opposition on 28 November 2008 and served a copy on Mr.Masunda's legal practitioners. By the 5th January 2009, more than a month later, Mr.Masunda has neither filed an answering affidavit ...

HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal. These are the reasons:- The respondent was appointed executor of the estate of the late Phineas Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende. This application was for condonation of late filing of an application ...

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal.

These are the reasons:-

The respondent was appointed executor of the estate of the late Phineas Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende.

This application was for condonation of late filing of an application for rescission of a default judgment granted by this court on 23 August 2010.

The bare bones of the matter are that prior to his demise, the late Lovemore Ngwende had instituted a court application, under case number HC1308/10, challenging the validity of the second Will said to have been executed by his late father, Phineas Ngwende. Apparently, a default judgment was granted against Lovemore Ngwende in that case after which he lodged an application for its rescission which he failed to prosecute timeously, prompting the respondent to make a chamber application, under case number HC5285/10, to have the application dismissed for want of prosecution.

On 23 August 2010, MUSAKWA J granted the chamber application by way of this order:

“Court application for Rescission of Default Judgment (sic) Case No. HC1308/10 be and is hereby dismissed for want of prosecution. First respondent pays costs of suit.”

In the present application, filed on 14 April 2011, the applicant was seeking condonation for late noting of an application for the rescission of MUSAKWA J's order of 23 August, 2010....,.

Order 32 Rule 236(3)(b) provides that 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 may, on notice to the applicant, make a chamber application to dismiss the matter for want of prosecution.

This is exactly what the respondent did and I have no reason to doubt that my brother MUSAKWA J, in granting the chamber application, was satisfied, on the papers before him, that the requirements of the relevant Rule had been complied with.

It is not sufficient for the applicant in casu to merely baldly allege that he was not served with the notice for the chamber application or that the matter had been set down for hearing. If that was so then the proper procedure was for the applicant to invoke Rule 449(1)(a) for it would have been clear that the order was granted in error.

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...

The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in Mutare District of Manicaland Province.”

The farm is approximately 472.46 hectares in extent. He has an offer letter dated 25 September 2007 in respect thereof.

The second respondent is said to be the first respondent's Farm Manager.

On the third of July 2008 the applicant obtained a provisional court order against the respondents. The order was in the following terms:

“First respondent and all those claiming and/or acting through him be and are hereby ordered to refrain from:-

1.1. Using applicant's farming implements and equipment.

1.2. Reaping bananas from applicant's farm.

1.3. Barricading applicant's access road to the farm.

1.4 Barring applicant's directors and employees from entering the farm.”

The applicant has approached this court on a complaint that the respondents are in contempt of court in that they have not complied with that court order.

In paragraph 8 of his founding affidavit, Johannes Jacobus W Vorster, the applicant's Director, stated that despite the respondents' having been duly served with the provisional order and being aware of the contents of the said order they have continued to deny the applicant's directors and employees access to the farm.

Such access was denied even when they went in the company of the Deputy Sheriff and the police.

The respondents have, instead, continued to harvest the applicant's bananas. The respondents have continued to use the applicant's equipment and implements and material contrary to the provisional order.

Some of the occurrences in Johannes' affidavit are supported by affidavits from Brian Mwaonga and Liberty Dzarira both police officers based at Mutare Police Station.

The net effect of their affidavits was to confirm accompanying the Messenger of Court/ Deputy Sheriff to Mafoshoro Farm whereat a copy of the provisional order was served on one Tendai Mbereko. They also observed that despite the service and explanation of the terms of the order by the Messenger of Court/Deputy Sheriff the first respondent's employees did not stop harvesting and loading bananas onto trucks that they found there. They also confirmed that when Mr Mbereko was confronted, he categorically indicated that he would not stop unless so instructed by the first respondent.

The applicant therefore prays that, in these circumstances, the respondents be found to be in contempt of court and be sentenced to a term of six (6) months imprisonment.

The first respondent opposed the application, contending that he is not in contempt of the provisional order. He indicated that on the occasions the applicant said he was denied access he was not at the farm, and, as per the applicant's affidavit, it was his employees who are alleged to have denied him access and not himself. He contended that the conflict is on the applicant wanting to carry out operations.

On the question of bananas, the first respondent contended that as bananas are perishables they cannot be kept on the trees for long hence admitting harvesting the bananas.

He also argued that the applicant no longer owned the farm, and so, as the beneficiary of the farm, he was entitled to the bananas as this was no longer the applicant's farm but State land.

On the continued use of implements and equipment he conceded that his employees may have used them before he had advised them about the provisional order. In any case, he has received implements and inputs of his own from Government and so he is no longer using the applicant's implements.

The major issue for determination was whether the applicant was in contempt of the provisional order.

Civil contempt is basically the willful or mala fide failure to comply with an order of court. There are three basic requirements for contempt procedure that need to be proved, namely:-

1. That an order was granted by a competent court.

2. That the respondent was indeed served with the said order or that it was brought to his attention; and

3. That the respondent has either disobeyed it or has neglected to comply with it.

See Consolidated Fish Distributors (Pty) Ltd v Zive and Ors 1968 (2) SA 517…,.

In Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H)…, GILLESPIE J noted that;

“Before holding a person to have been in contempt of court, it is necessary to be satisfied both that the order was not complied with and that the non-compliance was willful on the part of the defaulting party.”

In Haddow v Haddow 1974 (1) RLR 5…, GOLDIN J had this to say:-

“In my respective view, whenever an applicant proves that the respondent has disobeyed an order of court which was brought to his notice, then both willfulness and mala fides will be inferred. The onus is then on the respondent to rebut the inference of mala fides or willfulness on a balance of probabilities. Thus, if a respondent proves that while he was in breach of the order his conduct was bona fide, he will not be held to have been in contempt of court because disobedience must not only be wilful but also mala fide.”

Wilfulness connotes a deliberate decision not to comply with the order. Mala fides connotes bad faith.

If it is proved that the first respondent, being aware of the terms of the provisional order, deliberately chose not to comply with them then he would be guilty.

It is common cause that the basis of the application is the provisional order granted by this court on the 3rd July 2008. That order stated, in clear terms, what the respondent was required to do and not to do.

From the papers filed of record, and the submissions by counsel, it is common cause that the order was served on the respondents. The order was served on the first respondent at his residence here in Harare and it was also served at the farm in question. The first respondent had the opportunity to comply with the order.

There is therefore no denying that the first two requirements were met.

The major issue is whether the first respondent complied with the terms of the provisional order.

The applicant, in its application, alleged that access to the farm has not been granted and the respondents have not stopped using the applicant's equipment and machinery. The respondents have continued to harvest bananas contrary to the terms of the order.

The first respondent contended that he complied with the order to the extent possible.

In seeking to defend himself, the first respondent points at the fact that, in his view, the provisional order is in violation of the constitutional law on land in that it recognizes the applicant's ownership on land acquired by the State.

The first respondent appears to confess and avoid the contempt. Thus, he says, in paragraph 7 of his opposing affidavit -

“7. As indicated above, the provisional order granted is in violation of constitutional law on land in that it recognizes applicant's ownership on land acquired by the State. The provisional order pre-supposes ownership of the farm by applicant which is not the case anyone (sic) by virtue of the compulsory acquisition that took place at the farm.”

And, in paragraph 10, that;

“10. I do respect the courts and the laws of this country and certainly abide by them. I am informed and advised that, for my defence to succeed in this application, I must proved (sic) not to be acting mala fide and I content I am not acting so but in fact it is the circumstances surrounding this matter and the conflicting positions between the law of the land and the provisional order granted that has resulted in the situation I now find myself in.”

Apparently, the situation the first respondent finds himself in is one of not complying with the provisional order in full.

(i) Firstly, in paragraph 11 of his opposing affidavit he confirms that bananas are being harvested when he says that;

“Bananas, by their nature, are perishables and cannot be kept on the trees for long. When they are ripe they have to be harvested. It is for this reason that they were harvested…,.”

(ii) Secondly, on the question of access, he also seemed to confess such has not been granted in paragraph 14 of his affidavit when he says that;

“The applicants cannot operate on a farm that is no longer theirs. The provisional order was cunningly drafted by applicant's legal practitioners. It orders me to grant applicant access to the farm but not for them to carry out operations on the farm. It is clear from para 8 of applicant's affidavit that his intention on coming to the farm is to 'operate', which was never part of the order that applicant sought and obtained from the court. In fact, if it had been made clear to the court, the court would not have granted the access as it is in clear violation of laws on land acquisition by the Government. In any event, the order does not order me to vacate or stop operations, hence, if applicant was to come and carry out operations it would obviously clash with the operations I am carrying out. This is why applicant is alleging I am acting in disregard of the court order.”

It would appear that because the first respondent believes the applicant wants to come and operate he won't let that happen.

Though at some stage he stated that access was granted, this seemed to have been done begrudgingly and clearly not in terms of the provisional order.

The general tenor of the first respondent's position seems to be of trying to justify his failure to abide by all the terms of the provisional order and not that he has fully complied.

He confirms this when, in paragraph 25, he states that;

“As indicated before, I am complying with the interim order in as far as I can. Where it is impossible to comply with (sic) order I am unable to do so.”…,.

The extent of compliance is premised on his contention that the applicant no longer owns the farm and the bananas being harvested are not on the applicant's farm. He could only be in contempt if the bananas were on the applicant's farm.

This, in my view, is an argument in futility.

There is no confusion regarding the farm and the bananas the provisional order related to. The first respondent is fully aware that the order related to Mafoshoro Farm and the banana plantation on this farm. The first respondent's attempt at justifying his continued harvest of bananas is clearly contrary to the order.

If, as the first respondent seems to be saying, he was not happy with the terms of the order, there are legal or lawful steps he should have taken rather than defy clear terms of a court order.

Our courts have made it abundantly clear that a party's dissatisfaction or disagreement with a court order is no defence to contempt proceedings.

In Whata v Whata 1994 (2) ZLR 277 (S)…, GUBBAY CJ quoted with approval what was held in S v Mushonga 1994 (1) ZLR 296 (S) that:

“Generally, a person may not refuse to obey an order of court merely because it has been wrongly made; for, to do so would be seriously detrimental to the standing and authority of the court…,.

