Kingstone Ringisai Makarichi v Agnes Mabvunza

The applicant issued summons against the respondent in HC 13081/12 in 2012. The matter was set down for pre-trial on 10 September 2014, but both parties defaulted and the matter was struck off the roll. The applicant waited until September 2019 to set the matter down for pre-trial again. The respondent drew his attention to Practice Direction 3/2013 regarding the procedure to follow where matters have been struck off the roll. Despite this, the applicant proceeded to seek set down for pre-trial and filed an application to compel the respondent to file discovery, pre-trial documents, and attend a round table conference. The applicant argued that since his matter was struck off when it was not fatally defective (but rather for non-appearance), it was not necessary to seek reinstatement. The applicant had actually applied for reinstatement on 12 July 2019 but withdrew that application on 9 October 2019.

• Whether the application was fatally defective for failing to conform to the correct form (Form 29 versus Form 29B) as required by Rule 230
• Whether the application was properly before the court given that the main matter HC 13081/12 had been struck off the roll and no valid application for reinstatement had been made
• The proper interpretation and application of Practice Direction 3/2013 regarding the terms 'struck off the roll', 'postponed sine die', and 'removed from the roll'
• Whether a matter struck off the roll for non-appearance (rather than for being fatally defective) requires reinstatement before further proceedings can be taken

The application was dismissed with costs on the scale of legal practitioner and client.

Once a matter has been struck off the roll by court order, it is no longer before the court and remains struck off until that order is varied, corrected, or set aside, or until a proper application for reinstatement is granted. An order of court remains valid and enforceable, whether or not it is erroneous, until it is varied or set aside. A party cannot simply ignore or reinterpret a court order; the proper recourse is to seek formal correction or variation of the order. Under Practice Direction 3/2013 (effective 1 January 2014), the term 'struck off the roll' has a specific meaning and effect distinct from 'removed from the roll', and orders made after this date must be interpreted in accordance with the Practice Direction. Where a matter has been struck off the roll, no further proceedings (including applications to compel filing of pre-trial documents) can be entertained until the matter is properly reinstated before the court.

The court observed that in the ordinary course of events, it would have mero motu (of its own accord) rescinded the order striking the matter off the roll as it was patently not in conformity with Practice Direction 3/2013, since the matter was not struck off for being fatally defective but rather for non-appearance of both parties. However, the applicant's conduct - including his lack of diligence from 2014 to 2019, his withdrawal of the reinstatement application, and his persistence with the current application despite being advised of the difficulties - required that he make a formal application to explain his apparent lack of diligence. The court also noted that Practice Direction 3/2013 was promulgated specifically to remove the confusion created by the interchangeable use of terms 'struck off the roll' and 'removed from the roll' that existed prior to 1 January 2014, which was the situation in the earlier Bobby Maparanyanga case.

This case is significant in Zimbabwean civil procedure for clarifying the application and interpretation of Practice Direction 3/2013. It reinforces the principle that once a matter has been struck off the roll, it is no longer before the court and requires formal reinstatement through a court order before further proceedings can be taken. The case emphasizes that court orders remain valid and enforceable until properly varied or set aside, regardless of whether they may have been erroneously made. It also demonstrates the court's willingness to award costs on the higher legal practitioner and client scale where a party persists with proceedings showing wanton disregard for the rules and lack of diligence, particularly after being properly advised of procedural defects. The judgment clarifies that after the promulgation of Practice Direction 3/2013 on 1 January 2014, the terms 'struck off the roll' and 'removed from the roll' have distinct meanings and cannot be treated as interchangeable.