Asswell Africa Gurupira and Jean Jane Gurupira v Earthmoving & Construction Company (Pvt) Ltd and Others

The applicants had filed an application (HC 1393/08) on 7 March 2008 seeking to compel transfer of property known as No. 98 Churchill Avenue, Harare (Stand 12896 Salisbury Township) from the first respondent company to themselves. A default judgment was granted on 21 May 2008 and executed. The sixth respondent, as Managing Director of the first respondent, filed a rescission application (HC 4211/08) on 22 August 2008, claiming he had become the sole shareholder of the first respondent after acquiring all shares from the second respondent (Sandra Muir) on 28 May 2008. The rescission was eventually granted by Mafusire J on 19 March 2014, setting aside the default judgment and restoring the prior deed of transfer. The court directed that residual issues be determined in the main matter, including whether the transfer of shares to John Leggett should be set aside. The applicants then sought to join the sixth respondent (John Leggett) as a party to the main matter, which he opposed despite having a clear interest in the outcome.

• Whether John Leggett should be joined as a party to the main application HC 1393/08
• Whether Rule 85 of the High Court Rules 1971, which expressly applies to actions, can be applied to joinder in application proceedings
• Whether the application for joinder was barred by delay
• Whether the claim against the sixth respondent was prescribed
• Whether the court could exercise its discretion under Rule 4C to depart from procedural rules in the interests of justice

The application succeeded. John Leggett was joined as the 6th Respondent in Case No. HC 1393/08. The 6th Respondent was given 10 days from service to file a Notice of Opposition if he wished to defend the claim. The rest of the pleadings were to be dealt with in accordance with court rules. No order as to costs was made.

Where a party has a clear and vested interest in the subject matter of proceedings, they should be joined as a party to enable the court to properly determine all issues, even if the application for joinder is brought after pleadings have closed. Although Rules 85 and 87 of the High Court Rules 1971 appear to confine joinder to actions, Rule 4C empowers the court to depart from procedural rules and authorize joinder in application proceedings where required in the interests of justice. A rigid construction of procedural rules that would prevent joinder of an interested party in application proceedings would result in a miscarriage of justice. The term "any cause" in Rule 87 should be given a wider and encompassing meaning to include applications.

The court observed that issues of prescription and whether a matter should proceed by way of action rather than application are matters to be determined by the judge hearing the main matter, not at the joinder stage. The court noted it had discretion to manage subsequent pleadings, including allowing supplementary affidavits subject to leave being granted, to accommodate the joinder without prejudice to the joined party. The court commented that where a party has withdrawn a previous attempt to bring a claim (the counterclaim citing Leggett), this does not preclude a fresh application for joinder in appropriate circumstances.

This case is significant for establishing that Zimbabwean courts can apply joinder provisions flexibly in application proceedings, not just in actions, by invoking Rule 4C to depart from strict procedural rules in the interests of justice. It demonstrates the court's inherent power to manage its own processes to ensure that all interested parties are before the court when determining substantive rights. The case also illustrates that where a party has clearly demonstrated a vested interest in proceedings through their own statements and conduct in related matters, they cannot later object to being joined as a party. It reinforces the principle that procedural justice must serve substantive justice.