The proper approach was for the person, first, to obey the supposed invalid order, and, thereafter, to seek redress, if any, by way of appeal or review.

It was not for him to determine for himself whether the order ought not to have been made. He should come to court for relief if advised that it was invalid. The exception being where the order was blatantly absurd in its command and would itself tend to weaken respect for the administration of justice. Only in that remote eventuality would disobedience not be regarded as contemptuous.”

The crime of contempt of court is committed intentionally and in relation to the administration of justice in the courts. This is so because as was held in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H);

“Although the primary purpose of contempt procedure is to compel compliance with the court's order; in such proceedings, the court will also have an interest in protecting and upholding the dignity and respect of the court and the legal process.”

In Moyo v Macheka SC55-05…, ZIYAMBI JA. quoted with approval the words of GOLDIN J in Haddow v Haddow 1974 (1) RLR 5 wherein he said that:

“The object of proceedings for contempt is to punish disobedience so as to enforce an order of court and in particular an order ad factum praestandum, that is to say, orders to do or abstain from doing a particular act. Failure to comply with such order may render the other party without a suitable or any remedy, and, at the same time, constitute disrespect for the court which granted the order.”

In casu, if the first respondent seriously believed that the provisional order conflicted with the law on land, and that it posed great difficulties for him, he had the option to anticipate the return date so that the matter is heard earlier.

If the respondent felt that the bananas needed to be harvested by him and not the applicant and that the provisional order is not practical to enforce and was in conflict with what he terms the laws of the land he had this option.

I did not hear any submission to the effect that, upon realizing the difficulties in complying with the order, the first respondent took any steps to have the matter heard earlier.

Instead, he contended that the applicant is delaying finalization of the main matter so as to use the provisional order indefinitely by his application.

In terms of the High Court Rules, the first respondent need not wait for the applicant to set the matter for hearing - he can take that initiative himself.

Rule 236 of the High Court Rules states that;

“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 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 other order on such terms as he thinks fit.”

Rule 236(4) goes on to state that:-

“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 other order on such terms as he thinks fit.”

Rule 247, on Provisional Orders, states, in subrule 2, that -

“(2) Rules 231 to 240 shall apply mutatis mutandis to the enrolment and hearing of a matter consequent upon the issue of a provisional order referred to in sub-rule (1).

Provided that where a legal practitioner has certified in writing that a matter is urgent, giving reasons for its urgency, the court or a judge may direct that the matter be set down for hearing at any time, and, additionally, or alternatively, may hear the matter at any time and place, and in such event the ordinary periods of notice to the Registrar and to any other party shall not apply to the matter.”

It is clear from the above Rules that the first respondent had adequate avenues to take to ensure that the provisional order was dealt with expeditiously, if, as he said, the applicant was delaying the finalization of the matter.

In fact, the Provisional Order is also instructive to the respondent on the this, on the front page last paragraph, where it is stated that;

“If you wish to have the provisional order changed or set aside sooner than the rules of court normally allow, and can show good cause for this, you should approach the applicant/applicant's legal practitioner to agree, in consultation with the Registrar, on a suitable hearing date. If this cannot be agreed or there is a great urgency, you make a Chamber application, on notice to the applicant, for directions from a judge as to when the matter can be argued.”

As already alluded to, he chose none of the avenues to have the provisional order dealt with expeditiously. He, instead, opted not to comply with those terms of the order he did not agree with.

I am of the view that the first respondent is in contempt of the provisional order.

He has deliberately not complied with the terms of the provisional order despite having been served with the order. His wilful disregard of the court order is certainly inexcusable. He has not shown that his breach of the order was bona fide.

HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.]
Ruled By: NDOU J

The first respondent purchased from the applicant a residential Stand in terms of a written Agreement of Sale. The said Agreement of Sale was drafted by agents appointed by the applicant. Following payment of the purchase price, in terms of the Agreement, the first respondent demanded that the property be transferred into his name. The applicant then purported ...

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

The applicant seeks an order in the following terms -“It is ordered that:1. The respondent's application in case number 1873/07 be and is hereby dismissed with costs for want of prosecution, and the provisional order be and is hereby discharged. 2. The applicant shall pay the costs of this application.3. The applicant be and is hereby given ...

The applicant seeks an order in the following terms -

“It is ordered that:

1. The respondent's application in case number 1873/07 be and is hereby dismissed with costs for want of prosecution, and the provisional order be and is hereby discharged.

2. The applicant shall pay the costs of this application.

3. The applicant be and is hereby given leave to execute the Bulawayo Magistrate's Court judgment given under case number 9901/04.”

The application was opposed by the respondent on 17 March 2008. The respondent filed an opposing affidavit dated 17 March 2008. On 24 July 2008, the applicant filed his answering affidavit. Thereafter, before the matter was set down for hearing, the parties tried to settle. These efforts were futile.

Unfortunately, before this hearing, the respondent passed on.

This has prompted counsel for the respondent to seek the removal of the matter from the roll pending the substitution of the late litigant. Counsel for the respondent also advised that the respondent's estate has since been registered.

Counsel for the applicant opposes this suggested route.

His stance is that the death of the respondent does not terminate these proceedings. He submits that, at the time of the demise of the respondent, what was left was for the respondent's legal practitioner to file heads of argument. Reliance was placed on Order 13 Rule 85A of the High Court Rules 1971 for the applicant's stance.

The respondent's death certificate was not produced, although there was an undertaking that it would be produced at this hearing.

In common law, if a party to proceedings dies, then, assuming that action, or application, is one which can be brought by, or instituted against, his estate, the proceedings, though not brought to an end, are stayed automatically until the appointment of an executor to the deceased party's estate, for no proceedings can continue when a party has ceased to exist – Standard Financial Nominees (Pty) Ltd v Lurie & Ors 1978 (3) SA 338 (W)...,.

This position has been altered in our jurisdiction by the enactment of Rule 85A of the High Court Rules 1971, which provides -

“No proceedings shall terminate solely as a result of the death, marriage, or other change of status of any person, unless the cause of proceedings is thereby extinguished.

(2) If, as a result of an event referred to in sub-rule (1), it is necessary or desirable to join, or substitute, a person as a party to any proceedings, any party to the proceedings may, by notice served on that person and all other parties, and filed with the registrar, join or substitute that person as a party to the proceedings, and thereupon, subject to sub-rule (4), the proceedings shall continue with the person so joined, or substituted, as the case may be, as if he had been a party from their commencement:

Provided that -

(i) Except with leave of the court, no such notice shall be given after the commencement of the opposed matter;

(ii) The copy of the notice filed on the person to be joined, or substituted, shall be accompanied by copies of all documents previously filed, or served, in the proceedings.

(3) Where a party to any proceedings dies, or ceases to be capable of acting as such, his executor, curator, trustee, or other legal representation, may, by notice filed with the registrar, and served on all other parties to the proceedings, state that he wishes to be substituted for that party, and thereupon, subject to sub-rule (4), he shall be deemed to have been so substituted in his capacity as curator, trustee, or legal representative, as the case may be.

(4) A judge may, on chamber application being made to him within fifteen days after the service of a notice in terms of sub-rule (2) and (3), set aside or vary any joinder, or substitution, of a party affected in terms of sub-rule (2) and (3), as the case may be.”

Counsel for the respondent should have applied for substitution in terms of Rule 85A(3) of the High Court Rules 1971.

This was not done.

Counsel for the respondent also submitted the respondent's head of argument on the merits.

It is common cause that the cause of the application has not been extinguished by the death of the respondent. At the time of this hearing, there was no notice filed by the executor in terms of sub-rule (3), so there is no need to stay the proceedings.

As both parties have submitted heads of argument on the merits, I find that there is no prejudice if this application is finalized.

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

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 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 1^st 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.

HH52-10 : ROUTETOUTE BV and PENINSULA PLANTATION and MATANUSKA and BRIGHTSIDE FARM (PRIVATE) LIMITED vs MINISTER OF LANDS and MINISTER OF FOREIGN AFFAIRS and AMBASSADOR E. CHIMONYO
Ruled By: OMERJEE J

The applicants seeks a declaratory order in this matter in the following terms..., - 1. That it be and is hereby declared that the stay of execution of Honourable Mr. Justice KARWI's provisional order under case number HC6541/09 obtained by the third respondent as the applicant under case number HC128/2010 (HH16-10) has lapsed for want of prosecution ...

The applicants seeks a declaratory order in this matter in the following terms..., -

1. That it be and is hereby declared that the stay of execution of Honourable Mr. Justice KARWI's provisional order under case number HC6541/09 obtained by the third respondent as the applicant under case number HC128/2010 (HH16-10) has lapsed for want of prosecution of an application for rescission of judgment within the time limits ordered and directed by Honourable Justice KARWI under case number HC128/2010 (HH16-10).

2. That it be and is hereby ordered that the applicants are authorized and empowered forthwith to attend to the execution and implementation of the interim relief as provided for under case number HC6541/09.

3. It be and is hereby ordered that any purported noting of an appeal against this order shall not have the effect of staying or suspending the execution of the interim relief granted under HC6541/09.

4. That the third respondent, in the event of opposition, pay the costs of this application.

The relief sought is opposed by the third respondent.

There was no appearance on behalf of the first, second, and fourth respondents respectively.

The first respondent filed a document stating that the first respondent will abide by the decision of the court.

The factual background relevant, and of essence, to the determination of this matter, and which is not in dispute, is as follows:

In proceedings in case number HC6541/09, the present applicants filed an urgent chamber application in which they sought, and were granted, a provisional order of spoliation against the present third respondent on 5 January 2010...,. The present third respondent then filed an urgent chamber application in proceedings filed under case number HC128/10 seeking a stay of the spoliation order granted by KARWI J. This court, having considered the application, issued a judgment and granted interim relief..., on 26 January 2010 as follows -

“INTERIM RELIEF

Pending the determination of this matter, the applicant is granted the following relief:

(a) The operation of, and execution of the default order handed down by KARWI J in case number HC6541/09 be and is hereby stayed.

