The respondent sued the applicant for adultery damages in the sum of $25,000.00 ($12,500.00 for contumelia and $12,500.00 for loss of consortium) under case HC 4093/16. The applicant duly entered appearance to defend and filed his plea. The respondent filed his replication on 7 June 2016, after which no further activity took place. After 8 months of inactivity by the respondent, the applicant brought a chamber application seeking dismissal of the respondent's claim for want of prosecution. The respondent did not file any opposition to the application despite being served through his legal practitioners, Ngarava Moyo and Chikomo, and being given 10 days to oppose.
The application for dismissal of the respondent's claim for want of prosecution was refused. No order as to costs was made.
For an action to be dismissed for want of prosecution, three requirements must be met: (1) there must be delay in prosecution of the action; (2) the delay must be inexcusable; and (3) the defendant must be seriously prejudiced thereby. The court must conduct a close and careful examination of all relevant circumstances including the period of delay, the reasons therefor, the prejudice (if any) caused to the defendant, and the defendant's own conduct in failing to avail itself of remedies to expeditiously bring the action to trial. A defendant who fails to utilize available procedural mechanisms to expedite litigation and who cannot demonstrate actual prejudice from delay will not succeed in having an action dismissed for want of prosecution, even where the plaintiff's delay is inordinate.
The court observed that there are no hard and fast rules as to the manner in which the court's discretion should be exercised to dismiss an action for want of prosecution. The court noted that the High Court Rules provide numerous remedies for parties to protect themselves against dilatoriness, including insistence on observance of time limits, barring procedures, and the right to quicken procedures. The court remarked that once a plaintiff does nothing after filing a replication, the defendant is at liberty to close pleadings, request discovery, apply for pre-trial conference, and set the matter down for trial—in essence, the defendant can "call the shots." The court emphasized that finality to litigation need not be at the behest of the dominus litis (master of the suit) alone, suggesting that both parties have responsibilities to move litigation forward.
This case clarifies the approach Zimbabwean courts take to applications for dismissal of actions for want of prosecution. It emphasizes that courts will not readily dismiss actions merely due to delay by the plaintiff where the defendant has failed to utilize available procedural remedies to expedite the matter and has not demonstrated actual prejudice. The case reinforces the principle that parties must be diligent in protecting their own interests and cannot rely solely on their opponent's inactivity. It confirms that the High Court has inherent jurisdiction to regulate its own processes but will exercise this discretion carefully, considering all relevant circumstances including the conduct of both parties.