The first respondent purchased immovable property (Stand No. 2346 Bannockburn Township) from the applicant under an agreement dated 28 September 2013. Following a dispute over the applicant's cancellation of the sale agreement, the first respondent instituted proceedings under Case No. HC 3053/15 on 2 April 2015, seeking specific performance. The applicant filed opposition on 26 April 2015, the first respondent filed an answering affidavit on 26 May 2015, and a supplementary affidavit on 6 May 2019. No further papers were filed until 28 May 2021, when the applicant filed an application for dismissal for want of prosecution under Order 32 r 236(4)(b) of the High Court Rules, 1971. The applicant alleged that the first respondent had neglected to prosecute his case for periods exceeding 2 years. However, evidence revealed extensive settlement negotiations between the parties from July 2015 to April 2021, during which the applicant's former legal practitioners requested that the matter be held in abeyance. The first respondent had paid the full purchase price (USD 46,927.00), and parties had agreed he would retain the property. These material facts were not disclosed in the applicant's founding affidavit.
1. The application dismissed. 2. The applicant to bear the respondent's costs on the legal practitioner and client scale.
The duty of uberrima fides (utmost good faith) requiring full and candid disclosure of all material facts to the court applies not only to ex parte applications but also to ordinary motion proceedings. A litigant who deliberately conceals material information from the court is unworthy of the court's protection and assistance, as such conduct undermines the integrity of the court and constitutes abuse of process. Where defects or omissions in an application go to the root of the application and border on bad faith, the proper remedy is dismissal rather than striking off the roll. Material facts include those that would give a different complexion to the matter and affect the court's determination, even if those facts are adverse to the applicant's case. Settlement negotiations and agreements to hold litigation in abeyance constitute material facts that must be disclosed in an application for dismissal for want of prosecution.
The court expressed agreement with the views of MAFUSIRE J in Nehanda Housing Co-operative Society v Simba Moyo HH 987/15 that there is no cogent justification for restricting the uberrima fides rule strictly to ex parte applications, notwithstanding contrary South African appellate authority in Trakman's case. The judge observed that the underlying reason for non-suiting applicants who conceal material information is to protect the court's integrity and prevent abuse of its process, which applies equally to all forms of proceedings. The court noted that there are several instances where a litigant's infraction or misconduct is so gross as to warrant withdrawal of jurisdiction, including: coming to court with dirty hands, contempt of court, and continuously overburdening the court with frivolous or spurious suits. The court remarked that the applicant's conduct amounted to "no great act of bad faith and unethical behavior in business" by pretending to settle the matter, receiving full payment, then seeking dismissal without communicating abandonment of negotiations.
This case is significant in Zimbabwean civil procedure jurisprudence for extending the principle of uberrima fides (utmost good faith) beyond ex parte applications to ordinary motion proceedings. It establishes that litigants must disclose all material facts, including those adverse to their position, even in inter partes matters. The judgment reinforces that concealment of material facts, particularly facts that explain apparent delay or inaction, constitutes abuse of process warranting dismissal and punitive costs. The case demonstrates judicial willingness to dismiss (rather than merely strike off) applications where defects go to the root of the matter, preventing recycling of defective applications. It serves as a strong deterrent against tactical litigation and manipulation of court processes through selective disclosure of facts.