Hothfield Enterprises (Private) Limited and Tony Renato Sarp v Triangle Limited and Tungamirai Rukatya and TIV Estate and CBZ Bank Limited

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                                                                                   HCH 9202/17
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HOTHFIELD ENTERPRISES (PRIVATE) LIMITED (1)

and

TONY RENATO SARPO (2)

and

TRIANGLE LIMITED (1)

and

TUNGAMIRAI RUKATYA (2)

and

TIV ESTATE (3)

and

CBZ BANK LIMITED (4)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE; 6, 25 June & 3 July 2025.

Interlocutory application for postponement of trial

T. S. T. Dzvetero with him T. Dzvetero, for the plaintiffs

R. Magundani, for the 1st defendant

M. Moyo, for the 2nd & 3rd defendants

No appearance for the 4th defendant

DEMBURE J:

1.	On 25 June 2025, the court issued an ex tempore judgment, the operative part of which was that the first to third defendants’ application for postponement of the trial was dismissed with costs. The court further ordered that the Registrar shall set down the matter for the commencement of the trial. What follows herein are the full reasons for the court’s decision.

2.	This is an interlocutory application for the postponement of the trial. The application was made orally by the first, second and third defendants. The defendants sought an order for the postponement of the trial sine die.

FACTUAL BACKGROUND

3.	On 4 October 2017, the plaintiffs instituted an action against the defendants for:

“1.	An order declaring the 1st to 3rd Defendants’ creation of grower number 346 in the name of the TIV Estate and/or to the benefit of the 2nd and 3rd defendants and the subsequent payments of funds and proceeds into that account to have been unlawful, null and void.

2.	An order declaring the creation of grower number 346 in the name of TIV Rukatya Estate to have been intended to be and or resulted in an unlawful diversion of proceeds and revenue due to grower number 591 and or 1st Plaintiff.

3.	Judgment against 1st to 3rd Defendants jointly and severally one paying the other to be absolved in the sum of US$1,499,353.96 into grower number 591 or to the Plaintiffs being reimbursement for funds and proceeds unlawfully paid into the said grower number 346 and to the benefit of 2nd to 3rd Defendants instead of grower number 591 and or to the benefit of 1st Plaintiff.

4.	An order directing the 1st Defendant to direct all other proceeds from the month of July 2017 to the date of the judgment into Grower number 591 and/or the 1st Plaintiff.

5.	Costs of suit.”

4.	The first to third defendants defended the action. It is common cause that the defendants raised a special plea of prescription, which was dismissed by this court. Their appeal against that decision was dismissed by the Supreme Court. This paved the way for the trial on the merits. The record was subsequently placed before me for trial on the merits.

5.	On 6 May 2025, the matter was set down for trial. At that hearing, the first defendant was in default. The plaintiffs advised the court that they intended to apply for amendment of their summons and declaration. Likewise, the second and third defendants also indicated that they intended to apply for an amendment of their plea. The court issued a case management order that:

“1.	Trial is hereby stayed pending the determination of the plaintiffs’ and 2nd and 3rd defendants’ applications for amendment of their respective pleadings.

2. 	The plaintiffs shall file their application for amendment of the summons and declaration by Friday, 9 May 2025.

3.	The 2nd and 3rd defendants shall file their opposing papers together with their application for amendment of the plea by Friday, 16 May 2025.

4.	The plaintiffs shall file an answering affidavit, if necessary, together with the opposing papers to the defendants’ application for amendment by Friday, 23 May 2025.

5.	The 2nd and 3rd defendants shall file their answering affidavits, if any, by Friday, 30 May 2025.

6.	The applications shall be heard on Thursday, 5 June 2025 at 2:30 pm.”

6.	On 5 June 2025, the hearing was deferred by consent to 6 June 2025. The reason was that the plaintiffs’ legal practitioners wanted more time to consider the second and third defendants’ heads of argument.

7.	On 6 June 2025, the first defendant, which was in default on 6 May 2025, applied for the removal of bar. The application was granted with the consent of the plaintiffs with costs. The plaintiffs subsequently withdrew their application for amendment of pleadings with the second and third defendants’ consent. The court proceeded to strike the application off the roll with an order for the plaintiffs to pay the second and third respondents’ costs.

