Nickson Mlambo v One Thousand Construction (Private) Limited and Others

The Applicant approached the High Court seeking substitution of the 3rd Defendant in case number HCH1588/21, who had been improperly cited. Specifically, the Applicant sought to substitute Unicast Investment (Private) Limited as the 3rd Defendant in the main matter. On 3 December 2025, all parties were directed by the Registrar to file heads of argument. The Applicant filed heads of argument on 9 December 2025. The 3rd Respondent failed to file heads of argument timeously. A notice of set down was generated on 2 February 2026 for a hearing on 17 March 2026. On the hearing date, the 3rd Respondent's counsel sought a postponement to file heads of argument, having only discovered on the day of hearing that they had not been filed. The 3rd Respondent's counsel explained she had been on maternity leave and that an alternative legal practitioner assigned to the matter was unwell with a leg strain. The 3rd Respondent became automatically barred under Rule 39(4) of the High Court Rules for failure to file heads of argument, and applied for upliftment of the bar.

• Whether the 3rd Respondent established good and sufficient cause for the upliftment of the bar
• Whether the requirements for condonation for late filing of heads of argument were met
• What constitutes good and sufficient cause in applications for upliftment of the bar
• Whether the substitution of the 3rd Defendant in the main matter should be granted

A. The oral application for the upliftment of the bar was dismissed. B. Default judgment was entered against the 3rd Respondent for its failure to file heads of argument within the prescribed time lines. C. The application was deemed to be unopposed. D. The application for substitution of a party was granted. E. The 3rd Respondent (Unicast Investment (Private) Limited) was substituted as the 3rd Defendant in HCH 1588/21. F. No order as to costs.

For an application for upliftment of a bar (or condonation for late filing) to succeed, an applicant must establish good and sufficient cause by considering cumulatively: (1) the extent of the delay; (2) the explanation for that delay; and (3) the strength of the applicant's case or prospects of success. All three elements must be addressed satisfactorily. Unsubstantiated oral allegations without supporting evidence do not constitute a reasonable explanation for delay. A party who has been notified on multiple occasions of the need to comply with procedural requirements and fails to act demonstrates a lack of seriousness that warrants dismissal of the application for upliftment. Condonation is an indulgence that must be earned through proper application and substantiation, not granted automatically.

The court remarked that litigants must be reminded to treat court business with a high degree of seriousness. The court observed that a serious legal practitioner cannot come to court and allege discovery of non-filing only on the day of hearing. The court noted that a three-month period is a very long time to fail to file heads of argument in the absence of a satisfactory explanation. The court commented that the electronic platform generates notifications for new developments in cases, suggesting that the 3rd Respondent ought to have been aware of the Applicant's filing of heads of argument. The court expressed the view that ignoring notifications on three occasions demonstrated that the 3rd Respondent was not prioritizing the matter, representing a lackadaisical approach that must be followed with appropriate consequences.

This case reinforces the strict approach Zimbabwean courts take toward compliance with procedural rules and timelines. It demonstrates that applications for upliftment of bars and condonation for late filing require substantiated evidence and proper legal justification. The judgment emphasizes that legal practitioners must treat court business with a high degree of seriousness and cannot rely on unsubstantiated oral explanations for non-compliance. The case serves as a warning that courts will not tolerate lackadaisical approaches to procedural obligations, particularly where parties have been given multiple reminders. It also clarifies the operation of Rule 39(4) of the High Court Rules regarding the consequences of being barred and the requirements for removal of such bars.