The applicant filed a chamber application seeking to convert her earlier court application for a declaratory order (HC 303/16) concerning her rights over stand No. 9162 Whitecliff into action proceedings. She based this request on the ground that the second respondent had filed opposition and there were serious disputes of fact between the parties that could not be reconciled on the papers. The first respondent had not opposed the matter. The judge queried the legal basis for the application and requested the applicant's legal practitioners to file heads of argument within 14 days, but they failed to respond. The certificate of service filed by the legal practitioner was also inadequate and confusing, purporting to have served "the respondent" at the Legal Resources Foundation offices, without specifying which respondent was served.
The application was dismissed.
It is not competent for parties to bring a chamber application seeking to convert court application proceedings into action proceedings. The court hearing an application exercises discretion on how the application should be managed, including whether to refer it to trial under Rule 239(b). A judge sitting in chambers cannot grant an order converting application proceedings into action proceedings, as this would improperly anticipate and dictate to the judge who will hear the application how it should be determined. Parties cannot dictate to the court how an application should be determined. An applicant who chooses application procedure takes the risk that where material factual disputes arise that were or should have been reasonably anticipated, the court may dismiss the application.
The court observed that it is highly unethical and unprofessional for a legal practitioner not to respond to a query by a judge over a matter that the legal practitioner has placed before the court for decision. The court also commented that the certificate of service filed was totally inadequate, unclear, confusing, and had no probative value, having been perfunctorily prepared. The court noted that applications are not intended to be dealt with as actions, and will only be dealt with as such with the presiding judge being at large as to how to dispose of the opposed application.
This case is significant in Zimbabwean civil procedure as it clarifies that parties cannot unilaterally seek to convert application proceedings into action proceedings through a chamber application. It reinforces the principle that the management of application proceedings, including whether to refer a matter to trial due to factual disputes, is within the discretion of the court hearing the application itself, not a separate chamber application. The judgment emphasizes procedural discipline and the strategic risk litigants take when choosing application procedure over action proceedings. It also underscores the professional obligations of legal practitioners to respond to judicial queries and to prepare proper certificates of service.