8.	I indicated that since the interlocutory application had been disposed of, the court will now proceed with the trial. Mr Moyo, counsel for the second and third defendants, indicated that they filed a separate application for amendment of their plea in Case number HCH 2298/25. The court queried that in terms of para 3 of the case management order of 6 May 2025, the application for the amendment of the plea by the second and third defendants was supposed to be filed together with their notice of opposition to the application for amendment of the plaintiffs’ pleadings. Their failure to comply with the order meant that the application was not before me and could not, in anyway, be properly before the court. This prompted the second and third respondents to make this application for the postponement of the trial. The first respondent’s counsel also entered the fray and sought the postponement of the trial to file its own application for amendment of its plea. I allowed the defendants to motivate their oral application for postponement. The hearing of the application was held on 6 and 25 June 2025.

APPLICATION FOR A POSTPONEMENT

FIRST TO THIRD DEFENDANTS’ SUBMISSIONS

9.	Mr Moyo, counsel for the second and third defendants, submitted that the matter must be postponed sine die or removed from the roll to allow the second and third defendants to liaise with the Registrar so that the application for amendment of their plea can be referred to a judge for determination. When the court queried how an application filed in violation of the court order of 6 May 2025 could still be pursued separately from the present proceedings, Mr Moyo further submitted that they could instead file a fresh application for amendment of their plea. The amendment sought is to plead a special plea of lack of locus standi.

10.	Ms Magundani, counsel for the first defendant, also sought the postponement of the matter sine die. She submitted that the first defendant wanted to apply for amendment of its plea. I hasten to state that the defendants did not address the court on the requirements which must be satisfied in an application for a postponement. Their main submissions were very brief as stated above.

PLAINTIFFS’ SUBMISSIONS

11.	Mr Dzvetero, for the plaintiffs, submitted that the plaintiffs are opposed to the application for postponement. The issue is about prejudice. This matter has been outstanding for more than eight years. There is prejudice that would be suffered by the plaintiffs to wait for the determination of a non-compliant application. There is no basis for the proceedings to be stayed as the opportunity was granted on 6 May 2025 and not complied with. It is not only the application that is non-compliant with the order, but one which is doomed. It has no reasonable prospects of success. It was not properly filed in terms of the court order. It is non-compliant and will be struck off the roll. There is no chance of that application being successful on the merits.

12.	Counsel further argued that the application seeks to amend a plea by innovating or creating a totally different and out-of-time plea of locus standi. The exchanges that the court had with the defendants exposed the inherent defects of that application. It seeks to introduce a new defence of locus standi. It does not seek to clarify any issues. It is a special plea in bar and is distinct from other pleas which relate to defences on the merits. It has its own special process and procedures through which it can be raised. It requires the court to sit and determine it separately. It is not an amendment. It is a new plea. It is reopening the matter. A special plea in bar was raised in terms of the rules and was determined. An appeal was lodged, and the defendants lost the appeal. There is nothing to amend. The trial within a trial was raised and put to rest. That application under HCH 2298/25 is hopeless, and issues relating to a special plea have been determined. The matter must proceed on the merits.

13.	Mr Dzvetero further argued that counsel for the second and third defendants did not move the court to make the application for amendment itself. He has taken to leave the application under HCH 2298/25 as alive. If they proceed with it, it will invite the order for costs on a higher scale. The court must peep into that application. The application for postponement must be dismissed with costs on a higher scale. It is meant to delay the trial. They did not say why the application had not been made since 2017. They cannot seek to amend their pleas eight years later. The application for postponement is not there for the liking.

14.	He further submitted that the first defendant had filed its opposing affidavit. It did not apply for an amendment. That request for postponement is not taken with a bona fide intention of seeking an amendment, but to delay. The first defendant had not indicated that there are instructions to amend a plea in so far as the first defendant is concerned. No notice was given and the application cannot be made to amend without a notice of the amendment.

FIRST TO THIRD DEFENDANTS’ REPLYING SUBMISSIONS

15.	Mr Moyo, in his reply, submitted that the court has been addressed on the prospects of success of the application for amendment of the special plea and the court is entitled to have a look at its records. If the court has regard to the record HCH 2298/25, the point to be raised is that the plaintiff does not have the locus standi. The claim is premised on the farming operations in terms of lease agreements and joint ventures. The defendant raised the issue that the farms in question were acquired by the State. He also submitted that they had provided a deed of transfer which talks of the endorsement and the notice of the gazette. A party cannot be allowed to recover revenue on land owned by the state. There is an admission that the land was acquired by the state.

