Clement Takura Chikati v Crowhill Farm (Private) Limited

On 20 May 2015, the applicant obtained a default judgment against the respondent. On 18 May 2018, the respondent applied for rescission of that judgment (HC 4644/18). On 21 June 2018, the applicant served its notice of opposition on the respondent. The respondent failed to file an answering affidavit or set the matter down for hearing within one month as required by the rules. After more than one month of inaction by the respondent, the applicant filed this application seeking dismissal of the respondent's rescission application for want of prosecution under Rule 236(3)(b) of the High Court Rules, 1971. The respondent initially claimed its Managing Director, Mr Sithole, had gone on leave in June 2018 and failed to give instructions to legal practitioners. The respondent alleged it had no knowledge of the original summons and that persons purporting to act on its behalf regarding settlement offers were fraudsters without authority. A purported answering affidavit filed in October 2018 was defective, being undated, unsigned and not commissioned. By the time of the hearing, the respondent had failed to prosecute its rescission application for twelve months from 21 June 2018.

• Whether the respondent's application for rescission of judgment should be dismissed for want of prosecution under Rule 236(3)(b) of the High Court Rules, 1971
• Whether the respondent provided a satisfactory explanation for the inordinate delay in prosecuting its rescission application
• What factors the court should consider when exercising discretion to dismiss a matter for want of prosecution
• Whether the respondent's prospects of success on the merits were sufficient to justify refusing dismissal

The application was granted as prayed in the draft order. The respondent's application for rescission of judgment (HC 4644/18) was dismissed for want of prosecution.

When considering an application to dismiss proceedings for want of prosecution under Rule 236(3)(b) of the High Court Rules, 1971, the court must exercise judicial discretion by considering: (a) the length of delay and explanation thereof; (b) the prospects of success on the merits; and (c) the balance of convenience and possible prejudice to the applicant. A delay of twelve months without reasonable explanation constitutes inordinate delay warranting dismissal. Where a litigant provides false explanations for delay and subsequently concedes the falsity, the court may draw adverse inferences against that litigant's entire case, including doubting other unproven allegations. A defective affidavit that is undated, unsigned and not commissioned is a nullity that cannot advance a party's case. Litigants must be candid with the court and failure to provide truthful explanations will weigh heavily against them in the exercise of judicial discretion.

The court expressed strong disapproval of litigants who build their cases on lies, endorsing the principle from Leather Tread Zimbabwe (Pvt) Ltd v Smith that if a litigant gives false evidence, their story will be discarded and adverse inferences may be drawn as if they had not given evidence at all. The court cited Hoffman and Zeffert's South African Law of Evidence for the proposition that if a litigant lies about a particular incident, the court may infer there is something they wish to hide. The court noted it was 'very disquieting' that the respondent filed an opposing affidavit containing a lie and persisted with it until the hearing, only conceding at the eleventh hour. The court observed that the respondent could have utilized modern technology to contact its Managing Director during his alleged leave, exposing the implausibility of the explanation. The court also commented that nothing prevented the respondent from challenging the authority of the legal practitioners who allegedly made settlement offers without authorization, and the failure to do so undermined the respondent's credibility.

This case demonstrates the Zimbabwean courts' strict approach to compliance with procedural time limits under Rule 236 of the High Court Rules, 1971, and reinforces the principle that litigants must prosecute their cases diligently or face dismissal. It emphasizes the serious consequences of dishonesty in litigation and how false explanations undermine a party's entire case. The judgment illustrates how courts will draw adverse inferences from lies told by litigants, applying principles that if a litigant lies about one aspect, the court may infer they are hiding something and may disbelieve their entire case. The case also clarifies the factors courts must consider when exercising discretion to dismiss matters for want of prosecution, following the Guardforce Investments test.