Juliet Mtetwa and Ephraim Mtetwa v Benbert Investments (Pvt) Ltd

The applicants filed a court application on 5 April 2018 and served it on the respondent on 16 April 2018. They filed their answering affidavit on 11 July 2018 and served it on 12 July 2018. However, the applicants failed to file their heads of argument within the stipulated period of one month after serving the answering affidavit, and did not set the matter down for hearing as required by Rule 236 of the High Court Rules. The respondent then filed an application for dismissal for want of prosecution under Order 32 Rule 236(4)(b). On 29 October 2018, Moyo J granted the application for dismissal in chambers. The applicants then sought rescission of this judgment under Order 49 Rule 449, arguing that the judgment was granted in error because the matter was opposed (a notice of opposition was on record) and that the chamber application was wrongly headed "High Court Harare" instead of "High Court Bulawayo".

• Whether the application for rescission of judgment was properly before the court
• Whether an automatic bar operated against the applicants due to their failure to comply with the High Court Rules
• Whether the applicants were required to first seek condonation and removal of the automatic bar before filing the rescission application
• Whether Rule 449 of the High Court Rules could be invoked in the circumstances

The application for rescission of judgment was dismissed with costs.

Where a litigant fails to file heads of argument within the prescribed period under Rule 236 of the High Court Rules or to set down a matter for hearing, an automatic bar operates against that party preventing the filing of any further pleadings or documents. Before such a party can file an application for rescission of judgment or any other application, they must first seek removal of the automatic bar through an application for condonation. Any documents filed while the automatic bar is in operation, including a notice of opposition, are of no legal consequence. An application for rescission under Rule 449 cannot be invoked to circumvent the requirement to first remove an automatic bar arising from non-compliance with procedural rules.

The court observed that the applicants could have approached the respondent seeking consent to allow for the upliftment of the automatic bar, but failed to do so. The court also noted that even the peripheral issue raised by the applicants regarding the heading on the chamber application ("High Court Harare" instead of "High Court Bulawayo") had no merit since the documents were properly stamped by the Registrar at Bulawayo and served in accordance with the rules. The court emphasized that litigants who are sluggish in handling matters and are the authors of their own misfortune should face consequences. The court characterized the applicants' conduct as an attempt to obfuscate issues and avoid dealing with the removal of the automatic bar, describing it as "an exercise in mischief".

This case reinforces the strict application of procedural rules in Zimbabwean civil litigation, particularly regarding automatic bars that operate when litigants fail to comply with time limits prescribed in the High Court Rules. It emphasizes that parties who are subject to an automatic bar must first seek removal of that bar and obtain condonation before filing any further pleadings or applications. The judgment demonstrates that courts will not entertain attempts to circumvent procedural requirements by mischaracterizing applications or raising peripheral issues. It serves as a warning to litigants about the consequences of negligent conduct and failure to comply with court rules.