The applicants issued summons against the respondent on 23 July 2015. The respondent entered appearance to defend and filed an exception to the applicants' claims on 9 September 2015. The respondent filed and served its Heads of Argument on 23 September 2015. The applicants filed their Heads on 10 November 2015, whereas Rule 238(2a) of the High Court Rules required them to file within ten working days of receipt of the respondent's Heads (by 7 October 2015). When the exception was set down for hearing on 17 March 2016, the respondent objected that the applicants' Heads were filed out of time. Tagu J postponed the hearing and ordered the applicants to apply for condonation of late filing. The applicants' legal practitioners had misinterpreted the judgment in Union Metallurgical & Technical Services v Sithole & Anor 2005 (1) ZLR 404 (H), believing it supported their position that Heads should be filed within ten days of the matter being set down for hearing, rather than within ten days of receiving the opposing party's Heads.
The application for condonation was granted. The applicants were ordered to pay the costs of the application.
In opposed applications, Rule 238(2a) of the High Court Rules 1971 requires the respondent's legal practitioner to file Heads of Argument within ten working days of receiving the applicant's/excipient's Heads, not within ten days of the matter being set down for hearing. The Union Metallurgical case applies to unopposed applications under Rule 223(1), not opposed applications under Rule 223(2). When considering condonation for late filing, courts must consider: (1) the degree of non-compliance; (2) the explanation for the delay; (3) prospects of success on the merits; (4) the respondent's interest in finality; (5) convenience of the court; and (6) avoidance of unnecessary delay in the administration of justice. A genuine misinterpretation of the law by legal practitioners, while regrettable, can constitute a reasonable explanation for delay where it is neither willful nor mala fide.
Mangota J made significant observations about professional conduct of legal practitioners. He noted that legal practitioners are officers of the court whose primary duty is to the court, though they must protect their clients' interests. They should not "descend into the arena" and must separate issues relating to themselves as professionals from those pertaining to their clients. Professional ethics require them to treat each other with dignity and decorum befitting their profession and status as officers of the court. They are "a college of learned friends" and must conduct themselves accordingly at all times. The judge also observed on the fallibility of the human mind, noting that legal practitioners are not ignorant of the law but fallible like all persons. He stated: "The mind of a person is, by design, fallible. It sees things as real which are not such." This fallibility is why justice systems include corrective mechanisms such as reviews and appeals. The judge expressed disquiet that the applicants' legal practitioners did not take the trouble to read the relevant court rule alongside the case they relied upon, noting they "took an unnecessary detour" that inconvenienced both the court and the respondent and put the latter to unnecessary expense.
This case clarifies the distinction between Rule 223(1) and Rule 223(2) of the High Court Rules 1971, particularly regarding the filing of Heads of Argument in opposed versus unopposed applications. It emphasizes that Rule 238(2a) requires the responding party to file Heads within ten working days of receiving the opposing party's Heads, not within ten days of the matter being set down for hearing. The case provides guidance on the application of condonation principles in Zimbabwe, following the factors set out in GMB v Muchero, and confirms that a delay of 23 working days is not necessarily inordinate where there is a reasonable (even if mistaken) explanation. The judgment also contains important obiter dicta on the professional conduct expected of legal practitioners as officers of the court.