Antares Zimbabwe (Pvt) Ltd v Andrew Thompson Trust & Investment Company (Pvt) Ltd and Others

This was an application for the upliftment of a bar operating against the applicant in HC 5817/15. In the main action, following the upholding of the applicant's exception, the respondents filed an Amended Declaration. The court dismissed the applicant's special plea to refer the dispute to binding arbitration. The applicant sought leave to appeal this interlocutory decision. The applicant filed a second special plea on 12 October 2016 challenging jurisdiction and requested that the plea be set down for hearing. The respondents' legal practitioners disputed the nature and content of the special plea and threatened to bar the applicant. Despite correspondence from the applicant's legal practitioners stating that the notice to bar was improper, illegal, and unprocedural, the first respondent proceeded to bar the applicant on 27 October 2016 in terms of Order 12 Rule 81 of the High Court Rules, 1971. The applicant contended that the respondents should have awaited determination of the leave application and that the filing of further pleadings should be stayed pending the jurisdictional challenge. A stalemate arose between the parties' legal practitioners regarding the propriety of filing further pleadings during the pendency of the leave application.

• Whether the bar imposed against the applicant in HC 5817/15 should be uplifted
• Whether an application for leave to appeal an interlocutory decision automatically stays the entire action and prevents filing of further pleadings
• Whether the respondents' legal practitioners acted unreasonably in barring the applicant when a special plea had been filed
• Whether costs de bonis propriis should be awarded against the respondents' legal practitioners
• What is the proper procedure when parties' legal practitioners reach a stalemate regarding the next procedural step

The application for upliftment of the bar was granted with costs in favor of the applicant. However, the court clarified that the costs order should not be borne de bonis propriis (personally) by the respondents' legal practitioner, Mr Arnott, despite this having been inadvertently included in the initial order.

When parties' legal practitioners reach a genuine stalemate regarding the proper procedural step to be taken in litigation, the proper procedure is for either party to approach a judge by way of chamber application to seek directions, rather than resorting to procedural sanctions such as barring. A party who unreasonably persists in demanding delivery of pleadings in the face of a special plea having been filed may be found to have unreasonably raised a bar, entitling the barred party to removal of the bar. In applications for removal of a bar under Order 12 Rule 84(1) of the High Court Rules, 1971, the court has discretion to grant the indulgence sought, and each case must be decided on its own merits. Unreasonable opposition to an application for removal of a bar will affect the order for costs.

The court observed that not only would approaching the court for directions have saved costs, but it would have avoided the convolution of the matters. The court noted that generally, a refusal to agree to the removal of a bar will not lead to an award of costs against the party refusing, but an unreasonable opposition to an application for removal of a bar will affect the order for costs. The court also made obiter comments regarding the principles in Schafer v Memel Municipality (that appearing to oppose substantially with a view to increasing or obtaining costs from the applicant will not be allowed) and Flashchart v Von Kuehne (that where it is perfectly clear and obvious that the application must be granted, the respondent might not be considered justified in appearing in court to oppose). The court's clarification regarding the inadvertent inclusion of a de bonis propriis costs order, which was never intended, suggests that such punitive costs orders against legal practitioners personally should only be made in exceptional circumstances where clearly warranted.

This case is significant in Zimbabwean civil procedure law as it clarifies the proper procedure to be followed when legal practitioners reach a stalemate regarding procedural steps in litigation. It emphasizes that parties should approach the court by way of chamber application to seek directions rather than resorting immediately to procedural sanctions such as barring. The case also provides guidance on when the raising of a bar may be considered unreasonable, particularly where a special plea has been filed and there is genuine dispute about whether further pleadings should be filed. The judgment reinforces the principles regarding removal of bars and the circumstances in which costs may be awarded against a party opposing such removal. It also demonstrates judicial restraint in declining to award costs de bonis propriis against legal practitioners absent exceptional circumstances justifying such a punitive order.