The applicant (NSSA) brought an urgent chamber application seeking a provisional order staying execution of an order and warrant of execution issued in case HC 4499/14 pending determination of case HC 5001/14. The final relief sought was to have the order in HC 4499/14 declared a nullity and set aside on account of having been issued in error. The application was opposed and argued before the court. After hearing arguments, the judge reserved judgment on 26 August 2014. Two days later, on 28 August 2014, the applicant filed a Supplementary Affidavit purporting to act in terms of Rule 246, seeking to correct and clarify issues relating to the date on which the NSSA Board last sat. The notice sought to reverse a concession made by applicant's official Mr. Takawira that the NSSA Board's term of office expired in July 2013. The date of the Board's expiry was critical in determining the authenticity and legality of the board members' conduct in relation to the case. This supplementary affidavit was filed after the closure of the case and without first applying for the reopening of the closed case.
1. The supplementary affidavit filed by the applicant on 28 August was held to be inadmissible. 2. The application was dismissed with costs.
Rule 246 of the High Court Rules does not confer a right on a party to file supplementary affidavits or evidence after closure of the case without first applying for and obtaining an order reopening the case. The rule vests discretion in the presiding judge to call for supplementary evidence when absolutely necessary for clarification. An application stands or falls on the papers filed of record, and parties cannot file additional papers after closure of their case without first reopening the case. The procedure of filing supplementary affidavits after closure to reverse concessions or adjust one's case is impermissible as it is alien to Rule 246, undesirable, and leads to injustice by allowing improper adjustment of a party's case to the detriment of the opposing party.
The court made the observation that judicial officers prefer to determine matters on the basis of evidence placed before them without going out of their way to hunt for evidence, as judges are neutral arbiters who prefer that each party be responsible for prosecuting its own case unaided by the judge. The court also used the analogy that "one cannot enter a closed door without first opening the door" to illustrate the logical impossibility of filing papers after closure of a case without first reopening it. The court colorfully described the impermissible procedure as allowing a party to "panel beat, shift and adjust its case" and as "shifting goal posts at the end of the game."
This case establishes important principles regarding the finality of proceedings and the limits on parties' ability to supplement their cases after closure of argument. It clarifies the proper interpretation and application of Rule 246 of the High Court Rules, emphasizing that this rule does not grant parties an automatic right to file supplementary evidence after closure, but rather vests discretion in the presiding judge. The case reinforces the principle that parties cannot adjust or "panel beat" their cases after closure, and that concessions made during argument cannot simply be reversed by filing supplementary papers after judgment has been reserved. This promotes certainty, fairness, and finality in civil procedure.