(b) The applicant shall file his application for rescission of judgment granted in case number HC6541/09 within seven days of the granting of this order.”

It is clear from the interim order issued by MUSAKWA J that he granted the present third respondent a stay of execution. The third respondent was directed to file an application for rescission within a period of seven days of the date of the grant of the order – which was 26 January 2010.

The third respondent submitted that in proceedings under case number 128/10 he filed an application for rescission. The final order sought in those papers was one of rescission of the interim order granted in default by KARWI J.

A perusal of the papers filed under case number HC128/10 confirms this position.

The relief sought by the present applicants is misplaced given the presence of an application for rescission which is pending.

The complaint by the present applicants is understandable. It should not have taken more than fourteen days for the present respondent to have enrolled this matter on the opposed roll for hearing on notice to the present applicants.

That was not done.

Under the circumstances, the relief sought cannot be granted.

In order that this matter is finalised, it is proposed to grant the following directions -

1. The papers filed under case number HC128/10 shall stand as the application for rescission.

2. The present applicants shall, within seven days of the date of this order, file their opposing papers.

3. The parties shall file their heads of argument within the time limits as stipulated within the High Court Rules, and obtain a date of set down for the hearing of the application for rescission on the opposed roll.

4. Costs shall be costs in the cause.

HH165-10 : DAVID CHAPFIKA vs TAKADANA MAKINA and HEDON CHATAMBALALA and DEPUTY POLICE COMMISSIONER GENERAL MATANGA and ASSISTANT POLICE COMMISSIONER PFUMVUTI and THE MINISTER OF LANDS
Ruled By: BHUNU J

Having obtained the above provisional order on 19 November 2009 the first two respondents have, to date, done nothing in pursuit of the final order and it appears that they have no intention to set down the matter any time soon. Rule 236(3) provides that - “Where the respondent has filed a notice of opposition and ...

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

At the hearing of this opposed matter a point in limine was raised, namely that the matter had, by order of this court under case number HC1920/08, been dismissed for want of prosecution. The Order given by my brother OMERJEE J on 19 May 2008 reads – “IT IS ORDERED THAT: 1. Respondent be and is hereby ordered ...

HH59-11 : PATHFINDER INTERNATIONAL (PVT) LTD vs THE TRUSTEES OF ALEXANDER CLUB
Ruled By: BHUNU J

The respondent is the applicant's tenant. The parties are engaged in litigation under case number HC5940/2010 wherein the applicant has instituted eviction proceedings against the respondent.On 26 November 2010, the respondent filed a court application seeking to amend its plea filed on 4 November 2010 whereupon the applicant filed its notice of opposition on 9 December ...

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

Historically, the first respondent filed a court application against the applicant and Barclays Bank Manager on the 24th November 2008 under case no. HC2337/08. That application was served by the Deputy Sheriff personally upon the applicant on the 14th January 2008. She did not act timeously against the application in question, and, in fact, did ...

HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO
Ruled By: MATHONSI J

The supervening death of Rose Dziruni means that the application for dismissal for want of prosecution cannot be pursued.

HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI
Ruled By: MAKONI J

After the point in limine was argued, I postponed the matter to 7 March 2013 for continuation after my determination. On that date, the respondent did not attend court. An application for dismissal of the application was made and was granted. In the result I will make the following order. 1. The application is dismissed. 2. The applicant to ...

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.In November 2010, ...

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

(1) HC234/08This is an application for dismissal for want of prosecution.The salient facts are the following. The applicant, on 27 November 2007, instituted a court application against the respondents. On 12 December 2007, the respondents filed a notice of opposition accompanied by opposing papers. In terms of Order 32 Rule 236(3)(b) of the High Court ...

Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

This is a Chamber Application in terms of Rule 236(3)(b) of the High Court Rules, 1971. On the 20th March 2013, the applicant obtained default judgment against the first respondent ordering it to effect a reversal of transfer in respect of a property known as subdivision B of Lot B Upper Rangemore (measuring 8,1191 hectares) ...

This is a Chamber Application in terms of Rule 236(3)(b) of the High Court Rules, 1971.

On the 20^th March 2013, the applicant obtained default judgment against the first respondent ordering it to effect a reversal of transfer in respect of a property known as subdivision B of Lot B Upper Rangemore (measuring 8,1191 hectares) within 30 days from the date of the order. In the event that the first respondent failed to effect the transfer within the stated 30 day period, the third respondent was empowered to sign all relevant documents to enable transfer to be effected.

The first respondent was not satisfied with the judgment and applied for its rescission on the 3^rd of May 2013.

The applicant filed an opposing affidavit on the 9^th of May 2013. The first respondent did not take further steps to have the matter finalised, and after a period of two months the applicant took a decision to file a Chamber Application For Dismissal For want of Prosecution in terms of Order 236(3)(b) of the High Court Rules.

The first respondent has filed a notice of opposition and opposing affidavit.

The first respondent accepts that in terms of Order 236(3)(b) of the High Court Rules, steps ought to have been taken by the first respondent to set down the application for rescission of judgment within one month of the notice of opposition and opposing affidavit being filed. The first respondent's legal practitioner explains that it was his intention to brief counsel to attend to the matter but did not have the time to complete the brief due to pressing commitments. He took a decision to seek the assistance of a professional assistant to handle the matter. The first respondent's legal practitioner states that he sent a text message to his legal secretary in the following terms:

“In the Guardforce matter, just in case the other side apply to dismiss the rescission application for want of prosecution ask Mr Collier to brief Counsel to draw heads and file.”

It would seem that the brief was not undertaken by the first respondent's legal practitioner, Mr Collier, who took leave on the 8^th July 2013. The first respondent's explanation is that at all material times, its intention was to set the matter down for hearing, but due to pressure of work this was not done. It is apparent, however, that even after a lapse of 8 months, no Answering Affidavit nor Heads of Argument had been filed.

The primary issue for determination by this court is simply whether the explanation given by the first respondent is candid and satisfactory.

It is clear that there was negligence on the part of the first respondent in prosecuting its case. In the case of Beitbridge RDC v Russel Construction 1998 (2) ZLR 190 (S), SANDURA JA stated that:

“Whilst it is true that the fault was largely that of the former and present legal practitioners who failed to act and to take appropriate action to protect the appellant's interests, that fact, in my view, does not assist the appellant. This court has, on a number of occasions, clearly stated that non-compliance with or a wilful disdain of the rules of the court by a party's legal practitioner should be treated as non-compliance or a wilful disdain by the party himself.”

See also S v Mcnab 1986 (2) ZLR 280 (S); and Masama v Borehole Drilling 1993 (1) ZLR 11.

The excuse proffered by the first respondent's legal practitioner is that he was too busy and delegated the matter to a junior legal practitioner by sending a text message to his legal secretary. This, in my view, is not a reasonable and satisfactory explanation. I take this approach for the reason that if legal practitioners were to claim that because they were too busy and so they failed to act on their matters the justice delivery system would be severely compromised. Legal practitioners must always be aware that they operate within time limits and in terms of laid down procedures. The purpose of such time limits is for litigants to know when they are expected to act. Where the legal practitioner fails to act, he has a duty to the court to give a credible and convincing explanation why he failed to act timeously. It is clear that the first respondent's legal practitioner, in delegating an important matter to a junior legal practitioner, was taking a casual approach to the matter. He did not speak to the junior legal practitioner, but transmitted a text message to a secretary, who was then expected to relay the information to the junior lawyer…..,.

In casu, in spite of the lengthy explanation by the first respondent's legal counsel, I am not persuaded that a reasonable and credible explanation has been tendered to tilt the balance in favour of the first respondent.

I would, accordingly, grant the application for dismissal of the first respondent's claims for want of prosecution. The first respondent is to bear the costs of suit.

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD
Ruled By: KAMOCHA J

The applicants in this matter filed a chamber application in terms of Order 32 Rule 236(4)(b) of the High Court Rules which recites that: “Where the applicant has filed an answering affidavit in response to the respondent's opposing affidavit but has not, within a month thereafter, set the matter down for a hearing, the respondent, on ...

The applicants in this matter filed a chamber application in terms of Order 32 Rule 236(4)(b) of the High Court Rules which recites that:

“Where the applicant has filed an answering affidavit in response to the respondent's opposing affidavit but has not, within a month thereafter, set the matter down for a 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 other order on such terms as he thinks fit.”…,.

The applicants averred that T M Supermarkets (Pvt) Ltd, Lobengula Street, Bulawayo was granted an interim order by this court under case number HC202/13 on 24 January 2013 staying an order granted on 15 January 2013 in case number HC4108/12.

They filed their notice of opposition on 1 February 2013.

They alleged that the respondent had not taken any steps to have the matter heard and finalised since then. In their view, the respondent seemed to have no intention of taking any steps to finalise the matter which was now seven months old. The applicants further alleged that since the respondent's application had been based on the judgment of the Labour Court which had been set aside by this court it had become ipso facto baseless and without foundation and stands to be dismissed. They finally concluded that the latest judgment, which was granted in their favour, nullified all other judgments that went against them.

By letter dated 25 July 2013, the respondent's legal practitioners pointed out to the applicants that their interpretation of the judgment was erroneous and advised them that the setting aside of the Labour Court judgment did not change anything as the execution of the arbitral award had been stayed by an order of this court on 24 January 2013. The respondent vehemently submitted that the applicant's application was without any merit as there was no truth in the assertion that it had no intention of wanting to finalise the matter and had done nothing in that regard.

It then chronicled what it had done so far.

The applicants filed their notice of opposition under case number HC2021/13 on 1 February 2013. The respondent filed its answering affidavit on 12 February 2013. The applicants filed their heads of argument on 1 March 2013 while the respondent did so on 11 March 2013. The respondent went on to bind and paginate the record and applied for hearing dates by filing blank notices of set-down with the Registrar of this court on 12 April 2013. But no hearing date was allocated. Since no hearing date was allocated, the respondent proceeded to file fresh blank notices of set down again with the Registrar. The record had already been bound and paginated and all that was left was the allocation of trial dates by the Registrar in consultation with a Judge who was going to hear the matter. The respondent submitted that there was nothing it could have done thereafter as it was the Registrar only who had the responsibility to allocate trial dates to litigants. No litigant has the authority to do so.

