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Judgment No. HB 56/15
Case No. HC 333/14 (A)
Xref No. HC 2718/13, 270/13,
HC 1805/10, 480/11 & 1716/12
GLADYS KARENGWA
versus
ALBERT MPOFU
HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 2 MARCH AND 19 MARCH 2015
Opposed application
Mr J. Tshuma for the applicant
Mrs S. Mpofu for the respondent (in person)
MAKONESE J: This is a Chamber application for dismissal of respondent’s application in case number HC 2718/13. The application has been initiated in terms of Order 32 Rule 236 (3) (b) on the grounds that respondent has failed to file an answering affidavit or heads of argument within the time stipulated by the rules.
The parties appeared before me on 2 March 2015. The respondent was in default. His wife attended the proceedings and indicated that her husband was not well and in hospital. I pointed out that the respondent had on numerous occasions failed to attend court and deliberately sent his wife to court, causing delays in the finalization of this matter. The respondent’s wife who appeared to be well acquainted with the details of the matter put up an argument in response to the application before the court. I granted the application prayed for and indicated that my reasons would follow. These are my reasons.
Background
The dispute in this matter revolves around the right, title and interest in a property known as stand 5671 Mkhosana Township, Victoria Falls. Applicant and respondent both claim that they own the right, title and interest in the same property. On 10 September 2010, respondent filed a court application under case number HC 1805/10 claiming, inter alia the transfer of right, title and interest over stand 5671 Mkhosana Township, Victoria Falls into his names. That court application was improperly served and the applicant did not become aware of its contents until a later date. Meanwhile, respondent’s legal practitioners had set the matter down on the unopposed roll and obtained a default judgment against the applicant. Subsequently, and upon becoming aware of the application and the order obtained in default, applicant filed an application for rescission of judgment under case number HC 480/11. That application for rescission of judgment was opposed by the respondent, who failed or neglected to file his heads of argument timeously. Pursuant to an order of this court, the matter was set down on the unopposed roll and an order for rescission of judgment was granted in default. The default judgment granted to the respondent under case number HC 1805/10 having been rescinded, the applicant was required to file fresh opposing papers in case number HC 1805/10 within five days of the granting of the order. The applicant complied and filed such papers on 16 October 2012. Following the service of the applicant’s opposing papers upon him, the respondent failed to file an answering affidavit and failed to set the matter down despite being called upon to do so. Consequently, applicant made an application in terms of Order 32 Rule 236 (3) (b); to have the applicant’s application in case number 1805/10 dismissed with costs. The respondent failed to oppose that application and on 21 February 2013, this court granted an order dismissing the claim.
The respondent then made another application for rescission of the order dismissing his application under case number HC 2817/13. Once again the respondent failed to file an answering affidavit or set the matter down for hearing. This has led the applicant to launch this application for dismissal for want of prosecution. Order 32 rule 236 (3) as amended by Statutory Instrument 80 of 2000 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-
- set the matter down for hearing in terms of rule 233; 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 terms as he thinks fit.”
The applicant has elected to make this application for dismissal for want of prosecution.
These courts have adopted a very strict approach in matters where an applicant has failed to file his answering affidavit or set the matter down for hearing. 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 the case of Moon v Moon HB 94/05. In the case of Ndlovu v Chigaazira HB 104/05, the learned judge indicated that the reason why Rule 236 had to be enforced is to ensure that finality is brought to legal proceedings.
The circumstances of this matter clearly show that the respondent has a tendency to institute actions without pursuing them to their conclusion. The respondent has failed to file the necessary documents on three separate occasions. The respondent’s conduct is merely dilatory and he is well aware that delaying the matter may be in his best interests. He has no intention of prosecuting his actions to completion.
I note that in his opposing papers the respondent has not tendered any reasonable explanation as to why he delayed in the filing of his answering affidavit or why he has failed to set the matter down for hearing. The respondent’s opposing papers do not assist him in anyway. Respondent cannot raise a defence that he is a self-actor and therefore ignorant of the provisions of the rules. The respondent elected to act as a self-actor in this matter. If a person elects to act as a self-actor, then he is bound by any procedural errors he may make in the prosecution of his claims. In any event respondent was legally represented in case number HC 2718/13 up to 21 January 2014 when his legal practitioners renounced urgency. At the time the respondent failed to file his answering affidavit or heads of argument he was still legally represented. Respondent’s legal practitioners ought to have complied with the rules. Given the history of the matter, the only reasonable inference is that respondent knowingly and deliberately refrained from setting the matter down or file an answering affidavit. By his own conduct, the respondent acquiesced to the dismissal of his application under case number HC 2718/13. There is need to bring matters to finality. The rules are designed to facilitate the resolution of disputes timeously. The respondent’s past conduct reflects that he has no intention of having a final resolution to the matter, presumably because he has physical possession of the property in dispute. The applicant has in my view established that the justice of the case demands that the application for dismissal for want of prosecution be granted.
On the issue of costs, the court is generally reluctant to awards costs on an attorney and client scale against a self-actor. In exceptional circumstances, however, where there is a clear abuse of court process the court is inclined, in such event, to order costs against a self-actor on a punitive scale. The awarding of costs is at the disrection of the court.
I would accordingly order as follows:
1. The Court Application For Rescission of Judgment under case number HC 2718/13 be and is hereby dismissed.
2. The respondent shall bear the costs of this application on an attorney and client scale.
Webb, Low and Barry, applicant’s legal practitioners
