Temba Mliswa v Killer Zivhu

Killer Zivhu (plaintiff) issued summons against Temba Mliswa (defendant) for defamation in case HC 8987/18. On 10 December 2018, Mliswa filed a special plea. The special plea was set down for 21 May 2019 on the opposed roll. Zivhu and his legal practitioners did not attend court, and the special plea was granted in default. On 31 May 2019, Zivhu filed an application for rescission of judgment under Rule 449 of the High Court Rules, 1971. Mliswa filed a notice of opposition on 13 June 2019 and an opposing affidavit. Zivhu filed an answering affidavit on 19 June 2019 but did not set down the rescission application for hearing within one month thereafter. Mliswa then filed this application seeking dismissal of the rescission application for want of prosecution in terms of Rule 236(4)(b) of the Rules.

• Whether the opposing affidavit complied with Rule 227(4) of the High Court Rules, 1971
• Whether the opposing affidavit was invalid due to being attested to by a legal practitioner who was an associate at the respondent's law firm
• Whether the court should dismiss the rescission application for want of prosecution under Rule 236(4)(b) of the High Court Rules, 1971
• What factors should be considered when exercising judicial discretion under Rule 236(4)(b)
• Whether the rescission application had prospects of success
• The interplay between Rule 236(4)(b) and section 69(3) of the Constitution regarding access to courts

The application for dismissal for want of prosecution was dismissed. Costs were ordered to be costs in case number HC 4659/19 (the rescission application).

Rule 236(4)(b) of the High Court Rules, 1971 is permissive rather than directory, giving the court a discretion whether to dismiss a matter for want of prosecution even where the applicant has failed to set down the matter within one month of filing an answering affidavit. When exercising this discretion, courts must consider: (1) the length of delay and explanation thereof; (2) the prospects of success on the merits; (3) the balance of convenience; and (4) the possible prejudice to the applicant. Dismissal for want of prosecution is a drastic remedy that should be granted where circumstances point to a clear intention not to pursue rights, but not where a temporary lapse has occurred and intention to prosecute to finality is shown. Courts must interpret procedural rules in a manner that promotes and is guided by the spirit and objectives of the Declaration of Rights, particularly the constitutional right of access to courts under section 69(3) of the Constitution. First-hand hearsay evidence is admissible in affidavits under section 27 of the Civil Evidence Act [Chapter 8:01], though it may affect the weight of such evidence.

The court observed that once an application to dismiss for want of prosecution is opposed, the applicant should seriously reflect whether to continue with such an application. Instead of deploying time, resources and energy fighting for dismissal, it would be better and in the interests of justice to set down and finalize the main matter. The court noted that while it is "undesirable" for a legal practitioner to attest to an affidavit on behalf of a client being represented by their firm (citing Aaron Chafanza v Edgards Stores Limited HB 27-05), such attestation is not forbidden and should be decided on a case-by-case basis depending on prejudice and the nature of interest involved. The court also commented that respondent should have known the law and authorities before filing the rescission application, making the explanation of complexity unreasonable. The court expressed the view that section 46(2) of the Constitution requires indirect application of the Declaration of Rights where direct application is not possible, and every court has constitutional jurisdiction to do so.

This case is significant in Zimbabwean civil procedure for its interpretation of Rule 236(4)(b) of the High Court Rules, 1971. It establishes that the rule is permissive rather than directory and is designed to remove dead cases from the system, not live and contested matters. The judgment is important for clarifying that courts must exercise judicial discretion when considering dismissal for want of prosecution, taking into account multiple factors including delay, prospects of success, balance of convenience, and prejudice. Critically, the case demonstrates the constitutional dimension of procedural rules, requiring courts to interpret rules in a manner that promotes the constitutional right of access to courts under section 69(3) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, as mandated by section 46(2). The case also provides guidance on admissibility of hearsay evidence in affidavits and the attestation of affidavits by legal practitioners.