The respondent submitted that the applicants had failed to appreciate and accept that the allocation of trial dates is a domain of the Registrar of this court. They further failed to appreciate that matters are set down on a first come first served basis. It was, accordingly, not true and correct for the applicants to allege that the respondent was doing nothing about the matter when it had, in fact, done all that was expected of it.

The respondent further submitted that it was also not true and correct to suggest that the application under case number HC202/13 was based on the judgment of the Labour Court which had been set aside.

The correct position was that the respondent filed its notice of opposition against the chamber application for the registration of the arbitral award on 11 December 2012. The respondent raised therein points in limine. However, when the court granted the order of 15 January 2013, which the applicants were seeking to enforce, it made no reference at all to the notice of opposition and the points in limine raised therein. It was clear that the court had not been appraised of the notice of opposition with its points in limine. The respondent argued that there was no way in which the court would have dealt with an opposed matter like an unopposed one if it had been aware of the opposing papers from the respondent. If it had been made aware it would have given reasons for rejecting the points in limine raised in the opposing papers. Having held a strong view that the court had not had sight of the opposing papers, the respondent applied for and was granted a provisional order for stay of execution.

This court finds that it was indeed not true and correct to suggest that the application for stay of execution was solely based on the Labour Court judgment which was set aside.

This court further holds that the assertion that judgment HB113-13 nullified all other judgments is without any foundation. The order clearly stipulated that;–

“The order granted by the Honourable S. M. Nare, President of the Labour Court on the 10^th January 2013 be and is hereby set aside.”

And nothing further.

The order is not ambiguous and means what it says. It would be improper to alter or add any contents to the court order. See Baron v George 1994 (2) ZLR 141 (SC)….,.

In the result, the application fails and is dismissed with costs on the ordinary scale.

View Appeal
SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

I now turn to deal with the appeal against the dismissal by the court a quo of the application for rescission of the default judgment for want of prosecution. The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides ...

I now turn to deal with the appeal against the dismissal by the court a quo of the application for rescission of the default judgment for want of prosecution.

The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides as follows:

“236. Set down of applications

(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 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 other order on such terms as he thinks fit.”

The discretion to dismiss a matter for want of prosecution is a judicial discretion to be exercised taking the following factors into consideration –

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.

Dealing with the delay and the explanation for the delay, there is no doubt that there was a delay in this matter. However, the delay and the explanation thereof in this matter, alone, cannot form the basis for the dismissal. The other factors should also have been considered in determining whether or not to dismiss the application for rescission for want of prosecution.

This is a serious misdirection.

The delay in this matter is flagrant in some respects. It is quite clear from the record that there was a lot of inaction by the appellant when action should have been taken. For instance, when the application for dismissal for want of prosecution of the application for rescission of the default judgment was filed, the appellant did not seek to have the application for rescission of the default judgment dealt with expeditiously.

There is no rule of law which barred the appellant from proceeding with its application for rescission of the default judgment despite the making of the application for dismissal for want of prosecution. In fact, under Rule 236 of the High Court Rules, when faced with an application for dismissal of an application, the High Court is enjoined to consider options other than dismissing the application for want of prosecution. The fact that the appellant sat around and did not attend to the setting down of the application for rescission of the default judgment is a factor that weighs heavily against the appellant. If anything, the chamber application ought to have triggered the appellant to attend to the finalisation of the application for rescission of the default judgment. The only way the appellant could have shown that it was serious about the application for rescission was to proceed to have the matter set down after it was served with the chamber application for dismissal for want of prosecution.

The appellant's non-compliance with the High Court Rules is twofold;

(i) First, the appellant failed to have the matter set down or file an answering affidavit within the prescribed time.

(ii) Second, after the chamber application for dismissal for want of prosecution was filed, the appellant still did not attend to the finalisation of the application for rescission of the default judgment.

In this regard, the court a quo commented as follows:

“The first respondent's explanation is that at all material times its intention was to set the matter down for hearing, but due to the pressure of work this was not done. It is apparent, however, that even after the lapse of eight months no answering affidavit or heads of argument had been filed.”

The appellant contends that the application for dismissal of the application for rescission of the default judgment stood dismissed as a result of the order of the High Court dismissing the application on 4 July 2013. However, what the record does not show is the exact date when this order was set aside by consent. The appellant has not placed before this Court any document showing the date of such setting aside and this omission leaves this Court in an invidious position. I simply cannot tell when this application was set aside. This date is pertinent in the calculation of the time between the filing of the opposing affidavit in the application for rescission matter and the time when the application for rescission was set down - if at all it was.

This works against the appellant.

The above position notwithstanding, the following factors are relevant to the final determination.

The appellant wrote to the respondent a number of times concerning the issue and even intimated that it was open to an out of court settlement. An abortive urgent chamber application was filed by the appellant and it appears that it was dismissed for want of urgency. Dismissal of this matter was an irregularity. The matter should simply have been struck off the roll. Dismissal of the matter suggests that the merits of the matter were considered when all that the court was required to determine was whether or not the matter should be heard on an urgent basis.

The vigorous opposition to the application for dismissal for want of prosecution also shows, to some extent, that the appellant really intended to proceed with the application for rescission of the default judgment.

The delay in finalising the application for rescission of the default judgment in the main matter is explained by the appellant's legal practitioner, Mr Norman James Pattison. Mr Pattison sent a message to his secretary and instructed her to convey the message to Mr Stephen Jonathan Collier, a junior legal practitioner in his firm. The message had specific instructions on the way forward regarding the application for rescission of the default judgment. The instruction was to prepare a brief to counsel for him to prepare heads of argument just in case the respondent intended to have the matter dismissed for want of prosecution. Mr Collier misunderstood the instruction, leading to the failure to comply with the instruction. Mr Collier thought that the message he received related to a different matter involving the same parties that Mr Pattison was handling. This explanation did not go down well with the learned judge in the court a quo, who commented as follows:

“The excuse proffered by the first respondent's legal practitioner is that he was too busy and delegated the matter to a junior legal practitioner by sending a text message to his legal secretary. This, in my view, is not a reasonable and satisfactory explanation. I take this approach for the reason that if the legal practitioners were to claim that they were too busy and so they failed to act on their matters the justice delivery system would be severely compromised.”

Two issues emanate from this finding.

(i) First, the judge took exception to the delegation to a junior legal practitioner.

It appears the court a quo assumed that the junior legal practitioner was less competent and that the senior partner, in so delegating to the junior legal practitioner, did not take the matter seriously.

In my view, this appears to be a misdirection for the following reason.

The junior legal practitioner is also a qualified legal practitioner capable of following instructions given to him. There is no evidence on record to show that the junior legal practitioner was less competent than would be expected. The issue here is one of misunderstanding the message sent to Mr Collier by Mr Pattison. The explanation that the junior legal practitioner misunderstood the instruction is not necessarily unreasonable. This error does not necessarily involve negligence. It is within the realms of human error.

(ii) Second, the court a quo took umbrage at the fact that communication between the legal practitioners took the form of text messages.

In this day and age I see nothing wrong in the use of text messages to facilitate communication between people. To take umbrage at the use of text messages, as the court a quo did, is a misdirection. The instruction sent to Mr Collier, through a message on Mr Pattison's secretary's cellphone, was received but regrettably misunderstood. Mr Pattison was himself not able to deal with the matter and so delegated it to another legal practitioner, a reasonable course to follow in the circumstances.

The court a quo's aversion to the use of the text message is apparent. This is what the learned judge had to say:

“Where the legal practitioner fails to act, he has a duty to the court to give a credible and convincing explanation why he failed to act timeously. It is clear that the first respondent's legal practitioner, in delegating an important matter to a junior legal practitioner, was taking a casual approach to the matter. He did not speak to the legal practitioner but transmitted a text message to a secretary, who was then expected to relay the information to the junior lawyer.”

Mr Pattison, for all intents and purposes, wanted the matter to be dealt with by counsel. This shows, if anything, that the matter was not being taken lightly. The learned judge considered this irrelevant in coming to the conclusion that there was no reasonable explanation for the non-compliance with the Rules of Court.

In my view, the judge erred in this respect.

What the appellant's senior legal practitioner did in this case does not amount to an unreasonable explanation for the failure to comply with the High Court Rules. In my view, the actions of Mr Pattison were reasonable enough in the light of the intended goal.

The court a quo, in dismissing the application, relied on the case of Beitbridge Rural District Council v Russell Construction Co (Pvt) Ltd 1998 (2) ZLR 190 (S), where it was held, in part, that:

“Whilst it is true that the fault was largely that of the appellant's former and present legal practitioners who failed to protect the appellant's interests; that fact, in my view, does not assist the appellant. This court has, on a number of occasions, clearly stated that non-compliance with or a wilful disdain of the rules of court by a party's legal practitioner should be treated as non-compliance or a wilful disdain by the party himself.”

This case quite clearly refers to a matter where there has been wilful disdain of the High Court Rules by the legal practitioners.

In the present case, the legal practitioner made arrangements for the matter to be finalised. The fact that the judge a quo preferred that the legal practitioner should have acted differently matters not. The fact that arrangements were made, though not properly carried out, shows that there was no wilful disdain of the Rules. One cannot prescribe how a legal practitioner should instruct his junior. As long as the manner of the communication gets the job done, that should be satisfactory. The junior legal practitioner in this case got the message. That is all that really matters in this case. The court a quo ought not to have taken an overly punctilious view of the manner in which the message was conveyed.

In the result, I come to the conclusion that although there was a delay in this matter, the explanation for the delay was reasonable.

I now turn to the issue of the prospects of success on the merits.

Counsel for the appellant submitted that the Agreement of Sale between the parties is valid. It does not fall foul of section 39(1)(b)(i) of the Regional Town and Country Planning Act [Chapter 29:12].

I am in agreement with this submission.

Given this situation, the appellant has almost an unassailable case on the merits.

