City Centre Properties (Private) Limited instituted two consolidated actions against Puwayi Chiutsi and others relating to rental arrears and operating costs for premises. The parties had previously entered into a deed of settlement which was not complied with, and two consent orders had been granted. A consent order by Hungwe J on 14 November 2012 determined rental arrears from January 2009 to November 2012 and ordered the first defendant to vacate by 31 August 2012, but referred issues of interest and operating costs to trial. The matter was set down for trial on 26 February 2013, with notice served on 10 December 2012. The first defendant repeatedly failed to appear or requested postponements at the last minute, claiming to need time to review documents and citing commitments in other courts. On 28 February 2013, the first defendant again requested a delay claiming bail court commitments but failed to attend at the agreed time or send word of his absence.
1. All defendants' defences in HC 5708/10 and HC 7593/11 struck out. 2. First defendant's counterclaim in HC 5708/10 dismissed with costs. 3. Judgment granted in favor of plaintiff against all three defendants for: (a) Payment of $27,788.20 being operating costs with interest at 14% per annum from January 2009 to date of payment; (b) Interest on rentals of $39,576.93 at 14% per annum from January 2009 to date of payment; (c) Costs of suit on legal practitioner and client scale.
The law does not assist sluggards or dilatory litigants who abuse court processes. Where a defendant demonstrates repeated and inexcusable failure to attend trial despite adequate notice, engages in deliberate stalling tactics, and shows contempt for court procedures by double-booking appearances, the court is entitled to strike out the defence and grant default judgment. The principle of finality in litigation requires that parties prosecute their cases diligently, and failure to do so justifies severe sanctions including costs on an attorney-client scale.
Mathonsi J endorsed and expanded upon the Supreme Court's observations in Ndebele v Ndebele regarding the proliferation of applications for rescission, condonation, and extensions of time arising from incompetence and delays. The court observed that applications for relief arising from delays "have rocketed in numbers" and that "incompetence is becoming a growth industry," with petty disputes being argued and re-argued until costs far exceed the capital amount in dispute. The court lamented that it hears "more appeals for charity than for justice," emphasizing the need to remind the legal profession of their duty of diligence.
This case reinforces the Zimbabwean courts' strict approach to dilatory conduct and abuse of court process, emphasizing that litigants who fail to show diligence will not receive the court's assistance. It demonstrates the courts' commitment to finality in litigation and their willingness to impose severe sanctions, including default judgment and attorney-client costs, against parties who repeatedly waste court time and display contempt for court procedures. The case serves as a warning against double-booking court appearances and last-minute postponement requests without valid justification.