Inverangus (Pvt) Ltd v Alice Sunga and 34 Others

The first to 33rd respondents filed an application for rescission of judgment on 8 June 2016 under case no. HC 5801/16, seeking to set aside an order granted on 6 April 2016 in case no. HC 7797/15. The applicant filed its notice of opposition and opposing affidavit on 23 June 2016. The respondents took approximately five months to file an answering affidavit to the opposing papers, and another three weeks to file an answering affidavit to the Minister's opposing affidavit in December 2016. On 19 January 2017, the applicant instituted an application for dismissal of the rescission application for want of prosecution. The respondents explained the delay in responding to the Minister's affidavit by stating they were looking for information relating to Government policy. They also failed to file heads of argument within 30 days after filing the answering affidavit without reasonable explanation.

• Whether the respondents' delays in prosecuting their rescission application justified dismissal for want of prosecution under Rule 236(3)(b)
• Whether the court should exercise its discretion to dismiss the rescission application given the respondents' conduct
• What constitutes reasonable explanation for delay in prosecuting an application

1. The application in case no. HC 5801/16 was dismissed for want of prosecution. 2. Costs of the application and case no. HC 5801/16 were awarded against the first to 33rd respondents jointly and severally, the one paying the others to be absolved.

Where a party seeking rescission of a default judgment exhibits unreasonable delay in prosecuting their rescission application without adequate explanation, the court is entitled to exercise its discretion under Rule 236(3)(b) to dismiss the application for want of prosecution in the interest of finality in litigation. A party seeking the court's indulgence to rescind a judgment granted due to their default must demonstrate diligent conduct in prosecuting the rescission application. The discretion to dismiss for want of prosecution must be exercised judicially upon consideration of all relevant circumstances of the case.

The court observed that Rule 236(3)(b) gives a respondent the right to expedite the finalization of an application by applying for dismissal for want of prosecution. The judge noted that seeking information on Government policy was not a sound explanation for delay given that the dispute had been ongoing for some time prior to that particular stage of proceedings.

This case reinforces the importance of diligent prosecution of applications in Zimbabwean civil procedure, particularly where a party is seeking the court's indulgence to rescind a default judgment. It demonstrates that courts will exercise their discretion under Rule 236(3)(b) to dismiss applications for want of prosecution where applicants exhibit lackadaisical conduct and cannot provide reasonable explanations for delays. The case emphasizes the principle of finality in litigation and the higher duty of diligence expected from parties who have already defaulted and are seeking a second opportunity from the court.