It would be a gross injustice if a litigant with such good prospects of success on the merits is denied a day in court, in particular in a case where it has not been shown that there has been a wilful disdain of the High Court Rules.

Again, failure by the court a quo to consider the prospects of success on the merits is a misdirection justifying the setting aside of the judgment of the court a quo.

I now turn to deal with whether the respondent will suffer any prejudice.

The founding affidavit to the chamber application for dismissal of the application for rescission of the default judgment for want of prosecution does not in any way detail how the respondent would be prejudiced by the delay in this matter. In other words, the respondent failed to bring herself squarely within the confines of what has to be proved for an application under Rule 236(3) to succeed.

These are application proceedings. The evidence is as is on the papers. Even where there is a delay, the evidence will remain in the current form, unlike in actions where the testimonies of witnesses are pertinent. In those cases, delay would be more prejudicial than in application proceedings.

It would also be prejudicial to the respondent not to dismiss the application for rescission of judgment for want of prosecution where it is clear that the application sought to be dismissed is doomed to fail on the merits anyway. The prejudice would be in being made to take a long legal route when a shorter and cheaper one is available.

In casu, it is the appellant who has good prospects of success on the merits. Therefore, dismissing the respondent's application is not prejudicial to the respondent….,.

Finally, the judgment of the court reveals that the court a quo did not consider the issue of prospects of success on the merits. This is a serious misdirection which justifies the setting aside of the judgment of the court a quo and sets this Court at large….,.

Taking into account all the above, I would allow the appeal to succeed and make the following order;-

1. That the appeal be and is hereby allowed with costs.

2. That the order of the court a quo be set aside and in its stead the following is substituted -

“1. The application for dismissal of the application for rescission of the default judgment for want of prosecution be and is hereby dismissed;

2. The respondent be and is hereby permitted and directed to file its heads of argument in case no. HC1116/13, the application for rescission of judgment in the main matter, within ten days of the date of the handing down of this order.”

3. That this matter be heard by a judge other than the one who handled this matter before.

4. That costs be costs in the cause.

HH38-15 : NMB BANK LIMITED vs MAXORCARTER (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

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 ...

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.

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

The applicant applied for directions after the parties attended a pre-trial conference before me. On 25 November 2013 I granted the application in which the following order was made; “IT IS ORDERED THAT: 1. Respondent shall furnish all the further particulars, without exception, that were requested by applicant in the request for further particulars that was filed on her ...

The applicant applied for directions after the parties attended a pre-trial conference before me. On 25 November 2013 I granted the application in which the following order was made;

“IT IS ORDERED THAT:

1. Respondent shall furnish all the further particulars, without exception, that were requested by applicant in the request for further particulars that was filed on her behalf on the 8^th July 2013, and such further particulars shall be furnished within 7 days of the date of service of this Order on the respondent's legal practitioners by an employee of applicant's legal practitioners.

2. Applicant is hereby granted leave to amend her plea and prayer in accordance with the Notice of Amendment that was filed by her on the 1^st of August 2013.

3. The respondent shall file a supplementary discovery affidavit which refers both to all the documents listed in the schedule attached to applicant's notice to make further discovery which was filed on the 4^th October 2013 and to whatever other documents are discoverable by him but are not reflected in such schedule, and such supplementary discovery affidavit shall be furnished within 7 days of the date of service of this Order on his legal practitioners by an employee of the applicant's legal practitioners.

4. Respondent shall prepare three bundles of legible photocopies of all the above documents and shall furnish one such bundle to applicant's legal practitioners (against a tender of payment by them of the requisite charges allowed in terms of the High Court tariff) within 7 days of the date of attestation of a respondent's aforesaid supplementary discovery affidavit.

5. Respondents shall meet the cost of this application.”

On 9 December 2013 the above order was duly served on the respondent's legal practitioners.

It is important to point out that prior to the pre-trial conference before me, on 24 July 2013, the applicant had filed a request for further particulars. That request called on the respondent to provide information with regard to supposed improvements to the property, so as to enable the applicant to prepare for trial as stipulated by Order 21 Rule 143. This request was ignored. The respondent, however, filed a discovery affidavit on 16 September 2013 referring to two schedules but not attaching the schedules. When the omission was pointed out to the respondent, the respondent's legal practitioners, on 1 October 2013, filed their own schedule comprising a single schedule with two parts on a one page document.

The applicant's legal practitioners were not content with this schedule as it failed to refer to a considerable number of vital documents which, in their view, related to matters in question which are or have at any time been in the respondent's possession or control either directly or through an agent. Accordingly, counsel for the applicant filed a notice to make further discovery in terms of Order 24 Rule 164 of the Rules of Court. Again, there was no response within the requisite period. This led to the application for directions which application was granted on 25 November 2013.

After this, nothing was received from the respondent's legal practitioners in the form of further particulars, discovery, or offer of bundle of documents, letter, or telephone call.

The respondent contends that there was no order for directions duly served upon him or his legal practitioners. In the alternative, he contends that he has substantially complied with the order if such order is deemed to have been duly served upon him.

Dealing with the first contention that there was no order served upon the respondent, the contention is not substantiated with regard to whether there was no physical service or delivery of the order dated 25 November 2013 or whether the order is an incompetent one. The relevance of Rule 165(1) of Order 24, cited in the respondent's heads of argument, is obscure. That rule requires the respondent to comply with the order dated 25 November 2013. As for the substantial compliance ground, I hold the view that there is nothing of such a nature where a court issues a clear and unambiguous order as here. The courts have repeatedly stressed the importance of discovery affidavits.

In Ferreira v Endley 1966 (3) SA 618 (E) the court was dealing with a case where the defendant's attorneys did all that could be required of them in pressing for a discovery affidavit and when eventually one was served, it transpired that it was by no means a full disclosure. At 621 A-E EKSTEEN J said:

“The subsequent attempt formally to disclose the documents in letters to defendant's attorneys and to claim privilege in respect of other documents is still not a proper compliance with the Rules, and the defendant cannot be required to content himself with that.

They are entitled to have the statements testified to under oath. It is not only because such statements made by untruthful that this is a necessary, but also because parties are more careful to verify information given to their legal advisers if they know it has to be deposed to. (Wallis & Wallis v Corporation of London Assurance 1917 WLD 116 at p 121). Discovery affidavits are very important documents in any trial and the party requesting discovery is entitled, in terms of the Rules, to have a full and complete discovery on oath. (Maxwell and Another v Rosenberg and Others 1927 WLD 1 at p 8).

In the present case, not only has the discovery affidavit been filed at a very late stage, but when it was eventually served it was incomplete in the respects set out above. At no stage has the plaintiff sought to remedy these deficiencies by a supplementary discovery affidavit, as he might have done, and the defendant would consequently, to my mind, be entitled come to court to compel a further and better discovery. He cannot, however, be obliged to go to trial with plaintiff's discovery affidavit as it now stands amplified by letters written to plaintiff's attorney in regard to other documents not referred to in the affidavit.”

In the present case, the respondent has filed a discovery affidavit which clearly does not constitute full disclosure. This is in spite of the order of court directing him, in clear and unambiguous terms, the nature of the discovery he was required to make. The respondent seems to suggest, in his heads of argument, that the applicant could only have filed a notice to make further discovery upon my sanctioning of such a step. Clearly, that cannot be the case. Even assuming that the applicant needed an order of court for him to comply, then the respondent ought to have complied with the order of 25 November 2013. He did not comply with that order.

The whole object of discovery is to ensure that before trial both parties are made aware of all the documentary evidence that is available. A party is required to discover every document relating to the matters in question - and that means relevant to any aspect of the case. Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR); Supiya v Mutare Rural District Council & Ors 1985 (2) ZLR 53. Compliance with the order dated 25 November 2013 by the respondent would have achieved that objective.

The respondent's case against the applicant is based on claims that he effected certain improvements to the applicant's property. It was essential that the respondent discovers the documents listed in the order granted in favour of the applicant in order to enable the applicant, as well as the judge at the pre-trial conference stage, to learn more of the nature and cost of the alleged improvements that the respondent made to the property. That information, and whatever documentation may substantiate it, goes the heart of the respondent's claim.

Clearly, the respondent would have some documentary evidence of the cost of whatever renovations or improvements he effected to the property which the applicant was entitled to inspect at some point before trial. In my view, if these were made available, then, at the pre-trial conference stage, my hand in assisting the parties to find some basis of settlement or narrow down the issues, would have been strengthened. The failure by the respondent to comply with an order of the court is deliberate contumacy which cannot be tolerated. There are consequences to this type of behaviour. In my view, the applicant is entitled to seek a dismissal of the respondent's action against her on that basis alone. In the result it is ordered as follows:-

“1. The respondent's claims against the applicant in his action against her, in case number HC10286/12, be and is hereby dismissed with costs on the legal practitioner and client scale.

2. The respondent shall meet the costs of this application on the legal practitioner and client scale.”

Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 31 March 2015, in which the court a quo dismissed the appellants' application for rescission of judgment for want of prosecution.

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

This is an application for the dismissal of the respondents' application in case number HC2754/2014 for rescission of a default judgment granted in case number HC8991/2014.

HH199-15 : JOSEPH MANDIZHA vs CHEN WANG and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MANGOTA J

Pursuant to the judgement which MATHONSI J granted to the first respondent under case number HH516-14 (ref HC8415/13), the first respondent did, on 15 October 2014, issue an application out of this court. The application was filed under case number HC9133/14. He cited the applicant, the second, third and fourth respondents. The first respondent was served with ...

The first respondent was served with opposing papers at the end of October 2014. He did nothing from the mentioned period to the time that the applicant filed this application. The Rules required him to have filed an answering affidavit or to have set the matter, which related to the application, down for hearing. He should have pursued either of the stated matters within one month which is calculated from the date that the opposing papers were filed with the court…,.

The record shows that:

(a) The applicant filed his opposing papers to the applicant's application on 28 October 2014; and

(b) The second and third respondents' opposing papers to the same were filed with the court on 30 October 2014.

