Reverend Clement Nyathi and The Trustees of the Apostolic Faith Mission of Africa v Rosewell Zulu and Executor of the Estate Late Tony Tshuma and Registrar of Deeds Bulawayo N.O

The plaintiffs sued the defendants on 5 December 2016 seeking declarations that the first plaintiff was the lawfully appointed President and Overseer of the Apostolic Faith Mission of Africa, and that the first and second defendants had seceded from the church. They also sought orders for the defendants to relinquish control of church assets and properties. The first and second defendants filed a special plea on 26 January 2017 raising issues of prescription and locus standi. The defendants filed their heads of argument on 6 February 2017 and served them on 9 February 2017. The plaintiffs failed to file their heads of argument by the deadline of 23 February 2017 and were automatically barred from 24 February 2014. Despite being barred, the plaintiffs attempted to file a notice of withdrawal on 25 May 2017 without first applying to uplift the bar. The matter was set down for hearing on 5 July 2017, and on the day before, plaintiffs' counsel wrote indicating he had prior engagements and could not attend.

• Whether a notice of withdrawal filed while a party is barred is valid and effective
• Whether the registrar can accept documents from a barred party
• The application and effect of Order 12 and Rule 83 of the High Court Rules 1971 concerning bar procedures
• Whether the special plea should be upheld given the plaintiffs' procedural defaults

1. The special plea was upheld. 2. The plaintiffs' claim was dismissed with costs.

A notice of withdrawal filed by a party while under a bar is invalid and of no force or effect. Rule 83 of the High Court Rules 1971 is mandatory and prohibits the registrar from accepting any pleading or document from a barred party, and prohibits a barred party from appearing before court except for the purpose of applying to have the bar removed. Any document filed in contravention of Rule 83(a) is a nullity. A party who is barred must first apply for upliftment of the bar before taking any other procedural steps in the litigation.

The court observed that the plaintiffs' counsel's letter indicating prior engagements and requesting either withdrawal or postponement was conspicuously silent on whether the plaintiffs intended to deal with the matter in terms of Rule 84(1)(b). The court commented that the intended future appearance displayed a "care-free attitude which the court could not condone let alone accept." The court also noted that the registrar's conduct in accepting the notice of withdrawal was an error that should not have occurred.

This case demonstrates the strict application of the High Court Rules regarding bar procedures in Zimbabwean civil procedure. It establishes that parties who are barred cannot take any procedural steps, including filing notices of withdrawal, without first applying to uplift the bar. The case emphasizes the mandatory nature of Rule 83 and the importance of compliance with procedural requirements. It serves as a cautionary tale about the consequences of failing to file documents timeously and the ineffectiveness of attempts to circumvent the bar process.