Reverend Clement Nyathi v The Trustees for the Time Being of the Apostolic Faith Mission of Africa & 5 Others

The applicant (Reverend Clement Nyathi) and his followers had been engaged in protracted litigation since 2014 seeking to recover control, ownership and possession of the leadership and assets of the Apostolic Faith Mission of Africa (the sixth respondent). He had been unsuccessful in more than 24 case attempts. On 29 March 2019, the High Court struck off an urgent chamber application brought by the applicant for stay of execution of a judgment and barred him from commencing litigation concerning the respondent church without leave of a judge. On 16 April 2021, the applicant filed a chamber application for condonation and extension of time to appeal, giving the respondents 5 days to respond instead of the mandatory 3 days required by r 43(5) of the Supreme Court Rules, 2018. The respondents filed their opposing papers on the fourth day (23 April 2021). Both parties raised preliminary points regarding compliance with procedural rules governing chamber applications.

• Whether the applicant's chamber application was fatally defective for failing to give the correct dies induciae (3 days) as required by r 43(5) of the Supreme Court Rules, 2018 read with the proviso to r 241(1) of the High Court Rules, 1971 and Form 29
• Whether the respondents' opposing papers filed on the fourth day (outside the 3-day period) were void ab initio
• Whether a chamber application that does not comply with mandatory procedural requirements is a nullity
• Whether non-compliance with peremptory provisions regarding notice periods can be condoned

The matter was struck off the roll with no order as to costs.

A chamber application that fails to accord the correct dies induciae as mandated by r 43(5) of the Supreme Court Rules, 2018 read with the proviso to r 241(1) of the High Court Rules, 1971 and Form 29 is fatally defective and constitutes a nullity. The requirements of Form 29 regarding notice to respondents of their procedural rights and the time periods within which they must act are peremptory. Where the word 'within' is used in a provision relative to time, it signifies that the provision is peremptory. A nullity cannot be condoned. When an applicant provides incorrect dies induciae (5 days instead of the mandatory 3 days), this fundamental defect renders the entire application void ab initio, regardless of whether the respondents also failed to comply with procedural requirements.

The Court noted the parties' extensive litigation history, with the applicant having been unsuccessful in more than 24 cases since 2014. KUDYA JA indicated that in the interests of fairness and in exercise of the court's wide discretionary powers, the court should consider the first in time procedural defect. The Court also observed that while the respondents' legal practitioners had a duty to abide by the mandatory 3-day requirement, they were misled into default by the defective dies induciae to the prejudice of the respondents. The Court found it would be inappropriate to award costs to the respondents despite the applicant's tender of costs, because the respondents had been non-suited due to their own procedural violation.

This case reinforces the strict approach Zimbabwean courts take to compliance with peremptory procedural rules governing chamber applications. It emphasizes that: (1) the requirements of Form 29 regarding notice to respondents are mandatory and cannot be departed from; (2) providing incorrect dies induciae renders an application a nullity; (3) a nullity cannot be condoned; (4) the use of the word 'within' in relation to time periods signifies a peremptory provision; and (5) courts will address procedural defects in chronological order, dealing with the first defect that arises. The judgment demonstrates that even where both parties have failed to comply with procedural requirements, the court will strike off the application if it is fundamentally defective from inception. It serves as a stern reminder to legal practitioners of their duty to comply strictly with court rules when instituting proceedings.