It is evident that the applicant should have complied with Order 32 Rule 236 in early December 2014 or so soon thereafter. He did not do anything at all. He, in fact, remained inactive for the whole of November and December 2014. He only reacted on 28 January 2015 when he filed his notice of opposition to the applicant's application for dismissal of application for want of prosecution.

The first respondent's opposing papers were not in the record when the court dealt with the application on 4 February 2015. The court cannot tell where they were. It, accordingly, granted the order by default. The order is dated 4 February 2015.

On 18 February 2015 the first respondent's legal practitioners addressed a letter to the Registrar of this court. The Registrar received it on the following day, and, with speed, placed it before the court for its attention.

The letter which the legal practitioners wrote read, in part, as follows:

“RE: APPLICATION HC271/15 BY JOSEPH MANDIZHA V CHEN WANG AND OTHERS

We refer to the above in which the Chamber Application by Mr Mandizha was granted by the Judge on the 4^th of February 2015. We understand from you that our Notice of Opposition to that application was not amongst the Judges papers and he therefore granted the order by default.

However, we attach our Notice of Opposition which was filed timeously with the Registrar on 28^th of January 2015 and was served on other respondents. In the circumstances we believe that the default order was erroneously granted and we request the learned judge to set aside the order in terms of Rule 449 of the High Court Rules.”

The first respondent attached to the letter his Notice of Opposition.

The Notice was filed with the Registrar on 28 January 2015. It was, therefore, filed before the default order was granted to the applicant. It is on the mentioned basis that the first respondent submitted that the order was granted in error, and should, therefore, be corrected in terms of Rule 449 of the rules of this court.

Rule 449 confers a discretion and power on the court to correct, rescind or vary any judgement or order that was erroneously sought or erroneously granted in the absence of any party affected by the judgement or order…,. It reads:

“CORRECTION, VARIATION AND RESCISSION OF JUDGEMENTS AND ORDERS

1. The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgement or order -

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.; or

(c)…,.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless it is satisfied that all parties whose interests may be affected have had notice of the order proposed.”…,.

There is no doubt that the order which the court granted to the applicant affected the first respondent's interests in an adverse manner. That order was, however, made with the full knowledge of the first respondent.

The Rule which the first respondent relied upon enjoined him to have filed an application with the court. He addressed a letter to the Registrar.

A letter and an application are two different pieces of paper altogether.

An application falls into the realms of court process and a letter does not fall into that category of papers. It cannot, therefore, be stated that the first respondent complied with the Rule when he wrote the letter as opposed to him having filed, on notice to other parties, an application with the court.

Subrule (2) of Rule 449 prohibits the court from making any order which corrects, rescinds or varies a judgement or order unless it is satisfied that all parties whose interests would be affected by its order have been notified of the proposed order.

The first respondent did not state, in the letter, that other parties who are part and parcel to his case were notified of what he prayed the court to grant him. Admittedly, copies of the letter which he addressed to the court were apparently forwarded to the parties. It is not known if they saw the letter - let alone took the trouble to read its contents. The mere fact that the first respondent showed, underneath the writer's signature, that copies were forwarded to the other parties is not enough. The first respondent should have done more than what he did in his effort to satisfy the court that adequate notice was served on the parties. Some form of stamp and signature of the served party, if such was attached to the letter, would have sufficed in the absence of certificates of service.

In his opposing papers, the first respondent admitted paragraphs A, B1, B2, B3 and B4 of the applicant's affidavit. He also admitted that he filed his answering affidavit out of time after which he proceeded to chronicle his reasons for the delay. He apologised for the late filing of his answering affidavit, and he, quite correctly, stated that he remained liable for the payment of the applicant's costs.

For some unknown and unexplained reasons, the first respondent did not file any answering affidavit. He, instead, filed his Heads of Argument under case number HC9133/14. He filed those on 14 February 2014. As at the time of this judgement, no answering affidavit of the first respondent was filed of record. The status quo ante, therefore, remained obtaining from the time that the applicant and others filed their opposing papers to date.

The court has considered all the merits and demerits of the matter which the first respondent placed before it through the letter. It is satisfied that the first respondent's case is devoid of any merit. The request which he made in the letter is not sustainable.

In the result, it is ordered that the order which the court granted to the applicant on 4 February 2015 under case number HC271/15 be and is hereby not corrected, rescinded, varied or set aside.

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

This is a Chamber application for dismissal of the 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 the 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. The applicant and the respondent both claim that they own the right, title, and interest in the same property.

On 10 September 2010, the 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, the 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, the 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, the 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.

The 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, the 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. The respondent's legal practitioners ought to have complied with the Rules.

Given the history of the matter, the only reasonable inference is that the 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 discretion 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.

HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O.
Ruled By: MUSAKWA J

In this application, the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.

The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant, trial has failed to commence despite appearing before the court on numerous occasions. This is because witnesses would not attend. The applicant avers that every time he was summoned to court he would be told to go back home and await further summons. Thus, according to the applicant, there has been an unreasonable delay in his prosecution and this has resulted in prejudice.

The second respondent contends that the matter is not properly before the court. According to the second respondent, the matter should have been referred by the lower court.

In his submissions, counsel for the applicant argued that it is not correct that the application should have been made in the lower court. He pointed out that section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] allows a party to apply for permanent stay of prosecution. Counsel for the applicant further submitted that in the present case a record of proceedings was not even opened in the lower court. As to why this was not so, he submitted that this is because there were no witnesses. He further submitted that it is not the magistrate, but prosecutor, who initiates the opening of a record. In this respect he referred to section 140 of the Criminal Procedure and Evidence Act.

Why a record of proceedings was not opened from the onset when the applicant first appeared before the lower court is a mystery. The relevant provision is section 139 and not 140 of the Criminal Procedure and Evidence Act and it states that -

“Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a Magistrates Court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement, in writing, of the charge against that person, describing him by his forename, surname, place of abode, and occupation and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.”

Therefore, the initial summoning of the applicant should have triggered the opening of a record of proceedings. If some other practice is obtaining in the Magistrates Court, it is not in keeping with the above provision.

Counsel for the applicant also submitted that there was no need to lead evidence as all facts are common cause. What is in dispute is the procedure. He insisted that the State has not demonstrated what evidence should have been led before the lower court.

Counsel the applicant also made an analogy with a dismissal for want of prosecution in terms of section 160(2) of the Criminal Procedure and Evidence Act. In support thereof he made reference to the case of S v Johannes Tomana HH531-17.

A quick check of S v Johannes Tomana HH531-17 showed that the judgment relates to recusal. There is nothing in that judgment about dismissal for want of prosecution.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;

“FINAL ORDER SOUGHT

1. That the stay of execution is hereby granted.

2. Respondents shall pay costs of suit on an attorney-client scale.

INTERIM RELIEF GRANTED

1. The respondents are interdicted to conduct the attachment of the applicant's property until finalization of the applicant's appeal under case no. SC550/18.”

I reserved judgment in this matter after argument.

It is seldom that a judge finds himself having to contend with listening to academic presentations on law made for no other purpose than perhaps to simply satisfy the ego of the presenter. A judge unfortunately does not engage in debate with the parties or their legal practitioners. The judge can only listen to submissions made, seek clarifications, and, if merited, require any of the parties or any other person to give further information which may assist in the determination of the urgent application as provided for under Rule 246(1) of the High Court Civil Rules, 1971.

This application, on the papers, appeared to be a very simple one. l had thus scheduled to deal with it on the turn after hearing the parties. It ended up being unexpectedly very prolonged on account of the rather unmerited opposition which was mounted by the respondents through their counsel.

The background to this application is as follows:

(a) The applicant, which is a Namibian registered company, operates an airline which makes scheduled flights into and from Zimbabwe.

(b) The respondents are Zimbabwean nationals who made a chamber application in terms of section 15 of the High Court Act [Chapter 7:06] under case no. HC2355/18. The said application was made against the applicant herein as respondent. Its purport was to seek an order for attachment of the applicant's property to found and confirm jurisdiction in a case for dilectual damages in the sum of US$1 million dollars which the respondents intended to institute against the applicant.

(c) On 27 June, 2018 I granted the said application in case no. HC2355/18. I granted the order made ex parte following submissions by the respondents that the matter be dealt with as such in terms of Order 32 Rule 242(1)(b) – (2) of the High Court Rules, 1971. I was satisfied that the giving of notice to the applicant would have had the effect of forewarning the applicant of the proposed attachment with the result that the applicant could defeat the attachment if forewarned.

(d) For reasons which will become apparent later in this judgment, I will set out the content of the order which l granted. It reads as follows:

IT IS ORDERED THAT:

1. The Sheriff of the High Court or his lawful deputy be and is hereby authorised and directed to attach any of the respondents' movable property at its official address at Shop Number 202, Joina City, Harare and to impound any of the respondents airplanes situate in Zimbabwe in order to confirm and/or found the jurisdiction of the High Court of Zimbabwe, and this order shall be his warrant to do so.

2. The Sheriff of the High Court or his lawful Deputy be and is hereby ordered to keep the property attached pursuant to this order so attached until the action which the applicants intend to institute is finalized.

3. Respondent shall be liable for the Sheriff of High Court or his lawful Deputy's costs of storage of the property attached by the Sheriff's office pursuant to this order as well as any other costs arising from the said attachment.

4. Respondent to pay costs.

(e) It goes without saying that because the application was made ex parte and the relief similarly given ex-parte, the applicant herein was not aware of the making of the order.

(f) For reasons not apparent in regard to how the applicant became aware of the application made under case no. HC2355/18, since it had not been served on the applicant, the applicant's legal practitioners filed a chamber application under case no. HC5808/18 on 22 June, 2018. In the said application, the applicant sought the dismissal of application no. HC2355/18 for want of prosecution purportedly in terms of Order 32 Rule 236(3). The applicant alleged that it filed a notice of opposition in case no. HC2355/18 on 21 March, 2018 following service of the said application which had been filed on 14 March, 2018.

I have indicated that it is not apparent as to how the applicant became aware of the application no. HC2355/18 because the respondent, in making their application aforesaid, indicated that they had not served it.

I also granted it on the understanding that it had not, for reasons which l agreed with, been served.

