Nyarai Mudungwe and Witness Mudungwe v Rhodian Photo and Arosume Property Development (Pvt) Ltd and The Minister of Local Government and Public Works (Consolidated with Arosume Property Development (Pvt) Ltd v Rhodian Photo and Others)

The dispute concerned rights, title and interest in Stand 194 Carrick Creagh Township, located in a township development administered by Arosume Property Development under the regulatory authority of the Minister of Local Government. Rhodian Photo claimed priority rights to the stand and obtained a provisional order on 26 May 2021 (HC 2258/21) barring development on the land. This order was confirmed in default with amendment by Mangota J on 21 July 2021, effectively granting Rhodian the declaratur he had sought in his earlier application HC 4936/20. The Mudungwes (31 August 2021) and Arosume Property (1 September 2021) filed separate applications for rescission of this default judgment, which were consolidated. The applicants alleged that Rhodian's legal practitioners deliberately obtained judgment during a settlement negotiation moratorium, which Rhodian denied. Rhodian raised several preliminary objections including that the relief sought was incompetent and that there was material non-disclosure by the applicants.

• Whether the preliminary objections (points in limine) raised by the first respondent should be determined separately or deferred to be heard with the merits
• Whether legal practitioners may properly depose to affidavits on behalf of their clients
• The proper approach to points in limine that are intertwined with the merits of the matter
• Whether the relief sought in the rescission applications was competent
• Whether there was material non-disclosure by the applicants

The ruling on the points in limine was deferred for determination with the merits in the main matter. Costs were ordered to be costs in the cause. The parties were permitted to set the matter down for argument on the merits should they be so advised.

Where points in limine are intrinsically woven into the merits of a matter and cannot be crisply severed from the substantive issues, the court may properly adopt a "rolled over" approach and defer determination of the preliminary objections until after the matter has been exhaustively argued on the merits. This holistic approach avoids piecemeal judgments and allows for efficient disposal of matters. Points in limine should only be raised where they are meritorious and likely to dispose of the matter; raising them as a matter of routine or fashion wastes court time and may attract punitive costs orders against legal practitioners personally.

The court made significant observations about the undesirability of piecemeal judgments and the regurgitation of facts already traversed. Chilimbe J emphasized that legal practitioners deposing to affidavits on behalf of clients raises disquiet from a propriety and ethics perspective, though it may be justified in exceptional circumstances where facts are within the practitioner's knowledge. The judge strongly criticized the practice of raising points in limine simply as a matter of fashion, observing that litigants afraid of the merits or legal practitioners lacking confidence in their client's defense should not make endless preliminary objections in hope of a favorable ruling by chance. The court indicated that in future it may be necessary to rein in legal practitioners who abuse the court process by ordering them to pay costs de bonis propriis (from their own pocket).

This case is significant in South African (and Zimbabwean) procedural law for reinforcing the "rolled over" approach to points in limine that cannot be separated from the merits. It provides judicial guidance on the proper use of preliminary objections and warns against their abuse as a delaying tactic. The judgment also addresses the propriety of legal practitioners deposing to affidavits on behalf of clients, reaffirming that this should only occur in exceptional circumstances where facts are within the practitioner's knowledge. The case serves as a stern warning to legal practitioners about raising unmeritorious points in limine as a matter of routine, with the potential consequence of personal cost orders.