MURINGAYI v BEREJENA NO

HIGH COURT, HARARE

[Pre-Trial Conference HH 722-16]

November 4 and 23, 2016

CHITAPI J

Practice and procedure – Postponements – Principles to be considered.

Practice and procedure – Pre-trial conference – Attendance of parties – Whether dispensable.

Having agreed to a pre-trial conference date, plaintiff’s legal practitioner wrote correspondence indicating that she would not be available for the hearing and would seek a postponement. A legal practitioner who knew nothing about the substance of the matter had appeared, without plaintiff, to move the postponement.

Held, that the following principles govern postponements:

1. A litigant seeking a postponement seeks an indulgence. Therefore, the decision whether to grant a postponement involves the exercise of a judicial discretion.

2. The fact that parties may be disposed that a matter be postponed, is only one of several factors which are considered in determining whether to indulge a request for a postponement. The convenience of the court is an important factor to consider in relation to an application for a postponement.

3. A court should be slow to turn down an application for a postponement where the party seeking the indulgence of the postponement is bona fide and had made a timeous application.

4. A party seeking a postponement should be prepared to proceed with the case if the postponement is refused.

Held, further, that a pre-trial conference is not a process for legal practitioners but for the parties, and where represented, with their legal practitioners.

Cases cited:

Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd 2015 (2)
ZLR 222 (S), applied

Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T), referred to

D’Anos v Heylon Court (Pty) Ltd 1950 (1) SA 324 (C), followed

Joshua v Joshua 1961 (1) SA 455 (GW), referred to

McCarthy Retail Ltd v Short Distance Carriers CC 2001 (3) SA 482 (SCA), referred to

National Police Service Union and Others v Minister of Safety and Security and Others 2000 (4) SA 1110 (CC), referred to

R v Zackey 1945 AD 505, referred to

Shilubana and Others v Nwamitwa (National Movement of Rural Women & Commission for Gender Equality as Amici Curiae) 2007 (5)
SA 620 (CC), applied

Zimbabwe Electricity Transmission & Distribution Co v Ruvinga 2013 (1) ZLR 510 (S), cited with approval

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 26 rr 182, 183

K Chisekerere, for the plaintiff

A Nyamupfukudza, for the defendant

CHITAPI J:

I dismissed the plaintiff’s claim with costs and indicated that my reasons for doing so would be given in due course. These are they:

The plaintiff issued summons against the defendant in her capacity as executor dative in the estate of the late Titus George Berejena. The plaintiff and the defendant executed a sale agreement in respect of a property for the purchase price of US$ 50 000 with the plaintiff as buyer and the defendant as purchaser. The agreement was executed on 5 March, 2015. The defendant paid a deposit of US$ 30 000 but defaulted on payment of the balance of US$ 20 000. The defendant on account of the plaintiff’s failure to pay the balance cancelled the sale agreement. When the plaintiff claimed the refund of the US$ 30 000, the defendant failed to pay it. The plaintiff then instituted this action through issue of summons on 8 June 2016.

The defendant filed a plea in which she did not deny that the refund was due. She, however, averred that she could only refund the money upon the repurchase of the property by an alternative buyer because she no longer had the deposit, having distributed it to the beneficiaries of the estate. She also pleaded that the plaintiff should bear the liability for the payment of the agent’s commission in the sum of US$ 2 500. She accordingly tendered payment of the sum of
US$ 27 500 on resale of the property.

The pleadings were subsequently closed and discovery effected by the plaintiff on 15 September 2016, on which date the plaintiff also filed a notice of application for set down of the matter for pre-trial conference. By notice dated 23 September, 2016 the Registrar issued a directive to the parties to hold a round table discussion to try and agree on possible ways of settling the matter and/or curtailing the duration of trial. The parties’ attention was drawn to
O 26 r 182 (2) of the High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”) so that they deal with matters listed in the said rule.

The pre-trial conference was set down before me for 19 October, 2016. On that date the plaintiff appeared with her legal practitioner Ms P Mutimudye. The defendant appeared with her legal practitioner Mr Nyamupfukudza. The parties indicated to me that they had met in round table negotiations as directed in the Registrar’s letter. The legal practitioners indicated further that there were a few sticking points still to be wrapped up. One of the issues was that the plaintiff was not agreeable to pay the agents’ commission of US$ 2 500 and wanted her full refund of the US$ 30 000. The plaintiff was alleged to be frustrating potential buyers and it was reported that one prospective purchaser had withdrawn an offer to purchase the property owing to the squabbling between the plaintiff and defendant. I asked the parties whether there was room for further negotiations and parties agreed that with good faith on their part, further negotiations could yield a settlement.

I advised the parties that from the pleadings and what they had submitted to me, there was no dispute to refer to trial because the agreement of sale attached to the declaration and which was cancelled clearly provided answers to the issue of agents’ commission. It was payable by the seller. The defendant’s counsel then submitted that in his view, the purchaser should pay the commission because she breached the agreement. I then suggested to the parties that they consider ring fencing the issue of commission and that the plaintiff allows the property to be resold without hindrance, accept the offered US$ 27 500 and have the disputed US$ 2 500 paid into the trust account of one of the legal practitioners pending further negotiations. It had been reported that the plaintiff in any event was not averse to payment of the agents’ commission. She, however, indicated that the estate agent had not claimed the commission and that in the absence of such a claim, the defendant would be unjustly enriched by withholding the money on the pretext that it was intended for agent’s commission yet the agent did not seek to recover any commission. I suggested to the parties that they engage the estate agent and attempt a settlement of the matter as these were clearly issues non-suited for a trial except to satisfy the parties’ egos.

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