Sandra Nokhuthula Chakara and Others v Jennifer M Ndoro and Others

The applicants obtained a default judgment under HC 530/2020. The first respondent then made an application for rescission of that default judgment under HC 3852/2020. The applicants filed their notice of opposition to the rescission application. The respondent failed to set down the rescission matter within the stipulated time, citing that she had gone to Karoi to attend to her ill sister. The applicants then filed this application for dismissal for want of prosecution under HC 3132/2021. The underlying dispute concerned property over which the deceased (Never Chakara) had granted the respondent (his widow) a usufruct right through his will, while the applicants (the deceased's children and beneficiaries under the same will) claimed ownership and sought to sell the property.

• Whether the respondent's rescission application should be dismissed for want of prosecution due to failure to set down the matter timeously
• Whether the court should consider the prospects of success of the main matter when determining an application for dismissal for want of prosecution
• Whether the applicants had the right to dispose of property subject to a usufruct while the usufruct remained in effect
• The nature and effect of usufructuary rights granted through a will

1. The application for dismissal for want of prosecution is hereby dismissed. 2. The respondent to set down the matter within 10 days from the date judgment was handed down. 3. The respondent to pay costs at an ordinary scale.

When considering an application for dismissal for want of prosecution, the court must exercise its discretion by considering the prospects of success of the main matter. Where the main matter has high prospects of success and involves substantial rights (such as usufructuary rights granted through a will), the court should not grant dismissal for want of prosecution merely due to procedural default, particularly where such dismissal would cause severe prejudice or hardship to the defaulting party. Under the law of usufruct, remaindermen holding bare dominium have no right to sell or dispose of property subject to a usufruct while the usufruct remains in effect; only the usufructuary has the right to use and enjoy the property until the usufruct terminates (through death or remarriage in the case of a surviving spouse).

The court observed that litigation should always come to an end timeously and should not drag on for long periods. The court noted that there is no point in dismissing an application for want of prosecution when it is clear that the default judgment in the main matter is doomed to fail. The court commented on the principle of freedom of testation, noting that Section 5 of the Wills Act does not forbid a testator from disinheriting a spouse and that the testator has freedom to distribute his estate as he deems necessary. The court also observed that a justiciable approach should be given to parties who have not shown a clear intention to abandon their rights, and they should be allowed to comply and remedy areas where they are in default.

This case is significant in Zimbabwean law (applicable to South African jurisprudence by analogy) for establishing that courts should apply a justiciable approach when considering applications for dismissal for want of prosecution, particularly where the defaulting party's substantive rights are substantial (such as usufructuary rights to residential property). It reinforces the principle that procedural default should not automatically override strong substantive rights, especially where granting the dismissal would result in severe hardship. The judgment also clarifies the nature and extent of usufructuary rights under a will, emphasizing that remaindermen cannot dispose of property subject to a usufruct while it remains in effect, and reinforces the principle of freedom of testation.