Cuthbert Elkana Dube v Premier Medical Investments (Private) Limited & Premier Service Medical Aid Society

The appellant was the former Chief Executive Officer of the second respondent (a medical aid society). On 27 March 2018, he brought an application in the High Court seeking a declaratory order that he was the holder of ten million shares (20% shareholding) in the first respondent (the second respondent's investment vehicle), based on a share certificate dated 29 July 2010. The respondents opposed the application on 11 April 2018, denying the appellant's shareholding and alleging the share certificate was obtained illegally, fraudulently or without due process. They acknowledged payment of Z$6,585,672,555.75 was deposited but argued it was improper, made late (March 2008 instead of April 2007), and eroded by inflation. The appellant did not file an answering affidavit within the prescribed time. The respondents filed an initial application for dismissal for want of prosecution in March 2019, which was withdrawn based on the appellant's undertaking to prosecute the matter. When the appellant failed to act for 5 months, the respondents filed a second application for dismissal for want of prosecution on 2 August 2019. The appellant opposed, citing illness as the reason for delay and asserting he had filed an answering affidavit and heads of argument on 19 August 2019. The High Court granted the dismissal on 7 July 2021.

• Whether the High Court properly exercised its discretion in dismissing the application for want of prosecution under Rule 236(3)(b) of the High Court Rules, 1971
• What factors must a court consider when deciding an application for dismissal for want of prosecution
• Whether a litigant can proceed with their application after being served with an application for dismissal for want of prosecution

The appeal succeeded with costs. The judgment of the High Court was set aside and substituted with an order dismissing the application for dismissal for want of prosecution, with each party to bear its own costs in the High Court proceedings.

When a court exercises its discretion to dismiss an application for want of prosecution under Rule 236(3) of the High Court Rules, 1971 (now Rule 59(15) of the High Court Rules, 2021), it must consider three mandatory factors: (1) the length of delay and the explanation for it; (2) the prospects of success on the merits; and (3) the balance of convenience and possible prejudice to the applicant. Failure to consider all three factors constitutes a misdirection that entitles an appellate court to interfere with the exercise of discretion. There is no rule of law that bars a litigant from proceeding with their application despite the filing of an application for dismissal for want of prosecution; indeed, the litigant can demonstrate seriousness by setting down the matter after being served with such an application.

The court noted that some of the grounds of appeal were repetitive and inconcise and did not meet the threshold set by Rule 44, though this was not raised with the parties at the hearing and therefore not considered in determining the appeal. The court observed that the appellant's case could have been presented more elegantly, as the authorities on which the matter was resolved were available but not properly brought to the attention of the High Court, which explained why the appellant was not awarded costs in the High Court despite succeeding on appeal. The court expressed the view that the interests of justice required that the propriety of the appellant's shareholding claim be fully interrogated, given that there was evidence of payment and acknowledgment of the agreement by the respondents.

This case is significant in Zimbabwean civil procedure as it clarifies and reinforces the mandatory factors that courts must consider when deciding applications for dismissal for want of prosecution. It establishes that courts cannot dismiss applications solely on the basis of delay and inadequate explanation, but must also consider prospects of success and prejudice. The judgment also clarifies that litigants are not precluded from proceeding with their applications after being served with applications for dismissal for want of prosecution, overruling the contrary position taken in some High Court judgments. The case reinforces the principle of stare decisis and the binding nature of Supreme Court precedents on the High Court. It demonstrates judicial preference for determining matters on their merits rather than on procedural technicalities, particularly where property rights are at stake.