Tessy Zvemisha v Eunice Zvemisha and Others

The applicant and first respondent were both married to the late Kennedy Zvemisha under registered customary law marriages. Kennedy died on 30 September 1995, leaving a will dated 1 April 1993 which bequeathed the matrimonial home (Stand 2957 Dangamvura Township, Mutare) where the applicant resided to the first respondent, with the applicant having a usufructuary right until her youngest child turned 18. The estate was administered as testate under DR 3175-95. When the child turned 18, the first respondent, having transferred the house into her name, sold it and sought to evict the applicant. The applicant filed an application (HC 8824/18) seeking a declaratory order that the will was invalid and that the deceased died intestate, and to have the estate reopened. The first respondent successfully applied for dismissal of that application for want of prosecution on 11 February 2020 under case number HC 8648/19. The applicant then sought rescission of that dismissal order.

• Whether the first respondent was barred for failure to timeously file heads of argument within the prescribed period
• The effect of automatic bar under High Court Rules when heads of argument are not filed within the prescribed ten-day period
• Whether the court should exercise discretion under rule 7 to grant a default judgment instead of referring the matter to the unopposed roll
• Whether the rescission application should succeed

1. The application for rescission of judgment succeeds with costs. 2. The judgment granted in matter HC 8648/19 on 11 February 2020 is set aside. 3. The matter under case number HC 8824/18 shall proceed in terms of the rules of this court.

The binding legal principle is that under rule 238(2b) of the High Court Rules, 1971 (and equivalent provisions in the 2021 Rules), where heads of argument required to be filed are not filed within the prescribed period of ten days after receipt of the applicant's heads, the bar falls into place automatically by operation of law and not by court order. The rule is peremptory and the court has no discretion whether to bar the respondent or not. Once barred, the respondent's legal practitioner can only be heard on the removal of the bar and not on any other matter including their own points in limine. Where such automatic bar operates, the court may exercise its discretion under rule 7 (or rule 4(c) of the 1971 Rules) to grant a default judgment in the interests of justice to save costs and avoid further delays, rather than directing the matter to the unopposed roll.

The court noted that Mr Madondo's attempt to justify the delay by referring to COVID-19 disruptions was insufficient as he failed to specify the specific periods and practice directions that would account for the full six months' delay. The court also observed that as the bar brings about a technical default, reviewing the merits at this stage would unnecessarily fetter the discretion of a future court that may be seized with an application to rescind any default judgment. The underlying substantive dispute involves complex issues of customary law marriage, testamentary succession in polygamous marriages, and property rights, but these were not addressed on the merits in this procedural ruling.

This case reinforces the peremptory nature of procedural rules regarding the filing of heads of argument in Zimbabwean civil procedure. It confirms that the bar under rule 238(2b) operates automatically and is not a matter of judicial discretion. The case is significant for demonstrating the strict enforcement of procedural time limits and the consequences of non-compliance, while also showing how courts may exercise discretion to avoid unnecessary delays and costs by granting default judgments rather than remitting matters to the unopposed roll. The case also has implications for succession matters involving polygamous customary law marriages and the validity of wills in such contexts, though these substantive issues were not decided on the merits.