Lenin Makechemu Ngwaru v Watson Gara

The plaintiff issued summons on 27 August 2021 against the defendant claiming USD$25,000 as a refund of money paid to the defendant for the purchase of a residential stand, as well as USD$25,000 in damages for breach of contract and costs. Pleadings were filed and closed, and parties held a pre-trial round table meeting on 7 February 2022, drafting and signing joint pre-trial conference minutes. The Registrar gave the parties three days' notice to attend a pre-trial conference on 7 July 2022. At the hearing, the plaintiff was not physically present but was represented by his legal practitioner and another witness. The plaintiff was based in the United States of America and argued that three days was insufficient time to make travel arrangements to attend the conference in Zimbabwe.

• Whether three days' notice to attend a pre-trial conference constitutes 'reasonable notice' under Rule 49(8) of the High Court Rules 2021
• Whether the plaintiff's non-attendance at the pre-trial conference constituted willful default justifying dismissal of the claim under Rule 49(12)
• Whether the court should exercise its discretion to dismiss the claim or make an alternative appropriate order

1. The application to dismiss plaintiff's claim is dismissed. 2. The matter is referred to trial on the basis of the joint Pre-Trial Conference Minute filed of record. 3. There is no order as to costs.

Three days' notice to attend a pre-trial conference does not constitute "reasonable notice" under Rule 49(8) of the High Court Rules 2021 where a party is based outside Zimbabwe and requires time to make international travel arrangements. The use of the word "may" in Rule 49(12) confers discretion on the court to make an appropriate order rather than automatically dismissing a claim where a party fails to attend a pre-trial conference but is not in willful default. Non-attendance at a pre-trial conference due to insufficient notice and practical impediments to attendance does not constitute willful default.

The court noted that the plaintiff's legal practitioner, who is based in Zimbabwe, managed to attend on the plaintiff's behalf, and that the parties had already signed a joint pre-trial conference minute that adequately captured the issues for trial. These factors supported the court's exercise of discretion in favor of allowing the matter to proceed to trial rather than dismissing the claim on procedural grounds.

This case provides important guidance on the interpretation of "reasonable notice" under Rule 49(8) of the High Court Rules 2021, particularly in circumstances where a party resides outside Zimbabwe. It demonstrates the court's willingness to exercise discretion under Rule 49(12) to make appropriate orders rather than automatically dismissing claims where parties fail to physically attend pre-trial conferences due to circumstances beyond their control. The judgment emphasizes that procedural rules must be applied reasonably and fairly, taking into account practical considerations such as international travel requirements.