16.	He further argued that the plaintiffs are committing an offence. See the cases of Commercial Farmers Union & Ors v Minister of Lands and Rural Resettlement & Ors SC31/10 and Chikutu & Ors v Minister of Lands, Agriculture, Climate and Rural Resettlement & Ors CCZ 03/23. It was submitted that the point made in those authorities is that where land is acquired by the state, the person must cease to occupy the land and move out within ninety days, or they contravene the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The plaintiffs had ninety days to leave the land in terms of the law. For one to occupy the land, the person must have the lawful authority in the form of a lease, an offer letter, or a land permit. The contemplated application has prospects of success. The court must enforce the law and cannot aid the plaintiffs in breaching the law. The defendants are seeking an opportunity to raise the special plea.

17. 	Mr Moyo also submitted that the law on postponement is clear that if a genuine reason is raised, the parties must be granted the indulgence. Once a fact is admitted, there is no need to lead evidence in respect of an admitted fact. See Mining Industry Pension Fund v Dub Marketing (Pvt) Ltd SC 25/12. Once leave is granted, there is no need for a trial. There is no prejudice in respect of that. The court cannot be functus officio on an issue it has never determined or an issue which is not before it. An application for condonation can be made together with the application for leave to amend pleadings. See Zimbabwe Anti-Corruption Commission v Mangwiro SC 11/12. To the extent that the land has been acquired, the plaintiffs have no authority. Those agreements would have been illegal as they relate to the state land. The failure to file an application is not to be blamed on the litigant. The genuine issue is that the defendants intended to make the application. He also argued that the postponement must be allowed to ensure that the defendants place their application before the court.

18.	I pause to state that the defendants chose to make substantive submissions in reply. Even in written application proceedings, a litigant cannot defer pleading on the essential elements of his application to the answering affidavit. All essential averments setting out the applicant’s case must be made in the founding affidavit. With respect to an oral application, they ought to be made in the main address and not left to the reply stage.

19.	Ms Magundani submitted that she did not have any submissions to make save to support the submissions advanced by the second and third defendants.

20.	After Mr Moyo sat down, Mr Dzvetero rose up and advised that to correct the record, the application for amendment filed in Case No HCH 2298/25 was withdrawn. Mr Moyo then sought to clarify that the application had been withdrawn as it was improperly filed. He further stated that the application is now that the postponement is sought to properly file a court application for amendment of the defendants’ plea. He also submitted that the court is entitled to have regard to its records.

ISSUE FOR DETERMINATION

21.	The sole question the court has to determine is whether there is good cause for the postponement of the trial.

THE LAW

22.	The settled principle of the law is that an application for a postponement of a matter set down for hearing is one for an indulgence, the grant of which is a matter within the discretion of the court. It is, therefore, not a right obtainable on demand. The applicant must show good cause for such relief to be granted. The court exercises its discretion judicially by considering well-established factors. In Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33/15, the court enunciated that:

“An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge or court before which it is made.  The applicant must therefore show that there is good cause for the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought. In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), Schultz Ja remarked:

“A party opposing an application to postpone has a procedural right that the appeal should proceed on the appointed day. It is also in the public interest that there should be an end to litigation. Accordingly, in order for an application for a postponement to succeed he must show a 'good and strong reason' for the grant of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T) at 320C-321B. The more detailed principles governing the grant and refusal of postponements have recently been summarised by the Constitutional Court in National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112C-F as follows:

“The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court. Such postponement will not be granted unless this court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Whether a postponement will be granted is therefore in the discretion of the court and cannot be secured by mere agreement between the parties. In exercising that discretion, this court will take into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.” (my emphasis)

23.	The law was restated in Stonewell Searches (Pvt) Ltd v Stone Holdings (Pvt) Ltd & Ors SC 22/21, where the court stated that:

“In exercising the discretion to postpone a matter, several factors have to be considered cumulatively. In Persadh v General Motors SA (Pty) Ltd 2006 (1) SA 455 (SE) para 13, the court succinctly set out the applicable legal principles when a party applies for a postponement, as follows:

