Tendayi Mundawarara v Emelda Mundawarara

The applicant and respondent were former spouses who were granted a decree of divorce by the High Court on 26 January 2012 in case HH 51/2012. The divorce order included a division of matrimonial assets, particularly Stand 51 Greystone Park Township 2 of Lot A of Borrowdale Estate (No. 15 Alveston Avenue, Borrowdale, Harare), awarding the applicant 60% and the respondent 40%. The order granted the applicant the right to buy out the respondent's 40% share within 90 days of property evaluation. The applicant later filed this application on 27 May 2013 seeking an order declaring he had fully complied with the buyout provisions and that the respondent should vacate the property. The respondent opposed the application. The applicant filed heads of argument on 18 July 2013, served on the respondent's legal practitioners the same day. The respondent only filed heads of argument on 19 September 2013, substantially beyond the 10-day deadline required by Rule 238(2a) of the High Court Rules (which would have been 2 August 2013).

• Whether the respondent was barred from opposing the application for failing to file heads of argument within the prescribed time period under Rule 238(2a) of the High Court Rules
• Whether the respondent should be granted a postponement to file an application for condonation for late filing of heads of argument
• Whether the applicant had complied with the provisions of the divorce order regarding buyout of the respondent's share in the matrimonial property
• Whether the respondent should be ordered to vacate the property

The court granted an order that: (1) The applicant had fully complied with paragraph 3.5 of Case No. HC 51/2012; (2) The respondent must vacate Stand 51 Greystone Park Township 2 of Lot A of Borrowdale Estate (No. 15 Alveston Avenue, Borrowdale, Harare) within seven days; (3) If the respondent fails to vacate, she would be responsible for all owner's charges until vacating; (4) The respondent must service the CABS mortgage loan for as long as she remains on the premises; (5) The order remains effective notwithstanding the noting of any appeal; (6) The respondent pays costs of the application on an attorney and client scale.

Where a respondent's heads of argument are not filed within the 10-day period specified in Rule 238(2a) of the High Court Rules after the applicant's heads have been delivered, the respondent is barred in terms of Rule 238(2b), and the court may proceed to deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll. A party seeking to be relieved from the consequences of being barred must apply for the upliftment of the bar with a bona fide and reasonable explanation for the failure to comply with the rules. A postponement will not be granted where counsel is unprepared to address a procedural default and has no reasonable explanation for the breach, particularly where the breach is blatant and the legal practitioner has failed to apply his mind to clear procedural requirements.

The court observed that the impression created was that the respondent's legal practitioner had deliberately not applied his mind to the timelines for filing heads of argument and thought that "anytime would do." The court emphasized that the rules are very clear on filing requirements and that legal practitioners must be aware of and comply with these requirements. The court noted that where a party is barred, the normal route is to apply for upliftment of the bar with a reasonable and bona fide explanation for the failure to abide by the rules.

This case demonstrates the strict application of the High Court Rules regarding timeous filing of heads of argument in opposed applications. It emphasizes that compliance with procedural rules is mandatory and that the consequence of failing to file heads of argument within the prescribed 10-day period under Rule 238(2a) is that the respondent becomes barred from opposing the application. The case also illustrates that courts will not readily grant postponements to rectify procedural defaults where the legal practitioner has failed to apply his or her mind to clear procedural requirements and comes unprepared to explain the breach. It reinforces the principle that legal practitioners must be diligent in complying with court rules and timelines, and that ignorance or inadvertence is not a sufficient basis for postponement or condonation.