NMB Bank Limited v Maxorcarter (Private) Limited

Following a judgment in favour of the applicant (NMB Bank Limited), the respondent's (Maxorcarter (Private) Limited) immovable property was sold in execution and the sale was confirmed by the Sheriff. The property had been turned into commercial lodges offering accommodation to the public. The respondent filed an application (HC 1552/14) to set aside the Sheriff's decision confirming the sale. The applicant filed a notice of opposition, and the respondent filed an answering affidavit. Thereafter, the respondent took no further action for eight months, leaving the matter dormant while continuing to occupy and utilize the property. The applicant then brought an application for dismissal of the respondent's application for want of prosecution in terms of Order 32 r 236(4)(b).

• Whether the respondent's application to set aside the Sheriff's confirmation of sale should be dismissed for want of prosecution under Order 32 r 236(4)(b)
• Whether the court should exercise its discretion to allow the main matter to proceed despite the respondent's failure to set down the matter within the prescribed one-month period
• Whether the court should invoke Order 1 r 4C to condone the respondent's delay

The application for dismissal for want of prosecution was granted. The respondent's application in HC 1525/14 to set aside the Sheriff's confirmation of sale was dismissed with costs.

Under Order 32 r 236(4)(b), where an applicant has failed to set down a matter for hearing within one month of filing an answering affidavit, the court may dismiss the matter for want of prosecution. The court's discretion to refuse dismissal or to condone delay under Order 1 r 4C can only be exercised where there is a proper factual basis and explanation for the delay. The prospects of success in the main matter are not relevant to an application for dismissal for want of prosecution. The principle vigilantibus non dormientibus jura subveniunt applies - the law assists the vigilant, not those who sleep on their rights.

The judge expressed strong criticism of the respondent's counsel for mounting and persisting with a patently spurious opposition. The judge noted that he would have readily granted costs on the higher scale and de bonis propriis (personally against the legal practitioner) had the applicant asked for them. The judge also observed that the eight-month delay was highly profitable to the respondent, who continued to occupy and utilize the commercial property without paying rent while it actually belonged to the successful bidder at auction. The judge commented that good prospects of success "tucked in a drawer somewhere are no good to the respondent" and ought to have been brought to court and ventilated there.

This case reinforces the importance of adherence to procedural time limits in Zimbabwean civil procedure, particularly the requirement under Order 32 r 236(4) that an applicant must set down a matter for hearing within one month of filing an answering affidavit. It demonstrates that courts will not exercise discretion to condone delays in the absence of any explanation for non-compliance, and that good prospects of success in the main matter are irrelevant where a party has failed to prosecute its case. The case serves as a warning to legal practitioners against mounting spurious oppositions and emphasizes the principle that the law assists the vigilant, not the sluggard.