Chitungwiza Municipality v Priviledge Tirivavi and Felistas Shumba

The 1st respondent filed an application under case number HC 8124/17 on 1 September 2017 seeking a declaratur against the applicant (Chitungwiza Municipality) and the 2nd respondent, to be declared an innocent purchaser of Stand number 22930 Unit C situate in the District of Seke North, Goromonzi. The applicant and 2nd respondent filed Notices of Opposition on 26 September 2017 and 2 October 2017 respectively. However, the 1st respondent failed to file an answering affidavit, heads of argument, or take any steps to have the matter heard. The parties held a round table conference on 30 October 2017 where the applicant placed the 1st respondent on a high priority list for an alternative stand, but progress stalled as the applicant failed to avail an alternative stand. Seven months passed without the 1st respondent taking any action to prosecute the case, prompting the applicant to file an application for dismissal for want of prosecution under Order 32 r 236 of the High Court Rules.

• Whether the applicant was entitled to apply for dismissal for want of prosecution under Order 32 r 236(3) of the High Court Rules
• The interpretation and application of Order 32 r 236(3) where a respondent files a notice of opposition but the applicant fails to prosecute the matter
• Whether the 1st respondent showed good cause why the application should not be dismissed for want of prosecution
• The importance of compliance with time limits and procedural rules in court proceedings

1. The 1st respondent's application for a declaratur filed under Case no. HC 8124/17 was dismissed for want of prosecution. 2. The 1st respondent was ordered to pay the applicant's wasted costs in case HC 8124/17 and costs of the application on a legal practitioner and client scale.

Where a respondent has filed a notice of opposition to an application and one month has passed without the applicant filing an answering affidavit or setting the matter down for hearing, the respondent is entitled under Order 32 r 236(3) of the High Court Rules to apply for dismissal of the matter for want of prosecution. The court will grant such an application unless the applicant shows good cause why the matter should not be dismissed. The primary purpose of Rule 236 is to ensure that matters brought before the court are dealt with expeditiously and to prevent abuse of court process by dilatory litigants. Compliance with court rules and prescribed time limits is mandatory, and courts take a strict approach towards parties who fail to prosecute their cases with due expedition.

The court observed that the 1st respondent's suggestion that the application should have been made by the 2nd respondent rather than the applicant was misplaced, as Rule 236(3) clearly allows any respondent who has filed a notice of opposition to seek dismissal for want of prosecution. The court also noted approvingly the maxim from Lovemore v Chairman of the Public Service Commission that 'those who sit on their litigation until cows come home have only themselves to blame if condonation is refused when they finally wake up from their years of somnambulism.' The court emphasized that having noted the applicant was not forthcoming in providing an alternative stand, the 1st respondent ought to have taken action rather than allowing the matter to hang 'like the proverbial sword of Damocles.'

This case reinforces the strict approach Zimbabwean courts take in enforcing compliance with procedural rules and time limits. It clarifies the proper application of Order 32 r 236(3) of the High Court Rules, which allows a respondent who has filed a notice of opposition to apply for dismissal of the matter where the applicant fails to prosecute within the prescribed time. The case emphasizes the principle that courts will not tolerate dilatory conduct by litigants who fail to prosecute their cases with due expedition. It serves as a warning to litigants that they must be vigilant in pursuing their cases or risk dismissal, applying the maxim 'vigilantibus non dormientibus jura subvenient' (the law helps the vigilant, not the sluggard). The judgment demonstrates that court rules are not mere formalities but essential mechanisms for the proper administration of justice.