The plaintiffs previously instituted an application (HCH4635/23) seeking declaratory orders that the 1st and 2nd defendants had fraudulently taken transfer of property owned by the plaintiffs through the aid of the 3rd defendant acting as conveyancer. The application was opposed and converted to an action on 12 April 2024 after the defendants successfully raised a preliminary point that there were material disputes of fact. On 27 May 2025, HCH4635/23 was dismissed in terms of paragraph 4 of Practice Direction No. 1 of 2025 for remaining inactive for an unreasonable period. On 4 September 2025, the plaintiffs issued fresh summons seeking essentially the same relief. The 1st and 2nd defendants raised a special plea in bar arguing that there was an extant court order dismissing the previous matter and that the plaintiffs should have applied for reinstatement rather than instituting fresh proceedings.
The special plea in bar on the grounds that there is an extant court order under HCH4635/23 was dismissed with costs.
Where a matter is dismissed in terms of paragraph 4 of Practice Direction No. 1 of 2025 for inactivity, the dismissal is not on the merits. The remedy of reinstatement provided in paragraph 5 of the Practice Direction is optional and does not prohibit a party from instituting fresh proceedings based on the same cause of action. A party whose matter has been dismissed under the Practice Direction has three options: (1) do nothing; (2) apply for reinstatement; or (3) refile/reinstitute the action. Practice Direction 1 of 2025, while binding and having legal force, does not close the door to parties choosing to reinstitute fresh process rather than applying for reinstatement.
The court observed that the special plea raised by the defendants was unusual in that it had no established name - it was neither res judicata (because the matter was not dismissed on the merits) nor lis pendens (because the dismissed matter was not a live case), but was only described as being 'akin to lis pendens'. The court also noted that it did not matter that the current case introduced the issue of damages or included an additional defendant when considering the scope of the cause of action.
This judgment provides important clarification on the interpretation of Practice Direction No. 1 of 2025 in Zimbabwe. It establishes that dismissal of a matter for inactivity under the Practice Direction does not preclude a party from instituting fresh proceedings on the same cause of action. The case clarifies that the remedy of reinstatement provided in paragraph 5 of the Practice Direction is optional rather than mandatory, and that parties have multiple choices when their matter is dismissed for inactivity. This has significant implications for litigants whose matters have been dismissed under the Practice Direction, as it confirms they are not restricted to the reinstatement procedure alone.