Chichi Clothing Manufacturers (Private) Limited and Others v Commercial Bank of Zimbabwe t/a The Jewel Bank and Others

The plaintiffs (four entities including three companies and an individual trading as Chichi Trading Stores) issued summons on 5 November 2004 concerning property (Stand 283) that had been sold in execution and transferred to the second defendant on 9 November 2000. Prior to these proceedings, the first plaintiff had instituted at least six other sets of litigation in the High Court (HC 4403/00, HC 7648/00, HC 12906/00, HC 10438/01, HC 5773/03, HC 9352/04), all concerning the same property sale, all of which were withdrawn. The current proceedings were characterized by extreme delay and numerous changes in legal representation - the plaintiffs changed legal practitioners at least 14 times between 2004 and 2010. When the matter was set down for trial on 8 June 2010, the first, second and third plaintiffs (all companies) were not represented by a legal practitioner. The fourth plaintiff appeared in person. The court had previously on 10 May 2010 given directions for the plaintiffs to secure legal representation by 24 May 2010, but this was not done. On 4 June 2010, the fourth plaintiff wrote requesting postponement stating he was "busy on my farm planting maize and wheat."

• Whether the first, second and third plaintiffs were in default of appearance when not represented by a legal practitioner at trial
• Whether a company can be represented by its alter ego without leave of the High Court
• Whether the High Court has inherent jurisdiction to dismiss an action for abuse of court process or failure to prosecute
• What constitutes abuse of court process sufficient to warrant dismissal of a claim
• Whether the defendants had suffered prejudice due to the plaintiffs' delays

The claim by all plaintiffs was dismissed. The fourth plaintiff's claim was dismissed on the basis of abuse of court process. The first, second and third plaintiffs' claims were dismissed on the basis of default of appearance at trial. The plaintiffs were ordered to pay the defendants' costs jointly and severally, the one paying the others being absolved.

1. A superior court with inherent jurisdiction has the power to dismiss an action for abuse of court process, but this power must be exercised sparingly and only in exceptional cases where the conduct oversteps the threshold of legitimacy. 2. Companies can only be represented by legal practitioners in superior courts unless the alter ego has been granted specific leave by the High Court to appear on behalf of the company. 3. A company not represented by a legal practitioner (and whose alter ego has not obtained leave) is in default of appearance at trial. 4. The prerequisites for dismissal based on delay are: (a) delay in prosecution of the action; (b) inexcusable delay; and (c) serious prejudice to the defendant. 5. Persistent dilatory conduct, including multiple changes in legal representation, failure to comply with court directions, and a pattern of instituting and withdrawing litigation on the same subject matter, can constitute abuse of court process warranting dismissal.

The court made observations about the stringent nature of the test for abuse of process, noting it will depend on the facts and circumstances of each case and on the basis of fairness to both parties. The court also commented that there appears to be no similar case in the reports where relief was granted in an opposed trial action purely on the grounds of delay, emphasizing the exceptional nature of such relief. The court noted with disapproval the fourth plaintiff's attitude that "the court exists for his convenience" and his view that he could overlook court directions, describing this as displaying "contempt of this court and its procedures." The court also observed that suggestions of financial prejudice through witness attendance at abortive court dates had not been challenged by the plaintiffs.

This case is significant in Zimbabwean civil procedure for clarifying the circumstances under which courts will exercise their inherent jurisdiction to dismiss claims for abuse of process. It establishes that while such power exists, it must be exercised sparingly and only in exceptional cases. The case also reaffirms the principle from Lees Import and Export (Pvt) Ltd v Zimbank that companies cannot be represented by their alter ego in superior courts without express leave of the court. The judgment demonstrates the court's willingness to sanction litigants who engage in persistent dilatory tactics, multiple changes in legal representation, and failure to comply with court directions. It serves as a warning against treating court processes with contempt and emphasizes that access to courts, while a right, can be forfeited through egregious abuse of process.