Central Africa Building Society v Tinashe Able Chimanikire & 2 Ors

### Preamble
1
HH 470-18
HC 5038/18
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CENTRAL AFRICA BUILDING SOCIETY

versus

TINASHE ABLE CHIMANIKIRE

and

ARMINCO INVESTMENTS (PVT) LTD

and

THE SHERIFF OF THE HIGH COURT OF ZIMBABWE

and

TAWANDA JAKACHIRA

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 23 July 2018 & 8 August 2018

Chamber Application

Adv T Mpofu, for the applicant

1st respondent in person

No appearance for the 2nd respondent

No appearance for the 4th respondent

KWENDA J: This is a chamber application for the dismissal of the first and second respondents’ application in case No. HC 2702/18 for want of prosecution. The application is in terms of Order 32 r 236 (3) (b) of the High Court Rules, 1971.

Background

A certain immovable property belonging to second respondent was sold in execution to fourth respondent by private treaty for $230 000.00. The sale was pursuant to writ issued in case No. HC 9692/13. First and second respondents who are some of the judgment debtors in case No. HC 9692/13 objected to the sale. They undertook to bring before third respondent a purchaser with a higher offer. First respondent is a director of the second respondent. The property sold in execution does not belong to him. His involvement could be in a representative capacity only.

As at 12 March 2018, first and second respondents had failed to fulfill their undertaking to introduce someone with a better offer leading to the confirmation of fourth respondent as the highest bidder and purchaser. Aggrieved by third respondent’s decision, first and second respondents filed an application under Case No. 2702/18 for an order of this court setting aside the sale. The applicant opposed the application on 11 April 2018 and served respondents with the Notice of opposition on 12 April 2018. More than a month after service the first and second respondents had neither filed an answering affidavit nor set their application down.

On 31 May 2018, the applicant invoked the provisions of Order 32 rule 236 (3) (b) of the High Court rules opting to apply for the dismissal of first and second respondents’ application in case No. HC 2702/18 for want of prosecution. The other course open to the applicant was to set down the application for it to be decided on the merits. The chamber application was served on first and second respondents’ lawyers on 1 June 2018. The lawyers filed opposing papers in which they simply stated that they are pursuing the main application, repeating the merits of that application.

When the chamber application was placed before me I noticed that there was correspondence addressed to the lawyers representing first and second respondents, Farayi Nyamayaro Law Chambers, pointing out that they were required to address the issue of their clients’ failure to prosecute case No. HC2702/18 as opposed to ‘progressing’ that case.

Africa Star Diamonds (Pvt) Ltd v Muchanga HH 313/17

Melguard Trading (Pvt) Ltd v Chinyama & Partners HH 703/16

Farayi Nyamayaro Law Chambers did not respond to the correspondence. They also did not seek to regularize their clients’ papers. Accordingly, it is not disputed that first and second respondents have failed to prosecute case No. HC 2702/18 within the time frames set in the rules of this court and that first and second respondents have not explained their failure to comply with the rules.

I could have disposed with the matter forthwith in chambers. Rule 245 of the High Court Rules provides as follows:

“Where a chamber application is not accompanied by a certificate referred to in r 244, the registrar shall in the normal course of events, but without undue delay, submit it to the judge who shall consider the papers without undue delay.”

I however, considered the position revealed by the papers filed of record which is as

follows Applicant’s legal practitioner to Farayi Nyamayaro Law Chambers objecting to the manner in which they were approaching the matter, arguing that first and second respondents were barred from progressing case No HC 2702/18 and they must direct their response to the application for dismissal. Meanwhile Farayi Nyamayaro Law Chambers had filed heads of argument on 11 July 2018. I decided to invite both counsel to appear before me on 23 July 2018 to present further argument clarifying their respective positions. See r 246.

“246 Consideration of applications

(i)	A judge to who papers are submitted inn terms of r 244 or 245 may

(a)--

(b) require either party’s legal practitioner to appear before him to present such further argument as the judge may require.”

Advocate T Mpofu appeared for applicant. There was no appearance by Farayi Nyamayaro Law Chambers for first and second respondents. First respondent, who was present, requested me to stand down the matter. He later brought a legal practitioner who said he had been instructed by Farayi Nyamayaro Law Chambers to appear. The lawyer immediately confessed that he had no clue what the matter was about so he could not be of assistance to the judge. I drew his attention to the deficiency in the notice of opposition to which he responded maintaining that although he understood my concerns, he had no meaningful submissions to make since he had just been asked to stand in. Such conduct is very disrespectful. Counsel has no business appearing before a judge or the court if he/she has no idea what the case is about. I excused Advocate Mpofu without hearing him in the absence of proper representation for first and second respondents.

On the following day first respondent complained to Messrs Farayi Nyamayaro Law Chambers that they were not handling his matter properly and demanded that they should renounce agency so that he can engage other lawyers. The complaint was copied to the Registrar and is filed of record. Messrs Farayi Nyamayaro Law immediately renounced agency.

I am satisfied that second respondent as represented by first respondent is desirous of prosecuting case No. No HC 2702/18 but for tardiness by his legal practitioners. Dismissing their application for want of prosecution would be unduly harsh. Rule 236 (3) empowers a judge considering an application of this nature to either grant the dismissal sought or make any other order he/she deems fit. In the exercise of my discretion I will order first and second respondents to progress their application in case No. HC 2702/18 forthwith. Applicant has succeeded substantially and I will grant it costs of suit.

I order as follows

1st and 2nd respondents are ordered to take all steps and do all things necessary to set down case No. HC 2702/18 within ten (10) days of being served with this order.

In the event of failure by 1st and 2nd respondents to comply with clause (1) above the application in case No. HC 2702/18 shall be deemed abandoned.

1st and 2nd respondents shall pay applicants’ costs for this application on the ordinary scale, one paying the other to be absolved.

Gill, Godlonton & Gerrans, applicant’s legal practitioners