Rusape Town Council v Stephen Razo and James Chagwiza

The applicant wrongfully dismissed the two respondents from employment in 2015. The respondents successfully contested the dismissal before an arbitrator who issued an award on 27 August 2017 ordering the applicant to pay USD$53,592.29. The award was registered with the High Court under HC 6011/19 on 27 September 2019. In late December 2020, the respondents executed on the judgment. The applicant then filed an application for stay of execution in January 2021 (HC 770/20). Subsequently, the respondents filed an application (HC 2783/21) seeking dismissal of the stay application for want of prosecution. The applicant failed to file heads of argument as required by the rules of court and was barred. The applicant then filed the present application seeking condonation for the late filing of heads of argument and upliftment of the bar. Between the arbitral award and its registration, the applicant claimed to have made settlement payments totaling ZWL$43,376.68 in RTGS through negotiations with Pundu and Company, which the applicant alleged were the respondents' legal practitioners. The respondents denied any involvement with Pundu and Company and rejected the payments.

• Whether condonation should be granted for the late filing of heads of argument in breach of Rule 59(21) of the High Court Rules SI 202/20
• What factors should be considered cumulatively in determining an application for condonation
• Whether the prospects of success should be assessed in relation to the immediate application or the main matter in multi-layered proceedings
• Whether the applicant provided a reasonable explanation for the delay
• Whether granting condonation would be in the interests of justice despite prejudice to the respondents

1. The application for condonation of late filing of heads of argument and upliftment of bar in case number HC 2783/21 was granted. 2. Applicant ordered to file its heads of argument in case number HC 2783/21 within five (5) days from the date of the order. 3. Applicant ordered to pay costs of suit on an attorney-client scale.

In applications for condonation for breach of court rules, the court must consider all relevant factors cumulatively and weigh them against each other, rather than focusing on any single factor. The factors include: extent of delay, reasonableness of explanation, prospects of success, prejudice to the other party, need for finality, importance of the case, court convenience, and avoidance of delays in justice administration. Where there are prospects of success in the main matter, this may compensate for an inadequate explanation for delay. In multi-layered proceedings involving condonation applications, the court should assess the prospects of success in the main matter (the parent dispute) rather than merely the immediate application, as this allows the court to grapple with the gravamen of the real dispute between parties and serves the interests of justice. Condonation is a discretionary remedy to be exercised judicially, and the interests of justice are paramount in determining whether to grant it.

The court made several non-binding observations: (1) It noted with disapproval the applicant's persistence in breaching court rules and lack of diligence throughout the protracted litigation spanning five years. (2) The court observed that parties who have been definitively disposed of by a court should accept their fate and move on, rather than continuing to haunt the corridors and courtrooms "like buzzards soaring over a desolate plain." (3) The court expressed surprise at the applicant's audacity in seeking costs on a higher scale given its conduct. (4) The court noted the puzzling nature of the respondents' emphatic dissociation from Pundu and Company, suggesting there appeared to be some nexus between them based on the record in HC 112/18. (5) The court raised concerns about possible misalignment of instruction during settlement negotiations and encouraged proper conduct of proceedings going forward. (6) The court acknowledged the importance of the matter to the applicant as a public entity despite poor litigation conduct, noting that seizure of ambulances, earth-moving equipment and utility vehicles cannot be a small matter for such an entity.

This case provides important guidance on the application of condonation principles in Zimbabwean civil procedure. It reinforces the approach that factors in condonation applications must be considered cumulatively rather than in isolation, with strong factors compensating for weak ones. The case clarifies that in multi-layered proceedings, courts should assess prospects of success in the main matter rather than merely the immediate application. It also demonstrates that even where there is significant delay and inadequate explanation, condonation may be granted where there are genuine prospects of success and the interests of justice demand resolution on the merits. The case emphasizes the policy against finality in litigation while balancing it against the need to avoid perpetual disputes. It also illustrates the court's discretion to depart from the usual costs rule where a party's conduct in litigation warrants such departure.