G & P Industries (Pvt) Ltd and Fitz Gerald & Des Real Estate v Kwekwe Consolidated Gold Mines (Pvt) Ltd and The Registrar of Deeds N.O.

The first applicant was the registered owner of Stand 1584 Que Que Township. The first respondent issued summons under HC 1799/16 on 3 October 2016 seeking orders to stop the applicants from selling residential stands on mining claims allegedly belonging to the first respondent, and to cancel the Deed of Transfer registered in the first applicant's favor. A plea was filed and replication was made on 6 July 2017. Thereafter, nothing occurred in the matter for over four years until the applicants filed this application seeking dismissal of the action for want of prosecution. Both parties failed to proceed with discovery after replication, and the matter remained dormant in the Registrar's Office.

• Whether the High Court has inherent jurisdiction under section 176 of the Constitution and common law to dismiss an action for want of prosecution
• Whether the applicants followed the correct procedure in seeking dismissal for want of prosecution
• Whether there was a lacuna in the rules that would justify invoking the court's inherent jurisdiction
• Whether Rule 47(10) and (11) of the High Court Rules provided an adequate remedy for the situation

1. The application for dismissal of an action for want of prosecution is hereby dismissed. 2. Each party is to bear its own costs.

The inherent jurisdiction of the High Court under section 176 of the Constitution and common law to regulate its own process should only be invoked where there is a lacuna in the law or rules - that is, where no specific remedy is provided. Where the High Court Rules provide a mechanism to deal with a particular procedural problem (such as Rule 47(10) and (11) regarding failure to make discovery and consequent dismissal), parties must exhaust those remedies before resorting to the court's inherent jurisdiction. The power to invoke inherent jurisdiction must be exercised sparingly and with caution, and cogent grounds must be presented to persuade the court to act outside the powers specifically provided in the rules. Rule 47 applies to "any party" and is not limited to the plaintiff as dominus litis, meaning any party could have triggered the procedure to move the matter forward.

The court observed that both parties were culpable for the delay - the first respondent for failing to prosecute its case within a reasonable time after filing its replication, and the applicants for also failing to take steps to advance the matter using the available procedures under Rule 47. The court noted that in light of the first respondent's conduct in allowing the matter to remain dormant for four years, it would not be fair and just to order the applicants to pay the first respondent's costs, despite the applicants' failure in the application. The court also noted that the gist of the first respondent's original claim was that it held mining claims which were not defined with requisite specificity and particularity, and that it sought an interdict against the applicants' lawful acts.

This case is significant in Zimbabwean civil procedure law as it clarifies the limits of the High Court's inherent jurisdiction under section 176 of the Constitution. It establishes that the court's inherent power to regulate its process should not be invoked where the Rules of Court provide an adequate remedy. The judgment reinforces the principle that parties must exhaust remedies available under the rules before seeking to invoke constitutional or common law inherent jurisdiction. It provides important guidance on when it is appropriate to seek dismissal for want of prosecution and emphasizes that the existence of specific procedural rules (such as Rule 47) precludes resort to inherent jurisdiction. The case also demonstrates the court's willingness to impose a costs order that reflects the conduct of both parties rather than simply following the event.