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.

The applicant submitted that the respondent should still have set down the application and that it was up to the registrar to accept or decline to accept the request for set down. I am not in agreement with that proposition. There was no useful purpose in requesting set down of the matter in the face of the order. That process would just have served to test the registrar as the directive of the court was very clear. That the registrar would have accepted the answering affidavit is unlikely in the face of the order.

At the hearing, the respondent submitted that because the costs had to be taxed first, the respondent only became aware that the bill was taxed on
6 April 2016 and the taxed costs were only paid around 10 May 2016. The court reserved judgment after argument. Two days later, applicant's counsel wrote a letter to the court suggesting that the court had been misled regarding the date when the costs were paid. The court arranged for the parties to meet at its chambers for clarification of the issue. I allowed documentation related to the payment of costs attached to the letter of complaint. The reason for this is that the submissions related to the dates when the respondent became aware that taxation had been finalised and dates when the costs were paid. These submissions had been made from the bar by Mr Chinyama. The applicant had not had time to prepare and respond to these submissions. The documentation reveals that costs were paid on 8 April 2016 and that the applicant became aware as early as
29 March that the costs had been taxed. The respondent had also been sent notice of the taxing which took place on 22 March 2006. Mr Chinyama explained that he did not intend to mislead the court on the dates but was not sure about the dates he gave in his submissions. His explanation is unacceptable. I view Mr Chinyama's submission regarding the dates when the respondent paid the costs as a deliberate attempt to mislead the court. He gave the court false and inaccurate information. If his conduct was not deliberate, then he was reckless. We look forward to legal practitioners acting competently. We do not expect legal practitioners, senior legal practitioners for that matter, to come to court and present guess work. Legal practitioners have a responsibility to the court and should always be sure of their facts before they make representations to the court. Mr Chinyama should always be mindful of his responsibility to the court. He is above all an officer of this Court. He is obligated to take seriously proceedings of this Court.

The respondent has been tardy in its dealings regarding the issue of costs. On 24 February 2016, the respondent wrote to the applicant undertaking to pay the costs by mid-February. This was followed by yet another letter dated 8 March 2016 wherein the respondent indicated that it was prepared to pay the costs without the need to tax them and offered to pay by 15 March 2016. Despite the promises to pay, the respondent did not pay the costs. Correspondence between the parties shows that the costs had been taxed by 25 March 2016. On 29 March 2016, respondent was advised by way of letter received the same day that taxation of the costs was complete and was requested to pay the costs. A follow up letter was written on 6 April 2016 where in the applicant expressed its unhappiness with the tardiness of the respondent. The respondent was unperturbed. The respondent had a duty to take steps to ensure timeous finalisation of the matter. Had the respondent exercised the option to pay costs at this stage, the application would expeditiously have been dealt with. Despite its supposed willingness to pay, the respondent sat on its laurels and avoided paying the costs thereby avoiding setting down the application.

The respondent only paid the costs on 8 April 2016. Once costs were paid, the ordinary rules of procedure kicked in. The respondent was required to set the matter down within one calendar month from the date of payment of the costs. The applicant filed this application on 11 May 2016, a month later. By that date respondent had neither filed an answering affidavit nor taken any steps to set the matter down. The respondent did not do anything about the application until 8 June 2016 when the respondent filed its answering affidavit and heads of argument in the application for upliftment of bar. The respondent subsequently set the application for upliftment of bar for 13 September 2016.

It took two months for the respondent to take action. It is clear that the respondent deliberately refrained from paying the costs in order to cause delays. This interlude is not explained in the opposing affidavit. The respondent's papers do not establish evidence of when the costs were paid. The delay was fairly lengthy and the explanation for the delay was patently insufficient. The respondent does not explain in its notice of opposition what its reasons for the delay in setting the matter down for hearing were after it paid the taxed costs. The respondent deliberately refrained from making any reference to the issue regarding costs and dates in either its heads of argument or notice of opposition to this application. The respondent has not been candid with the court. By suggesting that the respondent paid the costs around 10 May 2016, the respondent wanted it to appear as if the application for dismissal made on
11 May 2016 was premature. The respondent has failed to give a reasonable explanation for the delay in prosecuting the application in its opposing papers. The heads of argument filed are sketchy and unhelpful. The heads filed are a five point summary of the notice of opposition. The court expects better than this especially when the litigant involved is a legal practitioner. The respondent filed its heads of arguments together with its answering affidavit. This shows a disregard of the Rules. The respondent failed to monitor its claim and prosecute the application with the attentiveness required. The respondent seems to be developing a tendency not to observe the Rules. The respondent had earlier on failed to file heads of argument and hence the application for upliftment of the bar which it failed to prosecute. It filed the answering affidavit without leave. We are not here dealing with an unsophisticated and unrepresented litigant. The respondent is a law firm which was represented by its senior partner.
Mr Chinyama ought to have done better. The respondent not only failed to meet time limits, its conduct overall shows a serious disdain for the Rules and prescribed time limits.

The respondent suggests that because it filed an answering affidavit and caused the application for upliftment of bar before this application was dealt with, this application has been overtaken by events. Rule 236 (3) does not state so. It is not a defence for a respondent who has been served with an application for dismissal for want of prosecution to plead that he subsequently made arrangements for the application to be set down. Once a litigant has been served with an application for dismissal in terms of r 236 (3), he cannot file any other process in pursuance of the proceedings under scrutiny. The application for dismissal has to be dealt with first. Once an application for dismissal for want of prosecution has been filed, it must be determined on the merits unless it is withdrawn or the bar is uplifted by consent. If the courts were to allow a respondent who has failed to comply with the requirements of r 236 (3)(b), to jump and set down the application complained against to defeat the application for dismissal, this would be tantamount to the courts allowing respondents to pull the carpet from under the feet of applicants. The action that a respondent takes after an application for dismissal has been made is of no consequence. The only option open to him, is to oppose the application for dismissal and let it be dealt with on the merits. The respondent has tried to set down this application before this matter is heard in order to frustrate this application. The applicant was entitled to get closure of the appeal pending. Justice delayed is justice denied.

It is clear that the applicant abused the court. I am not satisfied that the explanation proffered by the respondent is a reasonable and an acceptable explanation for the delay encountered in this application. I have decided in the exercise of my discretion to allow the application for dismissal of the application for want of prosecution. Evidently the respondent sat back, delayed and avoided setting down the application by not paying the costs required. It is the duty of this Court to guard against such an abuse of its processes.

Costs are always in the discretion of the court. The respondent has acted in utter disdain of the Rules and has no explanation for its conduct. The conduct of the respondent deserves to be penalised with an order of costs on a higher scale.

In the result it is ordered as follows:

1. The application is upheld.

2. The application in case number HC 539/16 be and is hereby dismissed with costs on an attorney client scale.

3. The First respondent shall pay the costs of this application on an attorney client scale.

Chambati, Mataka & Makonese, applicant's legal practitioners

Chinyama & Partners, respondent's legal practitioners