Stanley Mungofa v City of Harare and Registrar of Deeds N.O.

The plaintiff (Dr. Stanley Mungofa) sued the City of Harare (first defendant) seeking transfer of a property described as "House number 93 Rotten Row Road/Cnr Robert Mugabe Road, Harare" and damages for unlawful occupation. The claim was based on a written retrenchment package (Deed of Settlement and Addendum) signed on 20 April 2015, which provided that the plaintiff would receive "a house situated at the corner of Rotten Row Road and Robert Mugabe Road, Harare." The first defendant pleaded that the agreement was invalid for failure to identify the proper property with a Deeds Office description. During trial, the plaintiff testified and was cross-examined. When asked about the proper Deeds Office description, he insisted it was unnecessary as he was suing on a retrenchment package, not an agreement of sale, and that the physical description was sufficient. After cross-examination on 19 July 2018, the plaintiff promptly closed his case. The parties agreed to file written submissions on an anticipated application for absolution from the instance. Instead of filing submissions, the plaintiff filed a chamber application on 9 August 2018 seeking to reopen his case to produce a Deed of Transfer and magistrates court eviction proceedings record, and to amend his summons and declaration to include the Deeds Office description and introduce a new cause of action for rectification of the Deed of Settlement.

• Whether the court should exercise its discretion to allow the plaintiff to reopen his case after it had been closed
• Whether the court should grant leave to amend the summons and declaration to include the Deeds Office description of the property and introduce a new cause of action
• The applicable principles governing applications to reopen a plaintiff's case
• Whether the applications were mala fide and an attempt to avoid an application for absolution from the instance

1. The application for leave to reopen the plaintiff's case is dismissed. 2. The application to amend the plaintiff's summons and declaration is dismissed. 3. The plaintiff shall pay the first defendant's costs in respect of both applications on the legal practitioner and client scale.

It is not a proper exercise of the court's discretion to allow a plaintiff to reopen his case and amend his summons and declaration where such efforts are designed to ward off an application for absolution at the close of the plaintiff's case. In determining an application to reopen a plaintiff's case, the court must consider: (1) the reason why the evidence sought to be adduced was not led timeously; (2) the degree of materiality; (3) the possibility that evidence may have been shaped to relieve the pinch of the shoe; (4) the balance of prejudice; (5) the appropriateness of a costs order; and (6) the general need for finality in judicial proceedings. Where a plaintiff deliberately chooses not to lead certain evidence because he considers it irrelevant, and only seeks to introduce it after closing his case when faced with the prospect of an absolution application, such applications are mala fide and amount to an abuse of process. A change of mind prompted by the certainty of having to deal with an application for absolution does not transform evidence that has always existed into new evidence discovered after the close of the plaintiff's case.

The court made several non-binding observations: (1) Litigants must remember that when they institute proceedings the court becomes involved and they can no longer do as they please - they cannot obtain amendments and leave to reopen cases just because they have asked for the same; there must be justification as an indulgence is being sought and discretion is involved. (2) The court endorsed and applied the statement from Ndebele v Ncube 1992 (1) ZLR 288 (S) that "the law will help the vigilant but not the sluggard" and noted that while those words were uttered twenty-six years earlier, they were truer at the time of judgment than when originally stated. (3) The court observed that in recent years applications for various forms of relief arising out of delays have "rocketed in numbers" and that "incompetency is becoming a growth industry." (4) The court noted that legal practitioners have not deposed to affidavits explaining their conduct, and the explanation for their actions was "self-evident" - they considered the title deeds irrelevant. (5) The court stated it must mark its displeasure at the conduct of the plaintiff and emphasized the need to look at substance rather than form to avoid being deceived by procedural applications.

This case is significant for establishing the strict approach courts will take to applications to reopen a plaintiff's case and amend pleadings after the close of the plaintiff's case, particularly where such applications appear designed to avoid an application for absolution from the instance. It reinforces the principle of finality in litigation and the requirement for diligence by both litigants and their legal practitioners. The case serves as a warning against tactical litigation maneuvers that amount to an abuse of court process. It emphasizes that courts will look to the substance rather than the form of applications and will not permit litigants to "make their case as they go" or obtain "another bite of the cherry" through procedural applications. The judgment also highlights the professional responsibilities of legal practitioners to properly prepare cases before trial, including conducting necessary searches and obtaining relevant documentation.