Nqobile Ngwenya v Stanbic Bank Ltd & Anor

### Preamble
1
HB 274./20
HC 827/20
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NQOBILE NGWENYA

Versus

STANBIC BANK LTD

And

NDABEZINHLE LORENZO  MASEKO

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 30 OCTOBER & 19 NOVEMBER 2020

Opposed Application

J. Mugova for the applicant

M. Ndlovu for the respondents

TAKUVA J:	In this application, applicant seeks the following relief:

“1.	The respondents’ chamber application for condonation made under case number HCA 62/20 be and is hereby dismissed for want of prosecution.

2.	Respondent shall bear the costs of suit.”

Background

On 26th February 2020 respondent lodged with this court a chamber application for condonation of late filing of court application for review under case number HC 462/20.  Applicant issued and served a notice of opposition and opposing affidavit on the respondent on 10 March 2020.

Respondent neither filed its answering papers nor set the matter down for hearing.  In terms of o32 r236 (3) of the High Court Rules 1971 the applicant has two options; either set the matter down for hearing or apply to have the respondent’s application dismissed for want of prosecution.  Applicant chose the latter option.

It was contended that more than one (1) month has passed since respondent did anything to pursue his matter even taking into account the lockdown period during which counting of days of court were suspended from 30th  March 2020 to 11th May 2020 through Practice Direction Nos./and 3 of 2020 respectively.  At the start of the lockdown period, respondent had already exhausted at least three (3) weeks of the 1 month period within which to act in pursuance of this matter.

It was further argued that this is not the 1st time that respondent has failed to present his matter against the applicants.  In the past respondent had filed four (4) applications against the applicant three of these were dismissed for want of prosecution while the  fourth is pending after respondent opposed it.  See HC 1974/18; HC 1491/19; HC 2478/19 and HC 874/20.

In their heads of argument, applicant raised a point in limine namely that respondent does not dispute the substantive application being granted.  Reliance was placed on the rule of law that what is not denied in affidavits must be taken to be admitted – see Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S) at  p 93 F; Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S) at 127 F.

It was submitted that as a result of the above, the respondent’s opposition is not an opposition per se but a largely convoluted concession to the applicant’s application.

On the merits applicants argued that respondent has failed to proffer a reasonable explanation for his failure to file answering papers and or set his matter down for hearing.  The law requires that a litigant who has failed to present his application timeously is required to proffer a reasonable explanation for such failure – see Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) at p349 H where the court stated;

“where a respondent failed to proffer a reasonable explanation for its failure to adhere to the Rules and it is clear from his 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 failure to act timeously.”  See also Karengwa v Mpofu HB 628/15.”

In casu, it was submitted that respondent is clearly abusing this Court by his continued spurious applications in which he had continuously used the same excuse of his legal practitioner purported circumstances whenever he fails to comply with the rules of this court.

Finally, applicant argued that respondent has failed to show that he has a good case on the merits of his application in the main.  Prospects of success are critical in determining such applications.  In African Star Diamonds (Pvt) Ltd v Nyamuchanja & Ors HH 313-17 at page 4, the court said;

“The considerations that pertain to applications for rescission of default judgment should apply.  What is the point of dismissing an application in terms of Rule 236 when it is clear that the main matter is doomed to fail.”

It is trite that in addition to a reasonable and acceptable explanation for the failure to comply with the rules, one must also show reasonable prospects of success.  See Makaruse v Hide and Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) at page 65 D-F.

As regards costs it was submitted that this is a case in which exceptional circumstances exist warranting an award of costs on a punitive scale as shown in the respondent’s conduct and “lack of candour.”  Applicants, it was submitted have unnecessarily been put out of pocket by filing the present application and ought to be reimbursed of their costs at the higher scale.

In conclusion, applicants argued that they have made a case for this application to be granted as respondent not only failed to proffer a reasonable explanation for his delay, but also failed to show that he has prospects of success on the merits of the main matter in addition to not disputing the granting of this substantial application.

The application was opposed by the respondent on the following grounds;

(a)	There was never an intention to abandon the main matter.

(b)	Respondent was incapacitated by the outbreak of Covid 19 pandemic which caused his legal practitioner to close offices on 24 March 2020 and re-opened on 20 May 2020.

(c)	This explanation has been confirmed by the legal practitioner who was seized with the matter.  See record pages 21-23.

(d)	The explanation given by the respondent’s is reasonable – see Pasi and Anor v Stalap Investments (Pvt) Ltd and 4 Others HH 271-18; HC 616/18.

(e)	The respondent has good prospects of success and therefore a bona fide case in that he intends to argue in the main matter that the sale was conducted outside the law governing sales in execution.

(f)	The actions by the respondent clearly point to the intention to pursue the matter in that Answering Affidavits were filed, the matter was consolidated, heads of argument were filed and application was made for hearing dates.  A date has already been set for the hearing.  The court is therefore urged to consider these facts favourably – See Shanje v Murehwa & 3 Ors HH 218-18 and Ngwerume v Masawi & Anor HH 69-18

(g)	The applicant has failed to make a case for the relief sought and it ought to be dismissed for lack of merit.

THE LAW

Rule 236 (3) (b) states that:-

“(1)	 ......

(2)	where the respondent has filed a notice of opposition and an opposing affidavit  and the applicant has filed any answering affidavit he may wish to file, the applicant and may set the matter down for hearing in terms of Rule 223.

(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.”

