CBZ Bank Limited v Caleb Dengu and Wilson Nyabonda and Allied Bank Limited

This was an application to reinstate case HC 432/13, wherein Allied Bank Limited (the third respondent in this matter) was the plaintiff against the 1st and 2nd respondents as defendants. On 11 September 2017, MUREMBA J granted an order by consent removing the matter from the roll with a direction that plaintiffs amend their pleadings to include CBZ's claim. The Registrar notified the parties on 20 September 2017 that they had 3 months from the date of removal to set the matter down, failing which it would be deemed abandoned and lapsed in terms of Practice Direction 3/13. Instead of setting the matter down within the stipulated period, the applicant filed a notice of amendment on 4 April 2018 (after the 3-month period had expired), seeking to add CBZ Bank Limited as a second plaintiff. The defendants' legal practitioners informed the plaintiff on 26 April 2018 that the matter had lapsed. On 27 November 2018 (approximately 11 months after the stipulated period), the applicant filed this chamber application for reinstatement. The applicant also filed heads of argument out of time. The background involved a loan advanced by Allied Bank (3rd respondent) to a company in which the 1st and 2nd respondents were directors and sureties. The debt was later ceded to CBZ Bank when Allied Bank went into liquidation.

• Whether the bar for filing heads of argument late should be uplifted
• Whether the application complied with the proper form prescribed by the Rules of Court (Form 29 vs Form 29B)
• Whether the applicant had shown good cause for reinstatement of the lapsed matter
• Whether the extent of the delay was inordinate
• Whether the explanation for the delay was reasonable
• Whether the applicant had prospects of success in the main matter

The application for reinstatement was dismissed with costs.

In an application for reinstatement of a matter deemed to have lapsed for want of prosecution, the applicant must demonstrate good cause by satisfying three requirements: (i) explaining the extent of the delay, (ii) providing a reasonable explanation for the delay, and (iii) demonstrating prospects of success in the main matter. A delay of approximately 11 months after the stipulated period for setting down a matter is inordinate. An explanation for delay that is vague, unsubstantiated, and fails to explain why corrective action was not taken earlier or why the applicant did not inform the court of difficulties, is unreasonable. An applicant must adequately address prospects of success with particularity in the founding affidavit; vague references to documents without explaining their import or relevance is insufficient. An application for reinstatement rises or falls on the founding affidavit, and where fundamental issues are not candidly and comprehensively addressed, the application must fail. While courts have discretion to overlook procedural defects in form where no prejudice results (Rule 229C), substantive non-compliance with time limits prescribed by Practice Directions will not be condoned without proper justification.

The court made several important observations about the administration of justice and compliance with rules. WAMAMBO J cited with approval DUMBUTSHENA CJ's statement in S v McNab that "laxity in dealing with non-observance of the rules will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration of justice." The court also endorsed MANGOTA J's observation in Spectron Motors that "the rules of court are not there for cosmetic purposes. They assist the court and legal practitioners to move matters forward from one stage to the next." The court noted that it adopted "a robust approach with an eye on litigation reaching finality" when deciding to uplift the bar regarding late filing of heads of argument in the particular circumstances of the case. The court observed that the applicant "appears not to have taken the matter seriously" and exhibited "flagrant disdain of the rules" that continued from the main matter into the application itself. The court also noted approvingly the principle from Juddy Chimango that "rules of court ought to be strictly adhered to but such adherence should never be allowed to stand in the way of justice" and that courts should be able to manage and control their own processes. Regarding the choice between chamber applications versus oral applications for upliftment of a bar, the court cited CHITAPI J's observation that while the rules do not specify which route to take, oral applications may be preferable in certain circumstances where heads have been prepared and served.

This case reinforces the strict approach taken by Zimbabwean courts to compliance with procedural rules and Practice Directions, particularly regarding time limits for setting matters down after removal from the roll. It emphasizes that: (1) the test for reinstatement of lapsed matters requires demonstration of good cause by addressing the extent of delay, reasonableness of explanation, and prospects of success; (2) delays of approximately 11 months are considered inordinate; (3) vague and unsubstantiated explanations for delay will not suffice; (4) applicants must adequately address prospects of success in their founding affidavits with particularity, not vague generalities; (5) while courts may exercise flexibility regarding procedural form where no prejudice results, substantive non-compliance with time limits and rules will not be condoned; and (6) laxity in dealing with non-observance of rules encourages disregard for court procedures to the detriment of the administration of justice. The case demonstrates judicial intolerance for legal practitioners who treat court rules as "cosmetic" rather than essential to the orderly administration of justice.