Naison Naison and Others v Mupamombe Housing Project and Others

The applicants were respondents in case HC 10206/18 where a provisional order was granted on 9 November 2018 against them. The provisional order prohibited them from collecting funds for, withdrawing or transferring funds of the Mupamombe Housing Cooperative, and ordered them to surrender receipt books and financial records to the applicant's attorneys. Instead of complying with the order, the applicants' attorneys wrote a letter on 13 November 2018 requesting to negotiate the terms of compliance, asking for guarantees, and suggesting amendment of the order. The applicants then filed an urgent chamber application on 16 November 2018 seeking a stay of execution of the provisional order, claiming compliance would collapse the operations of the first respondent and disputing the standing of some respondents in the original matter.

• Whether a litigant who has not complied with a court order can approach the court for relief from that same order
• Whether the applicants approached the court with 'dirty hands'
• The application of the clean hands doctrine in urgent chamber applications
• Whether non-compliance with a court order while seeking its suspension constitutes an abuse of court process

The preliminary point was upheld and the urgent chamber application was dismissed with no order as to costs.

A litigant who has failed to comply with a court order and instead seeks to negotiate its terms or amendment cannot approach the same court for suspension or stay of execution of that order. Such conduct constitutes approaching the court with dirty hands and warrants dismissal of the application. The clean hands doctrine requires that parties seeking equitable relief must themselves have acted in accordance with law and court orders. Open defiance or non-compliance with a court order, even if admitted, precludes a litigant from obtaining relief from that same court regarding the same order.

The court made several important observations: (1) A preliminary point based on law can be raised at any stage and, if sustained, effectively disposes of proceedings; (2) There is no strict requirement to file opposing papers in urgent chamber applications - oral argument suffices; (3) However, where a respondent opts to file opposing papers, proper Notice of Opposition and Opposing Affidavits should be filed (dated and properly executed); (4) High Court litigation is serious business and requires proper compliance with procedural requirements; (5) The court has discretion to deprive a successful party of costs where there are defects in that party's papers, even where the substantive point is decided in their favour; (6) When deciding whether to dismiss or strike off an application, the court considers whether there is something substantive before it - where there is an application (even a defective one based on dirty hands), dismissal rather than striking off is appropriate.

This case reinforces the clean hands doctrine in Zimbabwean law and emphasizes that litigants must comply with court orders before seeking relief from those same orders. It serves as an important reminder that courts will not entertain applications from parties who are in open defiance of existing court orders, as this would undermine the rule of law. The case also demonstrates the court's willingness to dismiss applications (rather than merely strike them off) where the dirty hands doctrine applies, consistent with Supreme Court precedent. The judgment provides guidance on procedural requirements for opposing papers in urgent chamber applications and illustrates judicial discretion in costs orders where technical defects exist in both parties' papers.