This rule is so clear that it should not present any difficulties in interpreting it.  It can be synthesised thus;

(a)	The court has a wide discretion to exercise.

(b)	the court may order the matter dismissed with costs or

(c)	the court may make such other order on such terms as the judge thinks fit.

What then is the intention of the law-giver in crafting such a rule?  CHINHENGO J in Scotfin v Mtetwa 2001 (1) ZLR 249 at 250 D-E put it thus;

“The rule was deliberately designed to ensure that the court may dismiss an application if the principal litigant does not prosecute the case with due expedition.  The rule gives the Judge a discretion either to dismiss the matter or to make such other order as he may consider to be appropriate in the circumstances.  ... The primary intention of the law maker as I have stated to be, is to ensure that matters brought to the court are dealt with, with due expedition.  The order in which the Judge may issue, if it is one of dismissal, is in effect a default judgment.  But in considering the application the Judge can only make an order other than a dismissal if the respondent has opposed the application and shown good cause why the application should not be dismissed.”

See also Zambenyika Gwasura v Maxwell Matswimbo Sibanda & 3 Ors HH 298-17

It is trite that 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 simple to explain the delay.  The conduct of the respondent is also paramount.  The court has to consider all relevant and surrounding circumstances of the case.  The court must examine the period of the delay, complained against the reasons and the explanation for it.  It must also consider the prejudice if any caused to the other party.

In the Karengwa case supra, the court stated that;

“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 Sibongile Ndlovu v Guardforce Investments (Pvt0 Ltd HB 3-14 the court inter alia stated ;

“In casu, and in my view, after considering the circumstances of this matter particularly that the respondents have since filed their answering affidavit, heads of argument and applied for set down which caused both applications to be set down at almost the same time before different Judges,  it is clear that the respondents intended to prosecute their case.  The respondents merely delayed to file their answering affidavit and heads of argument.  There was no utter disregard of the rules of court.  The reasons for the delay are reasonable.  This is not a case where the respondents did nothing at all until the application for dismissal was made.  While the court accepts that indeed the time limits were not met, Rule 236 is not mandatory.  It gives the court a discretion which must be exercised in the interest of justice and finality to litigation...  This court therefore, after considering the circumstances of the case, the reasons for the delay, and the fact that both applications are ready for argument at almost the same time, decided to order that the application for dismissal for want of prosecution be dismissed and that the main matter be heard on the merits.”

As regards inaction by a party’s legal practitioner, the courts have insisted that at the very least the party to blame must file an affidavit admitting fault.  This scenario occurred in the Pasi case supra.  The court remarked;

“According to Lovemore Madzinga’s opposing affidavit, representing the 1st and second respondents on 21 December a supporting affidavit was served on its legal representatives.  The legal representatives’ law firm was closed from midday on the 21st of December to the 3rd of January 2018.  The legal practitioner dealing with the matter was on leave.  To that extent the inaction was not an abandonment of the litigation.”

It is trite that where blame for inaction is attributed to the legal practitioner, the so blamed party should file an affidavit confirming the position or admitting fault – Diocesan Trustees Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267.

In this case, the explanation by the 1st and second respondents’ representatives is that the office was closed.  No business was taking place at the law firm of their legal representatives offices.  I did not hear Mr Mpofu to contradict this fact.  He in fact noted that the legal practitioner should have filed an affidavit.  In my view the fact of the closing of the offices is not intrinsic to the legal practitioner.  It is evident to anyone especially the clients who happen to be respondents. This is different from a situation where the explanation for inaction is privy to the legal practitioner only.  I accept that the explanation by Lovemore Mudzinga is valid for the purposes of this case.

In Shanje v Murehwa & 3 Ors HH-218-18 the court approached the question of an application for dismissal as follows:

“…  In any event I see no logic or reason in dealing with dismissal of the application for review of a matter whose pleadings are at most closed and awaiting a hearing date.  Whereas it is important that there be finality to litigation the court in exercise of its discretion should not lose sight of the central aspect of ensuring that the interest of the administration of justice is met.” (my emphasis)

Applying the legal principles to the facts of this matter, I come to the following conclusions

Given the undeniable Covid 19 pandemic and the Chief Justice’s Practice Directions coupled with the fact that respondent’s legal representative’s law firm was closed during that period, the respondent’s explanation is honest, reasonable and valid.

The fact that respondent’s legal representative filed an affidavit confirming the closure strengthens respondent’s case.

The respondent’s previous bad conduct while relevant is not decisive in this matter.

The respondent has demonstrated that he has taken steps to bring the matter to finality in that answering affidavits were filed, the matter was consolidated, heads of argument were filed and the case has been set down for hearing.

The respondent did not consent to the application by admitting that he was out of time for this is not the only requirement for the grant of such an application.

On the merits respondent has a bona fide case in seeking to ventilate the lawfulness of the sale of his property in execution.  It is desirable in the interests of justice that these cases be determined once and for all on their merits.  This will definitely promote the interests of the administration of justice by ensuring that courts are not unnecessarily clogged by a multiplicity of cases mushrooming from a single action.

The respondent’s failure to act is not as a result of utter disregard of the court’s rules and prescribed time limits.

The respondent has offered to pay applicant’s costs of suit at the ordinary scale.

In the circumstances, I make the following order:

The application for dismissal of an application for want of prosecution be and is hereby dismissed.

The respondent be and is hereby ordered to pay applicant’s costs of suit.

Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

M. Chasakara Law Firm c/o R. Petkar Law Firm, respondent’s legal practitioners