N. Svova & Others v National Social Security Authority

The appellants were tenants occupying flats at St Tropez Apartment Block owned by the respondent (NSSA). Their lease agreements expired in 2000, after which they were given an option to purchase the flats. The appellants exercised the option but failed to pay the purchase price by the stipulated date of 31 July 2000. The respondent subsequently sought to evict the appellants. The appellants brought an action for specific performance in HC 4633/05, which was dismissed. Their appeal to the Supreme Court in SC 19/10 was equally unsuccessful, with the Court holding that NSSA had not waived its right to cancel the agreement when the appellants failed to pay the purchase price by the set date. The respondent then applied for summary judgment for eviction in the High Court, which was granted on 4 September 2013. The appellants failed to provide security to the Registrar as required under Rule 66 and failed to file heads of argument, resulting in a bar against them. They sought a postponement to file an application to uplift the bar, which was refused by the court a quo.

• Whether the High Court misdirected itself in refusing the application for postponement to allow filing of a chamber application for upliftment of a bar
• Whether the High Court erred in proceeding to deal with the matter on the merits when security had not been provided to the satisfaction of the Registrar in terms of Rule 66
• Whether the option granted to the appellants remained open and exercisable, and whether the resultant agreement had been cancelled
• Whether the principle of lis alibi pendens precluded the granting of summary judgment
• Whether the appeal was frivolous and vexatious so as to warrant costs on a higher scale de bonis propriis against the appellants' legal practitioners

The appeal was dismissed with costs on the ordinary scale.

The binding legal principles established are: (1) Where a prior Supreme Court judgment has determined the substantive rights of parties in relation to the same subject matter, lower courts are bound by that determination and parties cannot relitigate those issues through subsequent proceedings; (2) Under Rule 66 of the High Court Rules, 1971, a defendant facing summary judgment must either (a) give security to the satisfaction of the Registrar, or (b) satisfy the court by affidavit that there is a bona fide defence - failure to provide security as required means the court must proceed to determine whether there is a bona fide defence; (3) Rule 238(2)(b) empowers the High Court to deal with a matter on the merits or direct it to be set down on the unopposed roll where required heads of argument are not filed within the specified period; (4) Applications to adduce further evidence on appeal must meet the criteria established in Warren-Codrington v Forsyth Trust (Pvt) Ltd 2000 (2) ZLR 377 (SC), including that the evidence could not with reasonable diligence have been obtained at trial, that it is apparently credible, and that it would probably have an important influence on the result; (5) The principle of finality in litigation requires that matters conclusively determined by courts of competent jurisdiction not be reopened through subsequent litigation between the same parties.

The Court made several significant observations: (1) It characterized the appellants' counterclaim seeking transfer of the flats on the basis of alleged payment while simultaneously offering to pay the purchase price as 'kindergarten behaviour' and 'trifling with the court' that 'must simply stop' and 'should find no place in our courts'; (2) The Court noted that while NSSA's post-2000 conduct (particularly its statements in defending litigation by the Zimbabwe Republic Police that it was in the process of transferring the property to the appellants) was a 'significant factor' in determining costs, it was not sufficient to establish a basis for reopening the substantive dispute; (3) The Court observed that the doctrine of lis alibi pendens 'cannot defeat a summary judgment application' because 'summary judgment is available to a litigant whose claim is unanswerable and who should not be delayed by a trial for that reason'; (4) The Court reiterated that costs on the legal practitioner and client scale are 'a drastic measure, and one which should not be lightly resorted to except where the court is satisfied that there has been an attempt to abuse the process of the court or for some other good reason' and that 'there have to be exceptional circumstances to justify such an order'; (5) The Court noted that costs de bonis propriis against legal practitioners 'are only awarded in reasonably grave circumstances' and 'generally speaking, dishonesty, mala fides, wilfulness or professional negligence of a high degree fall into this category'.

This case reinforces several important principles in Zimbabwean civil procedure and contract law: (1) the importance of finality in litigation and the binding effect of prior Supreme Court determinations on the same parties regarding the same subject matter; (2) the proper application of the summary judgment procedure under Rules 64, 66, 68 and 69 of the High Court Rules, particularly the requirements for providing security to the satisfaction of the Registrar and demonstrating a bona fide defence; (3) the strict criteria for applications to adduce further evidence on appeal as established in Warren-Codrington v Forsyth Trust (Pvt) Ltd; (4) the principle that courts should not lightly award costs on the higher scale or de bonis propriis against legal practitioners, and that such orders require exceptional circumstances involving dishonesty, mala fides, wilfulness or professional negligence of a high degree; and (5) that parties cannot indefinitely relitigate matters that have been conclusively determined by higher courts, even through different procedural mechanisms.