Ellah Muringayi v Bertha Berejena N.O.

The plaintiff and defendant (executor dative in the estate of the late Titus George Berejena) executed a sale agreement on 5 March 2015 for the purchase of stand 8631 Salisbury Township (23 Britania Road Southerton Harare) for US$50,000. The plaintiff paid a deposit of US$30,000 but defaulted on the balance of US$20,000. The defendant cancelled the agreement and failed to refund the deposit, claiming she had distributed it to estate beneficiaries and would only refund upon resale of the property, less agent's commission of US$2,500. The plaintiff issued summons on 8 June 2016. A pre-trial conference was held on 19 October 2016 where parties agreed to further negotiations and consented to postponement to 4 November 2016. On 28 October 2016, plaintiff's counsel wrote indicating she would attend Law Society Summer School from 3-6 November 2016 and sent a stand-in counsel to apply for postponement. The stand-in counsel appeared without the plaintiff, had no file or instructions on the matter, and only sought postponement.

• Whether attendance at Law Society Summer School constitutes good cause for postponement of a pre-trial conference
• Whether a court should grant a postponement where a legal practitioner consented to a date knowing of unavailability
• The duties and obligations of legal practitioners in pre-trial conference procedures
• The requirements for granting applications for postponement
• Whether default by a plaintiff at a pre-trial conference warrants dismissal of the claim

The plaintiff's claim was dismissed with costs. The Registrar was instructed to provide a copy of the judgment to the Secretary of the Law Society without charge.

An application for postponement is an indulgence requiring demonstration of good cause, not granted as a matter of course. The party seeking postponement must show the application is bona fide, made timeously at the earliest opportunity, and the explanation is reasonable. Legal practitioners who consent to a court date cannot rely on pre-existing professional commitments as good cause for postponement. Pre-trial conferences are essential proceedings requiring the presence and preparation of parties and their legal practitioners; wilful default at such conferences can result in dismissal of pleadings. Stand-in counsel briefed only to apply for postponement must be prepared to proceed with the matter if the application is refused, particularly in uncomplicated matters like pre-trial conferences. The convenience of the court and both parties, not just the convenience of one party's counsel, are dominant considerations in determining postponement applications.

The court made several important observations: (1) While Law Society Summer School is important for continuing legal education and earning required points for practicing certificates, it is not the only opportunity for earning such points, and the Law Society may grant extensions; (2) Legal practitioners should not presume postponements will be granted, as doing so places their clients at peril; (3) The court recognizes the importance of the Summer School in the legal calendar but emphasized that legal practitioners with court engagements must prioritize court attendance; (4) There is a concerning tendency among legal practitioners to brief colleagues merely to apply for postponements without proper preparation; (5) Agreement between parties for postponement does not bind the court, as the decision remains within judicial discretion; (6) The purpose of pre-trial conferences is to attempt settlement and, where not possible, to identify issues for trial to curtail proceedings - it is disrespectful to wait until the scheduled time to advise inability to attend.

This case is significant in Zimbabwean civil procedure for: (1) clarifying the stringent requirements for granting postponements, particularly where dates were set by consent; (2) emphasizing that pre-trial conferences are essential proceedings, not formalities, requiring full preparation and party attendance; (3) establishing that professional development activities like Law Society Summer School do not constitute good cause for court default when court dates were agreed to by consent; (4) reinforcing legal practitioners' duties to the court and the consequences of treating postponement applications as automatic; (5) providing guidance on the obligations of stand-in counsel who must be prepared to proceed if postponement is refused; (6) confirming that wilful default by a party at pre-trial conference can result in dismissal of pleadings. The judgment serves as an important reminder to the legal profession about court discipline and the sanctity of pre-trial procedures.