Macquire Farming (Private) Limited v Twairob Investments (Private) Limited

The applicant sought confirmation of a provisional order placing the respondent under provisional judicial management. The application was opposed from the outset. On 8 October 2015, the matter was struck off the roll due to the applicant's non-appearance on the date of hearing, constituting failure to comply with Rule 223 requiring a litigant or attorney to attend on the date of hearing. The applicant did not seek reinstatement within thirty days as required by Practice Direction 3/13, nor did it seek to do so beyond the thirty days. Despite this, the applicant attempted to re-enroll the matter without following the proper reinstatement procedure. The respondent opposed the hearing on the basis that the matter was not properly before the court and that Practice Direction 3/13 had not been complied with.

• Whether a matter struck off the roll for non-compliance with court rules can be re-enrolled without following the reinstatement procedure set out in Practice Direction 3/13
• Whether failure to seek reinstatement within thirty days results in the matter being deemed abandoned
• Whether the matter was properly before the court
• Whether costs at an attorney and client scale were justified in the circumstances

The matter was struck off the roll with the applicant ordered to bear the wasted costs at an attorney and client scale.

Where a matter has been struck off the roll for failure to comply with the rules of court, the party has thirty days within which to seek reinstatement in terms of Practice Direction 3/13, clause 5. Failure to seek reinstatement within this period results in the matter being deemed abandoned. A matter struck off the roll is no longer before the court and cannot be re-enrolled without proper reinstatement in accordance with the Practice Direction. An applicant who persists with litigation despite clear procedural defects and warnings from the court may be liable for costs at an attorney and client scale.

The court noted that the applicant had attempted to rely on a Supreme Court order, but upon examination, there was no judgment to support the applicant's position, only a court order whose circumstances were unknown. The court observed that the case the applicant sought to rely on was distinguishable because in that case the matter was not set down and fell away, rather than being set down and then struck off as in the present case. The court emphasized that the applicant had been warned that the matter was not properly before the court but chose to "forge ahead" and "force matters" instead of following proper procedure, embarking on what the court described as a "doomed mission" and a "futile mission."

This case affirms the strict application of Practice Direction 3/13 in Zimbabwe, which governs the reinstatement of matters struck off the roll. It establishes that failure to seek reinstatement within thirty days results in the matter being deemed abandoned, and that a matter cannot be re-enrolled without following proper reinstatement procedures. The case also illustrates circumstances in which costs at an attorney and client scale are justified, particularly where a party persists with litigation despite clear procedural impediments and warnings from the court.