Alshams Global BVI Limited v Registrar of Deeds N.O. and Equity Properties (Pvt) Ltd

This was an opposed application initially filed as an urgent matter (though urgency was not upheld). On 4 February 2022, Tsanga J issued an order directing the applicant to file Heads of Argument by 16 February 2022 and the second respondent to file its Heads by 2 March 2022, with the matter set down for hearing on 28 March 2022. The applicant filed its Heads on 10 March 2022 (late) and the second respondent filed its Heads on 28 March 2022 (also late). Both parties thus failed to comply with the court's order. The second respondent's previous counsel (Mr Magwaliba) and the applicant had allegedly agreed between themselves to different timelines, contrary to the court order. When the matter came before Mangota J on 20 June 2022, the second respondent raised two preliminary points: (i) that the applicant was barred for filing Heads late and should not be heard until condoned and the bar was uplifted; and (ii) that the current application should be stayed pending consolidation of related matters.

• Whether parties to litigation can vary or sideline an extant court order by agreement between themselves without court involvement
• Whether both parties were barred from being heard for failing to comply with court directions regarding filing of Heads of Argument
• Whether non-compliance with timelines in a court order renders an application fatally defective
• Whether the court can hear an application where both parties have failed to comply with procedural court orders

The application was struck off the roll. Each party was ordered to meet its own costs. Both parties were directed to apply for condonation of late filing of Heads of Argument and upliftment of the bar operating against each of them.

An order of court is binding, sacrosanct, and immutable. It cannot be varied or sidelined by parties through agreement between themselves without the involvement and approval of the court that made the order. Parties who wish to vary a court order must approach the court and move it to vary its own order. Where parties act outside the terms of an extant court order, they act in contempt of court. Where both parties to litigation fail to comply with a court order prescribing timelines for filing procedural documents (such as Heads of Argument), both parties are barred and their papers are improperly before the court, rendering the application incurably defective. In such circumstances, neither party can be heard until proper applications for condonation and upliftment of the bar are made and granted. Legal practitioners, as officers of the court, are presumed to know the law and are expected to comply with court orders; their failure to do so cannot be excused on the basis of inter partes agreements that contradict court directions.

Mangota J observed that had the bar not been operational against both parties, the second respondent's application for stay pending consolidation would not have succeeded in any event. The court noted that a matter initially enrolled on the basis of urgency (even though urgency was ultimately not upheld) could not be stayed pending consolidation of related matters. The court also made obiter comments on how the second respondent could have complied with the order despite awaiting the applicant's Heads - by filing main Heads by the deadline and supplementary Heads thereafter if necessary to respond to points raised in the applicant's Heads. The judgment contains strong obiter statements about the importance of court orders maintaining their meaning and effect, warning that allowing parties to vary orders without court involvement would 'spell disaster for the court and them.'

This case reinforces the fundamental principle in Zimbabwean civil procedure that court orders are sacrosanct and cannot be varied by agreement between parties or their legal practitioners without court sanction. It serves as a strong warning to legal practitioners about the consequences of non-compliance with court directions, even where there is alleged agreement between opposing counsel. The judgment emphasizes that legal practitioners, as officers of the court, are held to a higher standard and are presumed to know and comply with the law. The case illustrates that where both parties are in breach of procedural requirements, the court will not favor one over the other but will strike the matter from the roll, requiring proper applications for condonation. It underscores the importance of strict compliance with High Court Rules and court orders in Zimbabwean litigation practice.