Pathfinder International (Pvt) Ltd v The Trustees of Alexander Club

The respondent was the applicant's tenant. The parties were engaged in litigation under case number HC 5940/2010 wherein the applicant had instituted eviction proceedings against the respondent. On 26 November 2010, the respondent filed a court application seeking to amend its plea filed on 4 November 2010. The applicant filed its notice of opposition on 9 December 2010. A period of more than one month expired without the respondent prosecuting its application. The respondent failed to file an answering affidavit or set the matter down for hearing within one month as required by Rule 236(3). The respondent was occupying the applicant's premises without paying any rentals.

• Whether the respondent's application to amend its plea should be dismissed for want of prosecution due to failure to comply with Rule 236(3)
• Whether the respondent's conduct constituted an abuse of court process
• What costs order should be made given the respondent's conduct

The court application filed by the respondent in Case No. HC 8608/10 was dismissed with costs at the legal practitioner-client scale.

Where a party files a court application and the opposing party files a notice of opposition, the applicant must comply with Rule 236(3) by filing an answering affidavit or setting the matter down for hearing within one month. Failure to do so entitles the opposing party to apply for dismissal of the application for want of prosecution. Where a party's conduct in failing to prosecute an application amounts to an abuse of process and a deliberate delay tactic, the court may express its displeasure through an award of costs on the legal practitioner-client scale.

The court observed that the respondent's conduct was particularly reprehensible given that it was occupying the applicant's premises without paying rentals, suggesting that the respondent was using the amendment application as a delay tactic in the underlying eviction proceedings. The court noted that such abuse of process warrants the court expressing its displeasure through adverse costs orders.

This case demonstrates the Zimbabwean High Court's approach to enforcing procedural compliance with court rules, particularly Rule 236(3) regarding prosecution of applications. It emphasizes that failure to prosecute applications timeously will result in dismissal for want of prosecution. The case also illustrates the court's willingness to use punitive costs orders (legal practitioner-client scale) to discourage abuse of court process and delaying tactics, particularly where a party is seeking to delay eviction proceedings while occupying premises without paying rent.