Reverend Clement Nyathi and Others v Elliot Ncube and Others

The applicants sought a provisional order to stay execution of a High Court order (HC 822/16) issued by Bere J on 12 May 2016, which directed Norman Mugiya of Mugiya Macharaga Law Chambers to pay costs de bonis propriis (from his own pocket) on a legal practitioner and client scale. A provisional order was granted on 24 October 2016 staying execution pending finalization of a rescission application (HC 2559/16). The matter came before Mathonsi J on 24 February 2017 as the return date for confirmation or discharge of the provisional order. The applicants were served with the respondents' heads of argument on 9 November 2016 and were required to file their own within 10 days but failed to do so. On 23 February 2017, the applicants filed heads of argument out of time without seeking upliftment of the bar. On the return date, Mr Masamvu appeared for the applicants (though his firm had not assumed agency and the record showed different legal practitioners) and sought a postponement on the basis that Mr Mugiya had lost a relative. Mr Masamvu had no documents and had only received instructions the previous day.

• Whether a postponement should be granted where the applicants were barred in terms of Rule 238(2b) for failure to file heads of argument timeously
• Whether heads of argument filed out of time without seeking upliftment of the bar could cure the procedural default
• Whether a legal practitioner without proper agency could appear and seek a postponement
• Whether the provisional order should be confirmed or discharged
• Whether costs should be awarded against the applicants or their legal practitioner de bonis propriis

The application for postponement was dismissed. The provisional order granted on 24 October 2016 was discharged. The application (HC 2638/16) was dismissed with costs against the applicants.

Where an applicant fails to file heads of argument within the time prescribed by the court rules, the applicant becomes barred in terms of Rule 238(2b) and can only be given audience to make an application for upliftment of the bar. Filing heads of argument out of time without seeking upliftment of the bar does not cure the procedural default. A party that is barred cannot proceed with its application or obtain a postponement on other grounds without first successfully applying for upliftment of the bar. Where litigants actively participate in launching proceedings (by deposing to founding and supporting affidavits) aimed at staying execution of a costs order against their legal practitioner, costs may be awarded against the litigants themselves rather than the legal practitioner de bonis propriis.

The court made observations about professional etiquette, noting that providing only 10 minutes' notice of an intended postponement application does not accord with the professional etiquette for which the noble legal profession is well-known. The court also noted the irregularity of a legal practitioner appearing without proper assumption of agency while the legal practitioners of record had not renounced agency. The judge expressed sympathy for Mr Mugiya's loss of a relative while nevertheless refusing the postponement on procedural grounds. The court engaged in a discussion (described as 'war stories') with counsel regarding whether costs should be awarded against the legal practitioner or the applicants themselves, ultimately persuading counsel to seek costs against the applicants given their active participation in the proceedings.

This case demonstrates the strict application of court rules regarding compliance with procedural requirements, particularly Rule 238(2b) concerning the filing of heads of argument. It illustrates that failure to comply with such rules results in being barred from proceeding, and that parties cannot obtain audience without first seeking upliftment of the bar. The case also highlights principles regarding when costs should be awarded against litigants versus their legal practitioners de bonis propriis, particularly where the litigants themselves actively participated in launching proceedings that were primarily aimed at protecting their legal practitioner from a costs order. It reinforces the importance of proper assumption of agency and professional etiquette in legal practice, including timely notification of postponement applications.