Richard Moyo-Majwabu in his capacity as the Executor of the Estate Late Dr. Nicholas Magqokana Ndebele and Estate Late Dr Nicholas Magqokana Ndebele v The Partners for the time being of Maseko Law Chambers

On 23 September 2020, the respondents instituted a court application in HC 1627/20, which was opposed on 2 October 2020. On 4 November 2020, the applicants filed an answering affidavit. The applicants then brought an application for dismissal for want of prosecution on 3 March 2021, alleging that the respondent in the main matter had failed to set the matter down for hearing within one month of filing the answering affidavit as required by Rule 236(4) of the High Court Rules 1971. The application was brought in terms of Rule 236(4) which allows a respondent to apply for dismissal where an applicant has filed an answering affidavit to opposition but has not within one month thereafter set the matter down for hearing.

• Whether the application for dismissal for want of prosecution was filed prematurely
• Whether vacation days should be counted when calculating the 30-day period under Rule 236(4) of the High Court Rules 1971
• Whether the COVID-19 lockdown practice directives suspended the running of the 30-day period
• Whether Rule 238(2)(a) applies to suspend the counting of dies inducie during vacation periods in respect of Rule 236(4) applications

The application was struck off the roll with costs in favour of the respondent.

Vacation days must be excluded when calculating the 30-day period under Rule 236(4) of the High Court Rules 1971 within which a matter must be set down for hearing after filing an answering affidavit, because opposed matters cannot be set down and heard during vacation. Rule 238(2)(a), which suspends the counting of dies inducie during vacation periods, applies to applications under Rule 236(4). Practice directives suspending the filing of court processes also suspend the running of the 30-day period under Rule 236(4).

The court observed that the current practice of setting down opposed matters, wherein a blank notice of set down is sent to the Registrar and parties wait for dates to be allocated, is divorced from the setup intended in Rule 236(4), which clearly contemplates a party setting the matter down instantly rather than applying and waiting for dates to be allocated. The court also noted that Rule 236(4) is designed to ensure that a party spearheads their matter to finality by not neglecting matters they have initiated to the prejudice of the other party.

This case provides important guidance on the interpretation and application of Rule 236(4) of the High Court Rules 1971 in Zimbabwe, specifically regarding the calculation of the 30-day period within which a matter must be set down for hearing after filing an answering affidavit. The judgment clarifies that vacation days and COVID-19 lockdown practice directives suspend the running of this period. The case is significant for civil procedure practice in Zimbabwe, establishing the principle that the dies inducie calculation under Rule 236(4) must exclude vacation periods because opposed matters cannot be set down during vacation. It also addresses the impact of emergency practice directives on procedural timelines.