MELGUND TRADING (PVT) LTD v CHINYAMA & PARTNERS

HIGH COURT, HARARE

[Opposed Application HH 703-16]

October 31 and November 16, 2016

DUBE J

Practice and procedure – Dismissal for want of prosecution – Requirements of – Effect on proceedings whose dismissal is sought.

Legal practitioner – Conduct and ethics – Duty to court – Accuracy of submissions.

Held, that in an application for dismissal for want of prosecution; the applicant bringing an application for dismissal for want of prosecution, is required to show that there has been an inexcusable failure to bring a claim to finality. On the other hand, the burden on the respondent is simply to explain the delay. Once a litigant has been served with an application for dismissal in terms of O 32 r 236 (3) of the High Court Rules, 1971 (RGN 1047 of 1971), he cannot file any other process in pursuance of the proceedings under scrutiny. Legal practitioners have a responsibility to the court and should always be sure of their facts before they make representations to the court.

Cases cited:

Karengwa v Mpofu HB 628-15 (unreported), referred to

Ndlovu v Chigaazira HB 104-05 (unreported), referred to

Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1) ZLR 25 (H), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, s 69

High Court Rules, 1971 (RGN 1047 of 1971), O 32 r 236 236 (3), (3)(b)

Z Chadambuka for the applicant

C Chinyama for the respondent

DUBE J:

This is an application for dismissal of an application for want of prosecution in terms of O 32 r 236 (3) of the High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”).

The salient background facts to this application are as follows: There is a civil appeal pending under CIV “A” 13/15. The respondent failed to file heads of argument timeously in that matter and was barred. The matter was removed from the roll to enable the respondent to make an application for upliftment of the bar and the following order was made:

IT IS ORDERED BY CONSENT AS FOLLOWS:

1. The matter be and is removed from the roll.

2. The respondent tenders costs.

3. The application for upliftment of bar for the late filing of heads of arguments under HA 539/16 shall only be set down upon payment of the tendered wasted costs in appeal CIV “A” 13/15.

Subsequent to this order, the respondent filed an application for removal of the bar operating against it under HC 539/16 on 21 January 2016. The respondent served the application on the applicant on 22 January 2016. The applicant filed its notice of opposition and opposing affidavit on 28 January 2016 and were served on the respondent on 29 January 2016. The applicant avers that the respondent, after being served with the notice of opposition, failed to file an answering affidavit or to set down the matter for hearing as provided for by the Rules. The applicant contends that the respondent merely used the application for upliftment of the bar to abuse court process and as a delaying tactic. This application was filed on 11 May 2016, three months after the respondent had filed its opposing papers. The applicant submitted further that although there was an order barring the respondent from setting down the application for upliftment of bar for hearing, there was nothing to stop the respondent from filing an answering affidavit if it wished to do so. The applicant also takes issue with the fact that after the respondent had paid the costs as ordered by the court, it failed to set down the application for upliftment of bar within one calendar month. The applicant argued that once the legal ban imposed by the order was jumped, the respondent ought to have immediately set down the application for hearing.

The respondent defends the application. The respondent submitted that it was barred from setting the application for upliftment of bar and that any further process could only be pursued after payment of the applicant’s costs which costs were paid recently. The respondent maintained that the current application was prematurely brought without the respondent being given time to attend to the filing of the answering affidavit and heads of argument in the main application. The respondent submitted further that it has since complied with the Rules as it has since paid the wasted costs for the appeal hearing and applied for set down of the application for upliftment of bar. The respondent submitted that this application has triggered the respondent to act and normalise the situation by filing an answering affidavit and heads of argument in the main application and set down the matter for hearing. The respondent argued that it did so before this application was heard on the merits to the extent that the application for dismissal for want of prosecution has been overtaken by events. The respondent urged the court not to ignore the notice of set down of the application for upliftment of bar and proceed and dismiss this application where there is clear evidence of prosecution of the matter.

Order 32 r 236 (3)(b) of the Rules 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 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 rule allows a respondent to make a chamber application for dismissal for want of prosecution where a period in excess of a month has elapsed after service of a notice of opposition and opposing affidavit by the applicant on a respondent and where an answering affidavit has not been filed and the applicant has failed to set the matter down for hearing. The rule gives a respondent in an application a discretion to either set the matter down for hearing or make an application of this nature. The rule also places an obligation on an applicant to prosecute its application. The object of the rule is to curtail delays in the prosecution of applications and to ensure finality to legal proceedings – see Ndlovu v Chigaazira HB 104-05 (unreported). An application for dismissal of prosecution brought in terms of r 236 (3)(b) assists in putting to an end to proceedings that are instituted and not attentively followed up. There is a huge backlog of applications in this Court. The situation is compounded by litigants who file applications and neglect to pursue them. Rule 236 is a suitable mechanism to assist in case management.

A litigant who has failed to pursue his application is required to explain his failure to prosecute his application timeously. The approach of the court in applications for dismissal for want of prosecution was stated in Karengwa v Mpofu HB 628-15 (unreported) at 3 as follows:

“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 also Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1)
ZLR 25 (H).

An applicant bringing an application for dismissal for want of prosecution is required to show that there has been a failure to take necessary steps to bring a claim to finality in terms of the Rules and secondly that the delay is inexcusable or that there is no honest, satisfactory and reasonable explanation for the delay. The burden on the respondent is simply to explain the delay. The conduct of the respondent is also paramount. The court is required to consider all relevant and surrounding circumstances of the case. The court must explore the period of the delay complained against, the reasons and explanation for it, and consider the prejudice if any caused to the other party. A court faced with such an application has a wide discretion in deciding whether to grant the application for dismissal. The court is required to exercise the power to dismiss scarcely, in a careful manner, and in extraordinary circumstances. The interests of the applicant, the administration of justice and those of the respondent should be balanced. The court must be sensitive to the litigant’s right to access to a court for the resolution of any dispute and a fair hearing as provided for in s 69 of the Constitution of Zimbabwe, 2013 so as to prevent any injustice occurring and to endeavour to do justice between the parties. Where a respondent fails to proffer a reasonable explanation for its failure to adhere to the Rules and it is clear from its conduct that it abused court process, the court is entitled to grant the application sought.

The resolution of this dispute rests on the conduct and the explanation given by the respondent for the failure to act timeously. The order granted by the appeal court barred the respondent from setting down the application for upliftment until respondent had paid the wasted costs. The Rules do not provide for a scenario where the application of the Rules is stayed by an order of court. The court exercised its inherent powers in granting that order. The respondent was put on terms, to ensure that it took positive steps to aid the conclusion of the appeal matter by paying the wasted costs expeditiously and set down the application for upliftment. The legal effect of clause 3 of the order was to stay the setting down of the application for upliftment only, pending the payment of wasted costs. The application for upliftment was required to be made in compliance with O 32 of the Rules and all other processes related to the filing of an application adhered to up to the set down stage. If the applicant desired to file an answering affidavit it was still entitled to file it in compliance with the Rules. Nothing precluded the respondent from filing an answering affidavit if it wished to do so. The fact that respondent subsequently filed an answering affidavit, albeit late, shows that it desired to file it. The question is, did it do so in terms of the Rules? The respondent filed the answering affidavit without leave of the court and well outside a month of filing and serving the opposing papers. It fell foul of the Rules. The respondent may not hide behind clause 3 of the order which only stayed the setting down of the application. The time that respondent took to file the answering affidavit after the payment of costs is inordinate when one considers that the respondent had paid the costs by
8 April 2016. The respondent failed to take necessary steps to bring its claim to finality timeously.

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