Bacnet Trading (Private) Limited v Netone Cellular (Private) Limited

In 2000, the then Minister of Local Government allocated the Remainder of Lot A of Chikurubi (measuring 131.3710 hectares, held under deed of grant 13832 of 1953) to the appellant, Bacnet Trading, fronted by Charles Chombo, its managing director. The first respondent, Netone Cellular, disputed the appellant's entitlement to ownership, claiming to have acquired the property through a deed of grant issued by the Queen in 1953. On 27 October 2014, the matter came before Mafusire J in the High Court. The appellant applied for a postponement because its legal practitioner of choice was unavailable due to an emergency abroad, and Mr Machiridza was only standing in. Both respondents also applied for upliftment of the bar operating against them for failure to file heads of argument timeously. The learned judge dismissed both the postponement application and the upliftment applications, then proceeded to enter a default judgment in favor of the first respondent (Netone), declaring it the rightful owner of the property and issuing various interdicts against the appellant.

• Whether the High Court erred in refusing to grant a postponement when the appellant's legal practitioner of choice was unavailable due to an emergency
• Whether a litigant is entitled to representation by a legal practitioner of their own choice at every stage of proceedings
• Whether the High Court erred in entering default judgment when the appellant was not at fault
• Whether the proceedings were tainted with fatal procedural irregularity

1. The appeal is allowed with costs. 2. The judgment of the court a quo is set aside. 3. The matter is remitted to the High Court for a determination of the merits by a different judge.

A litigant is entitled to representation by a legal practitioner of their own choice at every stage of the proceedings. The court cannot usurp that right and choose a legal practitioner for the litigant against their will. The general rule is that an applicant is entitled to postponement in the absence of prejudice to the other party or prejudice which can be addressed by an appropriate award of costs. Where a legal practitioner of choice is unavailable on account of an emergency and there is no evidence of irreparable prejudice that cannot be addressed by costs, the court must grant the postponement to facilitate the litigant's right to representation. Proceedings conducted in the absence of the party's preferred legal practitioner in such circumstances are tainted with fatal procedural irregularity.

The Court noted that the delay in rendering reasons for judgment was self-created by the parties' failure to timeously request the reasons. The court order was issued on 31 March 2017, but it took the second respondent more than one and a half years (until 10 October 2018) to request reasons for the court's decision. The Court observed that this delay was inordinate and inexcusable. The delay was compounded by the fact that the Registrar had great difficulty in tracing the record of proceedings at the court a quo. Despite this, the Court proceeded to provide reasons notwithstanding the inordinate delay.

This case reinforces the fundamental right of litigants to be represented by a legal practitioner of their own choice at every stage of proceedings in Zimbabwean law. It establishes clear guidelines on when postponement applications should be granted, particularly when a party's chosen legal representative is unavailable due to genuine emergency circumstances. The case emphasizes that courts should not enter default judgment when a party is not at fault and has shown good cause for postponement. It serves as an important precedent on procedural fairness and the administration of justice, demonstrating that technical considerations should not override substantive rights to proper legal representation.