Ismail Moosa Lunat and Others v Toppers Uniforms (Pvt) Ltd and Others

This was a chamber application for the upliftment of a bar effected against the applicant in case number HC 783/20 on 9 June 2020. The bar was imposed following the applicant's failure to file a notice of opposition and opposing affidavits by the end of the day on 9 June 2020. The opposing papers related to a chamber application for dismissal for want of prosecution of HC 371/20 on the basis that the answering affidavit and heads of argument had not been filed timeously. On 9 June 2020, which was the last day for filing opposing papers, the applicant attempted to attend at his legal practitioners' offices to sign the affidavits but was held up at a police checkpoint set up to screen travelers due to COVID-19 pandemic restrictions. He contacted his lawyers who eventually picked him up from the checkpoint at 16:00 hours. They rushed to collect the papers, and the clerk later took the papers to the High Court with the applicant's unsigned affidavit. The registry clerk stamped the papers but refused to accept them due to the unsigned affidavit. The respondents opposed the application, alleging fraud in respect of the filing of papers, claiming the applicant had not been candid with the court, and arguing that the applicant was manufacturing facts.

• Whether the applicant provided a reasonable explanation for the delay in filing opposing papers
• Whether the application was bona fide and not made with intention to delay the other party's claim
• Whether the applicant was guilty of reckless or intentional disregard of the rules of court
• Whether the applicant's case was obviously without foundation
• Whether the respondent would be prejudiced to an extent that cannot be rectified by a suitable order for costs
• Whether the court should exercise its discretion to uplift the bar

The application for upliftment of the bar was granted, with costs being in the cause.

Where an applicant seeks upliftment of a bar, the court must apply the test from Smith N.O. v Burmmer N.O. requiring: (a) reasonable explanation for delay; (b) bona fide application; (c) no reckless or intentional disregard of rules; (d) case not obviously without foundation; and (e) no undue prejudice to the other party. Where there has been no blatant disdain for the rules of court and the applicant provides a reasonable explanation for non-compliance (such as delays caused by COVID-19 enforcement measures), courts should lean towards granting rather than refusing applications for upliftment of bars prior to final judgment. Justice demands that litigants be heard on the merits of their case where possible, so that the real dispute between the parties can be resolved, rather than dismissing matters on procedural technicalities where no grave prejudice results.

The court observed that to prejudge an applicant's conduct in other pending cases that have not yet been heard and use such judgment in the current case would be a miscarriage of justice. The court noted that although it was not prudent for the applicant to wait until the last day (9 June) to file opposing papers, an effort was made to file the papers within the dies induce, albeit on its last day. The court remarked that the criteria and views taken on matters relating to condonation are the same as those for upliftment of a bar because both deal with delays in complying with the rules of procedure. The court emphasized that except where there has been grave disdain for court rules, the door should not be slammed shut on a litigant who is out of time but has an interest in defending the real dispute between the parties.

This case is significant in Zimbabwean civil procedure for affirming the principle that courts should exercise their discretion liberally in favour of granting applications for upliftment of bars or condonation where there is a reasonable explanation for non-compliance with procedural rules, particularly where exceptional circumstances (such as COVID-19 restrictions) have caused the delay. The judgment emphasizes the importance of deciding cases on their merits rather than on procedural technicalities, and that litigants should be given an opportunity to be heard where there has been no blatant disregard for court rules. The case demonstrates judicial recognition of the impact of COVID-19 pandemic restrictions on compliance with court procedures.