Further, the notice of opposition purportedly filed by the applicant was not brought to my attention and is not filed in case no. HC2355/18. There is no proof of service of the notice of opposition filed in case no. HC2355/18.

I am also not persuaded that the application, case no. HC5808/18, was a proper or competent application for the simple reason that because application HC2355/18 was a chamber application, its disposal was not party driven but judge driven.

Chamber Applications are referred to a judge by the Registrar for disposal and do not require that a party should set down a chamber application for hearing. It is up to the judge to dispose of the application in terms of either Rule 245 which deals with non-urgent applications or Rule 246 which deals with urgent applications.

Rule 236(3), which allows for a respondent to apply for the dismissal of an application where the applicant has not set it down for hearing within one month after the filing of a notice of opposition, does not apply to chamber applications.

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...

This is a chamber application in which the first applicant seeks an order in the following terms:

“IT IS ORDERED THAT:

1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and

2. The plaintiff be and is hereby ordered to pay costs of suit.”

There is need to set out the brief facts of the matter which give rise to this chamber application.

Background Facts

The first, second, third, and fourth applicants herein are the first, second, third, and fourth defendants respectively in the main action in which the respondent herein is the plaintiff. This chamber application is made by the first applicant, Elias Kaseke, only and the second to fourth applicants have not made any application….,.

In the main action, the respondent (plaintiff in the main action) issued summons out of this court on 25 August 2010 claiming the following relief against the first to fourth applicants (the first to fourth defendants in the main action):

“Wherefore the plaintiff claims against the defendants;

(a) An order declaring the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited together with attendant rights in property known as Number 22 Kennedine Court, corner 7th and Central Avenue, Harare, from the third defendant to the second defendant and subsequent sale and transfer of same shares and rights from the second defendant to the first defendant held under share certificate number 98 to be null and void, and of no force or effect.

(b) An order setting aside the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited under share certificate number 98, together with attendant rights in property known as Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare, from the third to second defendant, and the subsequent sale and transfer of the same shares and rights from the second defendant to the first defendant held under share certificate number 98.

(c) An order for eviction, forthwith, of the first defendant and any persons claiming occupation through him from certain premises known as Stand Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare.

(d) Costs of suit.”

The basis of the claim, in the main action, is that the respondent (the plaintiff in the main action) was appointed the Executrix Dative of the Estate of the Late Jessie Zengeya who died on 22 September 1992 as per Letters of Administration Number 2597/92.

In casu, the first applicant (the first defendant in main action) resides at Number 25 Armadale Road, Borrowdale, Harare. The second applicant (the second defendant in the main action) is a male adult residing at Number 5 Plymouth Road, Chadcombe, Hatfield, Harare. The third applicant (the third defendant in the main action) is a female adult residing at Number 34 Longford Road, Queensdale, Harare and the fourth applicant (the fourth defendant in the main action) is the Master of the High Court cited in his official capacity.

The dispute in this matter involves certain immovable property known as Number 22 Kennedine Court situated at corner 7th Street and Central Avenue, Harare. It is a unit within a block of flats which block is registered in the name of Kennedine Investments (Pvt) Ltd and is fully known as a certain piece of land situate in the District of Salisbury called No.1137 Salisbury Township measuring 892 square metres and ownership therein being evidenced by the issue of a share certificate in the aforementioned company corresponding to a particular unit in the block.

The property in dispute belonged to the late Jessie Zengeya, who, during her lifetime, did not dispose of this property according to the respondent (the plaintiff in the main action) who was later appointed the Executrix Dative of the same estate and also did not dispose of the property (hereinafter known as No.22 Kennedine Court).

On 26 September 2006, the third applicant (the third defendant in the main action), claiming to be the rightful owner of shares and rights pertaining to No.22 Kennedine Court, purported to sell the share and rights in question to the second applicant (the second defendant in the main action) as per an agreement of sale Annexture D to the respondent's (the plaintiff in the main action) declaration.

The respondent (the plaintiff in the main action) contends that the third applicant (the third defendant in the main action) did not have authority of the Executrix Dative (the respondent) of the Estate of the late Jessie Zengeya to dispose of the property hence her purported sale of the shares and rights of the property pertaining to No.22 Kennedine Court was not only unlawful but fraudulent.

Further, the respondent contends (the plaintiff in the main action) that the relevant consent from the fourth applicant (the fourth defendant in the main action), the Master of the High Court, was not obtained for the disposal of the shares and rights in the property in issue.

The point made by the respondent in the main action is that the third applicant (the third defendant in the main action) had no title in the shares and therefore could not pass title to the second applicant (the second defendant in the main action).

In fact, the first and final administration and distribution account was filed by the respondent (the plaintiff in the main action) in DR5597/92 on 23 September 1994 indicating that the property, No.22 Kennedine Court, was still the property of Estate Late Jessie Zengeya.

On 15 July 2007, the second applicant (the second defendant in the main action) purported to sell the rights, title, and interests in the property, No. 22 Kennedine Court, to the first applicant (the first defendant in the main action) for Zimbabwe dollars $450,000 as per an agreement of sale marked Annexture D to the respondent's (the plaintiff in the main action) declaration.

As a result, a share certificate (Annexture B) was produced in favour of the first applicant (the first defendant in the main action) purportedly showing that the first applicant had purchased 1458 shares in Kennedine Investments (Pvt) Ltd which shares correspond to the use and enjoyment of No.22 Kennedine Court.

As already stated, the respondent (the plaintiff in the main action) contends these shares belong to the Estate of Late Jessie Zengeya and the third applicant (the third defendant in the main action) could not pass title to the second applicant (the second defendant in the main action) who also consequently could not pass title to the first applicant (the first defendant in the main action).

The respondent (the plaintiff in the main action) stated, that, she only became aware of these illegal transactions involving the first, second, and third applicants (the first, second, and third defendants in the main action) sometime in July 2010 upon attempting to serve a notice of eviction on the current occupant of the property. This compelled the respondent (the plaintiff in the main action) to issue summons out of this court against all the applicants (the defendants in the main action) on 25 August 2010.

It is common cause, as per the record, that the second, third, and fourth applicants (all the defendants in the main action) did not enter an appearance to defend in terms of the Rules and the presumption therefore is that they are all barred.

It is only the first applicant (the first defendant in the main action) who entered an appearance to defend on 17 September 2010 after being served with summons on 30 August 2010.

It would appear from the record the respondent (the plaintiff in the main action) did not seek any order against the second and third applicants (the defendants in the main action) after their failure to enter any appearance to defend.

The first applicant filed his plea in terms of the Rules which was served on the respondent (the plaintiff in the main action) on 27 September 2010. The respondent (the plaintiff in the main action) in turn filed her replication on 11 October 2010. No further action was taken in the main matter/action.

This means, that, from 11 October 2010 until 25 October 2011, a period of about 12 months, nothing was done on the main action.

This then prompted the first applicant to file this chamber application, on 25 October 2011, seeking the dismissal of the respondent's (the plaintiff in the main action) claim in the main action for want of prosecution and costs of suit.

I was allocated the chamber application on 21 November 2011 and I directed the first applicant to file proof of service of the application and to cite the relevant Rule/Rules of this court upon which the application is premised.

Counsel for the first applicant only responded to the issues raised on 20 January 2012 and attached the relevant proof of service. In relation to the issue of the Rules of the Court relied upon the response filed is as follows:

“We refer to your letter dated 5 December 2011 wherein the honourable Justice MAWADZE wanted clarification and confirmation of two issues, viz:

(a) Cite the Rule or Rules relied upon; and

(b) Proof of service of this application.

In terms of Order 32 Rule 226, all applications, for whatever purpose, in terms of the High Court Rules, shall be made;

226(a)…,.

(b) As chamber application, that is to say, in writing to a judge.

226(2) An application shall be not be made as a chamber application unless -

(a)…,

(b) These rules or other enactment so provide; or

(c) The relief sought is procedural…,.

The relief that is being sought is procedural.

The plaintiff issued summons out of this honourable court and were served on the applicant on 30 August 2010. The applicant filed a notice of appearance to defend on 17 September 2010. The application was subsequently filed on 24 September 2010. The plaintiff, to date, only filed a replication and no other pleadings in order to advance action.

In terms of Order 9 Rule 61, the defendant is given a right to make a chamber application to dismiss the action for want of prosecution.

We respectfully submit that this matter falls within the provision of the Rules cited above and we pray for an order dismissing the court action for want of prosecution. The plaintiff won't suffer any prejudice as it can relaunch the court action when it feels like.”…,.

I received the above quoted response on 25 January 2012, and, in view of the ambiguity with which counsel for the first applicant had responded to the query raised I directed the first applicant's counsel to approach me in chambers and make further submissions.

Counsel for the first applicant was only able to do so on 30 January 2012.

Counsel for the first applicant…, had no meaningful submissions to make except to insist that her response, as filed of record, was in order. She conceded that she was only representing the first applicant and was unable to explain why she had cited the second to fourth applicants as the applicants.

Let me now deal with the merits of the chamber application.

This chamber application has been filed by the first applicant only, and, therefore, it is improper and irregular for counsel for the first applicant to proceed to cite the second to fourth defendants in the main action as the applicants in this matter.

The second to fourth defendants in this main action has not filed any application before the court nor any supportive affidavits.

As already said, the second and third defendants in the main action may, for all intents and purposes, be barred for failure to enter an appearance to defend: see Order 7 Rule 50.

It would therefore be incompetent, in my view to cite the second to fourth defendants in the main action as applicants in this chamber application which is only made by the first defendant in the main action.

The first applicant cannot stampede the second to fourth applicants to be part to the proceedings to which they have not expressed any interest.

I now turn to the response filed by the first applicant's counsel.

It is disheartening to note, that, in many chamber applications filed with the court legal practitioners do not seem to appreciate the need to cite the relevant Rules of the Court upon which such an application is premised.

Such an approach, in my view, would ensure that the legal practitioner, from the onset, is conversant with the Rules of the Court applicable. This would, in turn, save a lot of time wasted when queries are raised by the court on such mundane issues.

