Lucia Mkandla and Emmanuel Ngwena Musara and City of Kwekwe v Aaron Michael Gwarazimba

### Preamble
1
HB 124/20
HC 588/18
---------


LUCIA MKANDLA

And

EMMANUEL NGWENA MUSARA

And

CITY OF KWEKWE

Versus

AARON MICHAEL GWARAZIMBA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 13 JUNE 2019 & 25 JUNE 2020

Opposed application

C. Chigomere for the applicants

A. Sibanda for the respondents

TAKUVA J:	This is an application for dismissal of an application for want of prosecution in terms of Rule 236 (3) (b) of the High Court Rules 1971 (the rules).

The history is as follows.  Respondent who is a sitting councilor in 3rd applicant’s Council filed an application for cession of his right, title and interest in respect of a stand he alleged to belong to him.  The application was filed under cover of case number HC 2750/19 on the 19th of October 2017 and applicants filed their notice of opposition and opposing affidavits on the 3rd of November 2017.  These documents were duly served on the respondent on the same day.  Respondent sat on the papers for 3 months without neither filing his answering affidavit nor setting the matter down as a sign of his intention or desire to prosecute and finalise this matter.

The applicant then filed this application on 29 February 2018.  The application was opposed by the respondent on the grounds that he failed to comply with the rules because he was not “feeling well” since November 2017.  He filed a letter from his doctor confirming that respondent has some medical condition.

There are two simple issues to resolve in this matter.  These are:

Whether or not the applicants have laid grounds warranting the dismissal of the application?

Whether or not the respondent has shown good cause why the application should not be dismissed for want of prosecution?

As regards the 1st issue, applicants’ argument rests on the ground that respondent has not prosecuted his application within the time provided for by the rules.  This fact is actually common cause.

Rule 236 (3) (b) of the Rules provides as follows;

“Where the respondent has filed a notice of opposition and an opposing affidavit and within a 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;

set the matter down for hearing in terms of Rule 223; or

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.

Respondent in his opposing affidavit interprets this rule to mean that applicant should have set the matter down instead of filing an application for dismissal for want of prosecution.  In my view the respondent is wrong.  The import of the rule was laid bare by MATHONSI J (as he then was) in the case of Permanent Secretary, Ministry of Higher & Tertiary Education v College Lectures Association of Zimbabwe & Ors HH-628-15 as follows:

“Clearly therefore where an applicant has not acted one way or the other to  have the matter set down within the month or filing an answering affidavit, the respondent has an election either to set the matter down himself or to approach a judge in chambers for the dismissal of the application for want of prosecution.  It is a choice available to the respondent where the applicant has not done anything for a period of one month after filing an answering affidavit and is designed to move the matter forward or to finality instead of leaving it stagnant.”

The meaning of the rule is that a respondent on notice to an applicant has two choices.  None of those takes precedence over the other.  Therefore, the applicant in casu cannot be blamed for not setting the matter down.  The respondent did nothing for 3 months and only sprang into action after applicant filed this application.  This is a blatant disregard of the rule of this court.

The second question is whether or not respondent has shown good cause why the application should not be dismissed for want of prosecution.  The legislative intention in crafting this rule was to ensure that matters that are brought to the courts are dealt with expeditiously.  A judge can only make an order other than dismissal if the respondent has opposed the application and has shown good cause why the application should not be dismissed for want of prosecution – see Scotfin Ltd v Mtetwa 2001 (1) ZLR 249.

