Patrick Dube v The State and S. Ndlovu N.O.

The applicant appeared before a magistrate at Entumbane, Bulawayo, charged with contravening section 113 of the Criminal Law (Codification and Reform) Act Chapter 9:23 (theft of trust property). He pleaded not guilty and a full trial was conducted with five State witnesses. At the close of the State's case, the applicant applied for discharge, but the magistrate found a prima facie case had been made out and ordered the applicant to present his defence. The applicant filed a review application on 20 June 2019, which was dismissed by Mabhikwa J on 21 May 2020. The applicant appealed to the Supreme Court (SC-42-20), which allowed the appeal on 30 July 2020 and remitted the matter for determination before a different judge with both parties to be afforded an opportunity to make submissions. Subsequently, applicant's counsel enrolled the matter on the unopposed roll on 6 August 2020, seeking to bar the respondent for non-compliance with Rules 232 and 233 of the High Court Rules.

• Whether the respondent was barred from being heard due to alleged non-compliance with Rules 232 and 233 of the High Court Rules
• Whether the matter could properly be set down on the unopposed roll in light of the Supreme Court order requiring both parties to be afforded an opportunity to make submissions
• The proper procedural approach to dealing with a matter remitted by the Supreme Court with directions for both parties to be heard

The matter was removed from the roll of unopposed matters with no order as to costs.

When a superior court remits a matter with an order that both parties be afforded an opportunity to make submissions, that order requires the matter to be treated as opposed and both parties must be given a hearing. A party cannot rely on earlier procedural non-compliance to bar the other party from being heard when a superior court has specifically ordered that both parties be afforded an opportunity to make submissions. It is procedurally irregular and improper to set a matter on the unopposed roll when a superior court order fundamentally and essentially requires the matter to be opposed by directing that both parties be heard.

The court observed that if the applicant wished to rely on the respondent's alleged failure to comply with the High Court Rules, the proper procedure would have been to set the matter down on the opposed roll and then apply for the matter to be dealt with as unopposed in view of the respondent's non-compliance, essentially applying for a default judgment. This would have allowed the respondent the opportunity to apply for upliftment of the bar if it wished, and would have complied with the Supreme Court order requiring both parties to be afforded an opportunity to make submissions.

This case illustrates important principles regarding procedural compliance following appellate court orders. It establishes that where a superior court remits a matter with specific directions that both parties be afforded an opportunity to make submissions, the parties cannot circumvent that order by relying on earlier procedural defaults to deny the other party a hearing. The case reinforces that compliance with superior court orders takes precedence over previously existing procedural bars, and that matters remitted with directions for both parties to be heard are fundamentally opposed in nature and must be set down accordingly.