Julius Mposelwa v Leochiwe Trading (Pvt) Ltd t/a Kalambeza Safaris and Others

This was a partly-heard civil trial matter with a disturbing chequered history characterized by delays. The trial commenced before Ndou J in October 2010, with only limited evidence adduced from the plaintiff. The matter was subjected to several postponements. On 16 October 2014, the trial resumed with plaintiff's evidence being led. When the matter was set down for continuation on 24 November 2014, the 2nd and 3rd defendants failed to attend. Their legal practitioner sent Mr Ngwenya to seek a postponement on the basis that the 2nd and 3rd defendants were out of the country. The plaintiff was seriously ill and wanted the matter brought to finality. The plaintiff opposed the postponement, citing previous instances where the matter was postponed at the behest of the defendants, and requested an order in his favour with costs. The matter concerned a property dispute, with the defendants in possession of the property subject-matter of the litigation.

• Whether a postponement should be granted where defendants failed to attend trial and sought a postponement at the eleventh hour
• Whether the court should exercise its discretion to grant an indulgence of a postponement in circumstances of repeated delays
• Whether the matter should be determined on default or postponed for continuation
• Whether costs should be awarded against the absent defendants

The matter was postponed sine die. The parties were directed to urgently meet the Deputy Registrar to find a convenient date for continuation of the trial in April 2015. The 2nd and 3rd defendants were ordered to bear wasted costs for the hearing of 24 November 2014.

The granting of a postponement is in the nature of an indulgence and lies entirely in the court's discretion. A court should be slow to refuse postponement where the true reason for non-preparedness has been fully explained and is not due to delaying tactics, and where justice demands further time for presenting a case. However, where a party exhibits a cavalier attitude towards litigation by leaving it to the eleventh hour to seek a postponement without convincing reasons, the court may grant the postponement in the interests of finality on the merits but order wasted costs against the defaulting party. A party who appears when hearing starts but thereafter withdraws or absents himself must generally be accounted a defaulter, though the application for postponement may cause the issue of default to fall away.

The court observed that granting an order by default (as requested by the plaintiff) might not achieve true finality as it would likely open the matter to unnecessary further litigation such as applications for rescission. The court noted its concern about the delay in the matter and took practical steps by discussing with the Honourable Judge in charge to secure an early trial date in April 2015. The court commented on the defendants' cavalier attitude towards the litigation and found their explanation for non-attendance (that their legal practitioner was making frantic efforts to secure their attendance) unconvincing. The court emphasized that it is better to conclude matters on the merits rather than by default judgment.

This case illustrates the High Court of Zimbabwe's approach to managing civil litigation characterized by persistent delays and the court's discretion in balancing the need for finality against the desirability of deciding matters on their merits. It demonstrates judicial case management in circumstances where a party seeks postponement at the last moment, and the circumstances under which courts will grant indulgences while imposing cost sanctions for dilatory conduct. The judgment emphasizes the importance of avoiding default judgments that may lead to further litigation while still holding parties accountable for cavalier attitudes toward litigation through cost orders.