I am satisfied that the respondent has not shown a good reason why his application should not be dismissed.  Respondent’s reason is that he was unwell and unable to attend to his legal practitioner’s offices to deal with the replying documents.  The respondent only attached a letter from his doctor instead of filing an affidavit or medical report.  Further, the period the respondent is alleging to have been seriously ill is the same period he was attending regular Council meetings.  On 16th November 2017 respondent attended a full Council meeting.  The same happened on 8 December 2017, 18 January 2018, 31 January 2018 and February 2018 – see minutes of those meetings attached to the applicant’s answering affidavit.  Respondent did not comment on the documents in his heads of argument.  He only challenged them on the hearing day alleging that they had been “doctored”.  The doctor’s letter dated 26 February 2018 states in part;	“This letter serves to confirm that we have been attending to the above named since January 2018 when he presented with over four months of difficulty in breathing which rendered him unable to work …”

Surely, this is what respondent told the doctor.  However, facts on the ground show that he was able to work and he indeed went to work on numerous occasions.  What is also worrisome is that after receiving this application, respondent proceeded to file an answering affidavit in a bid to defeat the purpose of this application.  After being caught, respondent contended that he was not aware of the application for dismissal for want of prosecution since he signed his replying affidavit on the 22nd of February 2018.  However, the corresponding attorneys of the respondent received the application on the 20th of February 2018.  Therefore the respondent had knowledge of the application when he filed his answering affidavit.

I am convinced that the respondent lied under oath and lies, no matter how confidently told, can never amount to good cause why such an application should not be dismissed for want of prosecution.

Respondent further contended that this is not an application that should be dealt with on technicalities in that there are prospects of succeeding in the main application.  In my view, the significance and import of r236 in an application of this nature is to determine whether or not the respondent has to be condoned for non-compliance with the rules.  To do otherwise will be negating the applicant’s recourse through that rule.

In Kinley Row Investments (Pvt) Ltd v City Bright (Pvt) Ltd & Anor HH-792-15 it was held that;

“In my view what has to be determined is whether there has been a failure to comply with the rules triggering the right of the applicant to seek a dismissal of the application for want of prosecution.  If there has been such non-compliance, whether the respondents are entitled in response to such an application to leave to set the matter down despite the non-compliance.”

It was further held that;

“Where the respondent has elected to seek a dismissal, r236 (4) (b) gives the judge a discretion to either order a dismissal with costs or to make such other order as he deems fit.  It is the making of such other order the judge deems fit which requires further consideration.  Does that give the judge the leeway to dismiss an application made in terms of that rule where the application has failed to comply with the time frame for setting the matter down?  I think not.  This is because the rule gives the respondent a remedy to have the matter dismissed upon failure to comply.  Where the respondent has sought that remedy, which he is entitled to, it would not be a judicious exercise of the judge’s discretion to refuse that remedy in favour of some other obscure order not defined by the rules.  Doing so would negate the remedy given to the respondent.”

Accordingly, applicant should be at liberty to exercise its right to a remedy provided for in the rules.  Rules of court are put to regulate the parties conduct.  Condonation can only be upon good cause being shown.  In Mataruse v Hide and Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 at 65D-F, KORSAH JA stated that;

“By virtue of the power conferred on this court, by r4 supra to condone any non-compliance with the rules, none of the provisions of the rules are strictly peremptory.  The rules are, however, there to regulate the practice and procedure of the court in general terms and strong grounds would have to be advanced, in my view to persuade a court to act outside the powers provided for specifically in the rules …  Non-compliance of the rules will only be condoned upon good cause shown by the applicant.  There must be a reasonable and acceptable explanation for the failure to comply with the rules …”

In casu, respondent has proffered an unreasonable and unacceptable explanation for his failure to comply with the rules.  Litigants must be candid with the court especially in court applications where the court relies on affidavits sworn to by the parties.  Respondent lied in his opposing affidavit that during the relevant period, he was so ill that he could not give instructions to his legal practitioner, when in actual fact he was busy attending meetings at 3rd applicant’s offices.  He preferred to draw allowances from 3rd applicant instead of attending to his case.

Accordingly, the application filed under case number HC 2750/17 is hereby dismissed for want of prosecution with costs.

Mutatu & Partners, applicant’s legal practitioners

Messrs Mhaka & Attorneys, c/o Majoko & Majoko, respondent’s legal practitioners