In casu, the first applicant's response is that this application is made in terms of Order 9 Rule 61 of the High Court Rules which provides as follows:

“Where the plaintiff has been duly barred from declaring or making a claim, the defendant may, without notice to the plaintiff, make a chamber application to dismiss the action for want of prosecution, and the judge may order the action to be dismissed with costs or make such other order on such terms as he thinks fit.”

I totally disagree with the first applicant.

The plaintiff in the main action has not been barred hence Order 9 Rule 61 of the High Court Rules is inapplicable in the circumstances of the case.

The first applicant also makes vague reference to Order 32 Rule 226 of the High Court Rules.

It is common cause that Order 32 of the Rules relates to application procedure. The question which arises, therefore, is whether it is proper, in the circumstances of this case, for the first applicant to file a chamber application of this nature. Put differently, can a defendant in a matter commenced by way of summons seek to have the plaintiff's case dismissed for want of prosecution after closure of pleadings.

I am of the firm view that there is no direct provision in the High Court Rules which provides for the dismissal of the plaintiff's case for want of prosecution where pleadings are closed and the plaintiff has not been barred.

Indeed, the applicant has not been able to cite the relevant Rule.

In the case of Anchor Ranching (Pvt) Ltd v Beneficial Enterprises (Pvt) Ltd & Anor 2008 (2) ZLR 246 H BERE J had to deal with a similar question and had this to say…,:

“Does Rule 236(3)(b) apply to actions commenced by way of summons?

It will be noted that Order 32 is headed 'Application Procedure'. A simple reading of the whole of that order shows, in very clear terms, that, it is exclusively devoted to the manner and form which applications must take. Order 236(3) deals specifically with aspects of filing of a notice of opposition, opposing affidavit, and answering affidavit. There is no reference to filing of pleadings in this Rule. In my view, the legislature was clear in what was intended and it would be stretching it too far to argue, that, the same provision should cover pleadings. The legislature would have been clear if it so desired. The words used are clear and they require no further stretched interpretation.”

It is clear from the facts of this case that the respondent (the plaintiff in the main action) joined issue with the first applicant (the first defendant in the main action) after filing the replication in terms of Order 19 of the Rules. This, in essence, would mean that the pleadings are closed in terms of Order 16 Rule 107(b) of the High Court Rules.

It is common cause that the respondent (the plaintiff in the main case) took no action after closure of pleadings.

The first applicant, in my view, should have resorted to the various options available to him in terms of the Rules where pleadings are closed. These include the option to seek directions in terms of Order 23 or to compel discovery in terms of Order 24 Rule160 of the High Court Rules or to trigger the curtailment of proceedings in terms of Order 26 by seeking a pre-trial conference.

It is competent for the first applicant (the first defendant in the main action) to initiate any of these procedures in order to bring to finality the litigation commenced by the respondent (the plaintiff in the main action) by way of summons.

I am therefore satisfied that the procedure adopted by the first applicant is wrong and that the order sought by way of a chamber application in the circumstances is incompetent.

The application is dismissed with no order as to costs.

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

In Sibindi v ARDA 1994 (1) ZLR 284 the Supreme Court had to consider an appeal wherein the court had mero motu dismissed a claim when the defendant had been in default on the date of trial and no application had been made for the dismissal of the claim. GUBBAY CJ..., observed as follows ...

“I am satisfied, however, that the learned judge erred in dismissing the action. Indeed, Mr Mutendadzamera, who appeared for the respondent, very fairly conceded that he was unable to support that aspect of the judgment. The respondent was in default of appearance at the trial. It had not sought the dismissal of the action brought against it. There was, therefore, no application before the learned judge for the grant of such an order. It is well established that a superior court has an inherent jurisdiction to dismiss an action. See Meyer v Meyer 1948 (1) SA 484 at 487; Broughton v Manicaland Air Services (Pty) Ltd 1972 (1) RLR 350 (G) at 352B-C; 1972 (4) SA 458 (R) at 460A-B; Schoeman en Andere v Van Tonder 1979 (1) SA 301 at 304G-H; Kuiper & Ors v Benson 1984 (1) SA 474 (W) at 476H-477B. But I am unaware of any decision in which that power has been exercised by the court mero motu, and in favour of a defendant who is in default. Invariably, its exercise has followed upon the making of an application, and, I believe, correctly so. An examination of the Rules of the High Court appears to me to support the view I take. They reveal that an action may be dismissed on application by the defendant where the plaintiff has been barred from declaring or making a claim (Rule 61); or on the ground that the action is frivolous or vexatious (Rule 75); or for non-compliance with an order compelling production of a document (Rule 168 and Rule 169(4) or requiring answers to an interrogatory (Rule 196). No provision is made for dismissal of an action solely at the instance of the court or judge.”

I have quoted in extent the dicta from the learned Chief Justice in order to put into a proper perspective the power that a court, even a superior court of inherent jurisdiction, has.

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

This is a chamber application for dismissal of an application for stay of execution for want of prosecution in terms of section 236(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. HC11759/16 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 in 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) of the High Court Rules provides;

“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 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 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 length of delay in fling an 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 Rule 236(3) of the High Court Rules, 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, the 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 the 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 heads 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 paragraph 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 Rule 449. 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 in legal fees. The property in question is likely to sell for $90,000 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 applications 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 Rule 449 of the High Court Rules.

I am aware of other applications 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.

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Law Portal
Zimbabwe

Final Orders re: Principle of Finality to Litigation iro Dismissal of a Matter For Want of Prosecution

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO
Ruled By: NDOU J

HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.]
Ruled By: NDOU J

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

HH52-10 : ROUTETOUTE BV and PENINSULA PLANTATION and MATANUSKA and BRIGHTSIDE FARM (PRIVATE) LIMITED vs MINISTER OF LANDS and MINISTER OF FOREIGN AFFAIRS and AMBASSADOR E. CHIMONYO
Ruled By: OMERJEE J

HH165-10 : DAVID CHAPFIKA vs TAKADANA MAKINA and HEDON CHATAMBALALA and DEPUTY POLICE COMMISSIONER GENERAL MATANGA and ASSISTANT POLICE COMMISSIONER PFUMVUTI and THE MINISTER OF LANDS
Ruled By: BHUNU J

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

HH59-11 : PATHFINDER INTERNATIONAL (PVT) LTD vs THE TRUSTEES OF ALEXANDER CLUB
Ruled By: BHUNU J

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO
Ruled By: MATHONSI J

HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI
Ruled By: MAKONI J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD
Ruled By: KAMOCHA J

View Appeal
SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HH38-15 : NMB BANK LIMITED vs MAXORCARTER (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

HH199-15 : JOSEPH MANDIZHA vs CHEN WANG and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MANGOTA J

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O.
Ruled By: MUSAKWA J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

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Law Portal Zimbabwe

Final Orders re: Principle of Finality to Litigation iro Dismissal of a Matter For Want of Prosecution

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO Ruled By: NDOU J

HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA Ruled By: BHUNU J

HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA Ruled By: MUTEMA J

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO Ruled By: CHITAKUNYE J

HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.] Ruled By: NDOU J

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE Ruled By: NDOU J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE Ruled By: NDOU J

HH52-10 : ROUTETOUTE BV and PENINSULA PLANTATION and MATANUSKA and BRIGHTSIDE FARM (PRIVATE) LIMITED vs MINISTER OF LANDS and MINISTER OF FOREIGN AFFAIRS and AMBASSADOR E. CHIMONYO Ruled By: OMERJEE J

HH165-10 : DAVID CHAPFIKA vs TAKADANA MAKINA and HEDON CHATAMBALALA and DEPUTY POLICE COMMISSIONER GENERAL MATANGA and ASSISTANT POLICE COMMISSIONER PFUMVUTI and THE MINISTER OF LANDS Ruled By: BHUNU J

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT Ruled By: CHIWESHE JP

HH59-11 : PATHFINDER INTERNATIONAL (PVT) LTD vs THE TRUSTEES OF ALEXANDER CLUB Ruled By: BHUNU J

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF Ruled By: MATHONSI J

HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO Ruled By: MATHONSI J

HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI Ruled By: MAKONI J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS Ruled By: BHUNU J

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL Ruled By: NDOU J

Appealed HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO) Ruled By: MAKONESE J

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD Ruled By: KAMOCHA J

View Appeal SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HH38-15 : NMB BANK LIMITED vs MAXORCARTER (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA Ruled By: HUNGWE J

Appealed SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

View Appeal HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS Ruled By: CHATUKUTA J

HH199-15 : JOSEPH MANDIZHA vs CHEN WANG and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED Ruled By: MANGOTA J

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU Ruled By: MAKONESE J

HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O. Ruled By: MUSAKWA J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya) Ruled By: MAWADZE J

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD Ruled By: GOWORA J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: MATANDA-MOYO J

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Law Portal
Zimbabwe

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO
Ruled By: NDOU J

HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.]
Ruled By: NDOU J

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

HH52-10 : ROUTETOUTE BV and PENINSULA PLANTATION and MATANUSKA and BRIGHTSIDE FARM (PRIVATE) LIMITED vs MINISTER OF LANDS and MINISTER OF FOREIGN AFFAIRS and AMBASSADOR E. CHIMONYO
Ruled By: OMERJEE J

HH165-10 : DAVID CHAPFIKA vs TAKADANA MAKINA and HEDON CHATAMBALALA and DEPUTY POLICE COMMISSIONER GENERAL MATANGA and ASSISTANT POLICE COMMISSIONER PFUMVUTI and THE MINISTER OF LANDS
Ruled By: BHUNU J

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

HH59-11 : PATHFINDER INTERNATIONAL (PVT) LTD vs THE TRUSTEES OF ALEXANDER CLUB
Ruled By: BHUNU J

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO
Ruled By: MATHONSI J

HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI
Ruled By: MAKONI J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD
Ruled By: KAMOCHA J

View Appeal
SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HH38-15 : NMB BANK LIMITED vs MAXORCARTER (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

HH199-15 : JOSEPH MANDIZHA vs CHEN WANG and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MANGOTA J

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O.
Ruled By: MUSAKWA J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J