Bernard Vengayi v Dr Gideon Gono and Others

The matter was set down for trial on 28 September 2009. On that date, the plaintiff's counsel (Mr Tafireyi) applied for a postponement on the basis that the plaintiff's papers were not in order and that he was appearing on behalf of a colleague who was not available to handle the trial. The court granted an indulgence and postponed the matter, making it clear that whoever was responsible for handling the matter had to be available on the next date (1 October 2009). On 1 October 2009, Mr Tafireyi again appeared and apparently sought a further postponement, indicating he was not the practitioner originally meant to handle the matter.

• Whether the court should grant a further postponement where the plaintiff's legal practitioners have failed to attend trial despite being granted a prior indulgence
• Whether a plaintiff should bear the consequences of dilatory conduct by their chosen legal practitioner
• Whether the plaintiff's claim should be dismissed for want of prosecution

The plaintiff's claim was dismissed with costs.

A litigant who chooses their legal practitioner must bear the consequences of that counsel's conduct. Where a plaintiff exhibits dilatory conduct through their legal practitioners, including repeated postponement applications and failure to have the matter ready for trial despite being granted indulgences, the court is entitled to dismiss the claim with costs. A plaintiff who drags another party to court must demonstrate enthusiasm to see the matter finalized, and failure to do so may result in dismissal for want of prosecution.

The court observed that it cannot countenance a situation where different legal practitioners take turns coming to court to seek postponements, particularly where they represent the plaintiff who initiated the proceedings. The court expressed sympathy for counsel's alleged misfortune but noted that if counsel's earlier submissions were to be believed, he was not the practitioner supposed to handle the matter - indicating that there may have been internal organizational issues within the plaintiff's legal practice.

This case demonstrates the Zimbabwean High Court's approach to dilatory conduct by legal practitioners and the principle that litigants must bear the consequences of their chosen counsel's conduct. It emphasizes the court's expectation that plaintiffs who initiate proceedings must prosecute their claims with diligence and that courts will not tolerate repeated postponements, particularly where different practitioners appear on behalf of the same party seeking adjournments. The case reinforces the court's power to dismiss claims for want of prosecution where there is a pattern of delay and lack of preparedness.