“First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.” (my emphasis)

EXAMINATION

24.	Applying the above principles, it is clear that an application for a postponement of a matter is not there for the mere asking. The court must be satisfied that it is in the interests of justice that the indulgence should be granted. In this case, the defendants appear to have adopted an erroneous stance that a postponement is simply there by mere request, as if it is a right that can be demanded from the court. A legal practitioner who adopts that approach does a disservice to his client. In their main address when motivating the application, both Mr Moyo and Ms Magundani virtually said nothing of substance in respect of satisfying the requirements of an application of this nature. They did not address any of the important factors which must be established for an application of this nature to succeed. They simply asked the court to postpone the matter sine die merely because they intended to apply for amendment of their pleas by pleading a special plea of lack of locus standi.

25.	Further, as for the second and third defendants, their counsel initially sought to pursue a non-compliant application for amendment, which was not filed as directed by the court on 6 May 2025. As the record would show, nothing of substance was submitted in their main address to trigger the exercise of the discretion in their favour by granting the indulgence sought. They only reacted and attempted to give an explanation for the postponement sought in their replying submissions in response to the submissions made for the plaintiffs.

26.	At first, Mr Moyo explained that he wanted the opportunity to have the application for amendment filed under Case No. HCH 2298/25 referred to a judge for determination. It is common cause that on 6 May 2025, in particular, in terms of para 2 of the case management order, the court ordered that the second and third defendants must file their notice of opposition to the plaintiffs’ application for amendment together with their application for amendment of their plea. It is not in dispute that they only filed a notice of opposition in the record before me. I was advised at the hearing on 6 June 2025 that they had filed a separate application in Case No. HCH 2298/25. It is clear that the said application was filed in violation of the court order, which required it to be filed together with their notice of opposition. The application would, in that case, be fatally defective or a nullity. The matter could not, therefore, be postponed pending the determination of a non-compliant application or one that is a nullity.

27.	After the court queried the rationality of postponing the trial pending the determination of an invalid application, Mr Moyo then sought to submit that he would file a fresh application for amendment. I was only alerted by Mr Dzvetero that the application filed under HCH 2298/25 had been withdrawn well after Mr Moyo had finished addressing the court. There was, therefore, no full and satisfactory explanation for the postponement. Further, the second and third defendants were allowed to present their application before me, but squandered the chance. They cannot blame anyone but themselves.

28.	In any case, the intended application for amendment of defendants’ pleas is simply meant to delay the trial. There is no reasonable explanation why the amendment is sought now, after their pleas were filed in 2017, close to eight years ago. It is common cause that the defendants raised a special plea of prescription, which was determined. The special plea was dismissed, and their appeal against this court’s decision thereof was also dismissed. This means that the trial would now proceed on the merits. The attempts, therefore, belatedly to seek a postponement to file an application for amendment of the pleas was in my view, given the circumstances, a delaying tactic.

29.	In any event, an amendment cannot purportedly be sought now to plead a new special plea after the court has already determined the special defences which were placed before it. If the court would permit the defendants to plead in instalments, such a circle would surely prevent the finalisation of disputes. The defendant is expected to raise his special defences at once. The provisions of rule 139(1) of the High Court Rules, 1971, which were applicable at the time the special pleas were filed in 2017, were also peremptory that all the special pleas had to be filed at one time. The application would, therefore, not have good prospects of success. The alleged acquisition of the farms in question was not presented as an issue that had suddenly been discovered. From Mr Moyo’s submissions, the defendants had knowledge of that fact and there was no reason given why the application was intended to be made now. While in terms of rule 41(10) of the High Court Rules, 2021 an application for amendment may be made at any stage of the proceedings before judgment, the law requires that the applicant explain why the amendment is sought and if there is a delay in seeking the amendment, there must be a reasonable explanation for the delay. See Cheney v Cheney HH 78/18.

