The applicants claimed to be the registered title holders of the remainder of 67 Guildford Estate, Township of Subdivision H of Guildford of Borrowdale Estate measuring 4603 square metres held under Deed of Transfer 1447/2009. They averred that they enjoyed peaceful and undisturbed possession of the house on the property since 2009 until 14 November 2020, when the respondents and hooligans allegedly broke into the house and forcibly evicted the applicants, throwing their household goods and furniture outside. Despite the first respondent being arrested on 17 November 2020, he allegedly returned with hooligans on 17 November 2020 and forcibly occupied the property. The applicants had previously filed an identical urgent application (HC 6767/20) on 18 November 2020, which was struck off the roll by Chinamora J on 24 November 2020 for non-compliance with Rule 241(1) - using Form 29B instead of Form 29 with modifications. The applicants then filed the present application on 25 November 2020 using the correct form.
The point in limine was dismissed. The applicant was given five days from the date of judgment to advise the Registrar in writing if they wished to prosecute the application further for the matter to be set down for continuation. Costs were reserved.
When a matter is struck off the roll under Practice Direction 3 of 2013 for fatal defects in form, it remains a pending matter and the applicant has 30 days to rectify the defect and re-set down the matter without needing to apply for reinstatement. An application for reinstatement is only required where the 30-day period has lapsed and the matter is deemed abandoned. Where two similar matters are pending (lis pendens), the court has discretion to proceed with the second matter based on considerations of justice, equity and balance of convenience, particularly where constitutional rights are implicated and the objection is procedural rather than substantive.
The court noted that the delay in delivering judgment was regrettable but attributable to confusions affecting court operations due to COVID-19 effects. The court also observed that spoliation matters raise important constitutional rights concerns where persons have allegedly been forcibly dispossessed of peaceful and undisturbed possession of property, which inclines the court to hear such matters expeditiously notwithstanding procedural complications.
This case provides important clarification on the interpretation and application of Practice Direction 3 of 2013 in Zimbabwean courts, particularly regarding the procedure to be followed when matters are struck off the roll for non-compliance with court rules. It establishes that applicants have a 30-day window to rectify defects without needing to apply for reinstatement, and that reinstatement applications are only required after this period when matters are deemed abandoned. The judgment also demonstrates the court's willingness to exercise discretion in lis pendens situations where constitutional rights (such as in spoliation cases) are at stake, prioritizing substance over procedural technicalities.