Kevin O Toole v YZ Holdings (Pvt) Ltd

The Respondent issued a summons against the Applicant on 21 September 2018 claiming payment of $754,962.21 for unjust enrichment. The action was defended and proceeded to the Pre-Trial Conference (PTC) stage in 2019. Multiple PTCs were held before Musakwa J between May and November 2019, with repeated postponements to enable document exchange and attempts at mediation. The parties failed to agree on a mediator and costs sharing. On 8 July 2021, the matter was removed from the roll by Kwenda J for non-payment of security costs. On 13 July 2021, the Registrar notified parties of the removal. The Applicant's lawyers then wrote on 28 July 2021 claiming a judge had directed a forensic audit be conducted, which the Respondent disputed. On 22 September 2021, the Applicant applied for dismissal of the main action for want of prosecution. On 11 October 2021, the Respondent applied for a new PTC date, which was set for 12 November 2021, when Kwenda J directed a forensic audit be carried out.

• Whether Rule 31(3) of the High Court Rules, 2021 applies to matters at the PTC stage
• Whether the Respondent/Plaintiff had taken further steps to prosecute the action after filing of the plea
• Whether there was inordinate delay by the Respondent in prosecuting the main action warranting dismissal
• Whether a judge's directive for a forensic audit was given in November 2019 as alleged by the Applicant

The application for dismissal of the action in HC 8645/18 for want of prosecution was dismissed with costs.

Rule 31(3) of the High Court Rules, 2021 applies only to situations where a plaintiff has done nothing to prosecute a matter within one month after filing of a plea and before the PTC stage. Once a matter reaches the PTC stage, the responsibility to advance the action to trial is shared among all parties pursuant to Rule 49(1). Non-compliance with a judge's directive given at a PTC should be remedied under Rule 49(12), not Rule 31(3). For dismissal for want of prosecution to be granted, there must be clear evidence of failure to take further steps to prosecute, and the delay must be inordinate and unexplained.

The court noted, though it was not argued by either party, that court registry operations were disrupted from late March 2020 by the COVID-19 pandemic and intermittent lockdowns, which was a relevant contextual factor in assessing the reasonableness of delays. The court also observed that either party deserved their day in court and both seemed to have a fair share of prospects of success, and that the balance of convenience favoured allowing the PTC proceedings to continue rather than dismissing the action. The court made a colorful observation about delays by quoting the phrase "there is no hurry in Africa" in describing the repeated postponements at the PTC stage.

This case clarifies the scope and application of Rule 31(3) of the High Court Rules, 2021 in Zimbabwean civil procedure. It establishes that Rule 31(3) is limited to the period after filing of a plea but before the PTC stage, and does not apply once a matter has entered the PTC process. The case demonstrates the court's approach to assessing whether a plaintiff has taken sufficient steps to prosecute an action, considering contextual factors such as pandemic-related disruptions to court operations. It also emphasizes that alleged non-compliance with judicial directives at PTC stage should be addressed through Rule 49(12) rather than Rule 31(3). The judgment reinforces the principle that both parties share responsibility for moving matters to trial once the PTC stage is reached.