30.	The intended amendment is also meant to introduce a completely new defence and not to clarify any issues or ensure the determination of the real question in dispute. The defendants argue that they intend to plead a special plea of lack of locus standi founded on the averments that the farms subject to the joint venture agreements and leases were acquired by the state. This is a completely new defence which would alter the issues for trial. This would be at odds with the law on amendment of pleadings. See Kenmark Builders (Pvt) Ltd v Gildlestone & Anor 2019 (1) ZLR 658 (H) supra, at p 662 B-C, where the court stated that:

“The amendment sought should not have the effect of altering the real issues between the parties. The court has no power to allow an amendment that has the effect of introducing a new cause of action. An amendment to pleadings will be permitted only if it does not introduce a new cause of action, seek to alter the nature of the suit or cause of action or alters the foundation or character of the case. What determines the character of a suit is its foundation or cause of action and not the relief sought. If this course were to be permitted, the other party would require to be given an opportunity to rebut the new cause of action, resulting in a different trial.”

See also Stanbic Bank Zimbabwe Limited v Thalgy Investments (Private) Limited HH 311/23.

31.	I, therefore, failed to perceive the prospects of success of the intended application. Mr Moyo did not directly and fully canvass the prospects of success of the application for amendment. He instead extensively made submissions on the prospects of the special plea itself. In any case, the submissions of substance thereto were only made in the replying submissions. There was no opportunity for the plaintiffs to reply. The applicant’s case is not made in replying submissions. The same position obtains in a written application. Thus, in Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs & Ors CCZ 14/20 at p 8, Hlatshwayo Jcc had this to say:

“It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed (hereinafter ‘Herbstein &Van Winsen or the Authors’) p 80 where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

32.	The above reasoning applies with full force in respect of an oral application. The defendants who clearly made a skeleton case in their main address could not seek to fortify their case in reply. The submissions were, in fact, largely centred on the merits of the special plea of lack of locus standi that they alleged they intend to raise and not the prospects of the application for amendment and the rational grounds that it could not be said to be hopeless.

33.	There is no doubt that the matter has been pending for quite a considerable length of time, now close to about eight years. It is in the interests of justice that there should be finality in litigation. I agree with Mr Dzvetero that the plaintiffs, who initiated the suit, would in that regard be prejudiced by any further postponement of the trial. The defendants had their chance to raise any defences they wished and a lot of time to seek to amend their pleadings. They did not. They only sprang into action because the matter was set down for trial. Again, on 6 May 2025, the second and third defendants specifically were given a further chance to seek to amend their pleadings, but they failed to seize the opportunity. The first defendant, even before the trial, had ample time to do so, but it did not take any action. The principle “vigilantibus non dormientibus jura subveniunt” (the law helps the vigilant, not the sluggard) would apply. See Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290C-E.

34.	The defendants did not address the issue of prejudice suffered by the other party if the postponement is granted, which is one of the factors the court considers. It appeared as if they considered themselves the only parties whose interests the court should consider. There was no attempt to address the court on the balance of convenience thereof and the convenience of the court. Further, as stated in Stonewell Searches, the party responsible for a postponement must pay the wasted costs. There was no tender of wasted costs made by the defendants. The application, accordingly, fell short of the requirements of an application of this nature and could only be dismissed. It is trite that an application falling short of the requirements ought to be dismissed. Thus, Makoni Ja in Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd & Ors SC 64/23, at para 32, had this to say:

“The application, falling short of the requirements of an application, such as the present one, ought to be dismissed. Allowing the matter to proceed to the merits would be a waste of valuable judicial resources which should be directed to worthy causes.”

35.	While Mr Dzvetero sought punitive costs for the dismissal of the application for a postponement, I did not find any exceptional circumstances warranting such an order of costs. There was no reason for me to depart from the general rule that costs shall follow the cause. Costs on the ordinary scale would meet the justices of the case. The application was only interlocutory, and it could not be taken as an abuse of court process.

DISPOSITION

36.	There was no good cause shown for the postponement sought. The application fell short of the requirements for an application of this nature. The court could not, therefore, grant the indulgence. It was not in the interests of justice to postpone the trial. There is need for finality in litigation.

37.	In the circumstances, the court entered the judgment as aforestated.

Dembure J:  ………………………………………………

Antonio & Dzvetero, plaintiffs’ legal practitioners

Scanlen & Holderness, 1st defendant’s legal practitioners

Dube-Banda Nzarayapenga & Partners, 2nd & 3rd defendants’ legal practitioners