The applicant sought a declaratory order in terms of s 14 of the High Court Act following a dispute arising from an amendment to the Dadaya Mission Trust Deed and the appointment of the second to fifth respondents as trustees. The application was filed on 5 October 2017, with opposing papers filed on 31 October 2017. The applicant filed an answering affidavit on 8 March 2018, but did not set the matter down until 13 June 2018. The applicant's heads of argument were filed on 12 June 2018 and served on 28 June 2018. Meanwhile, on 7 June 2018, the first respondent had applied for dismissal of the application for want of prosecution in terms of r 236(3) of the High Court Rules. The first respondent's heads of argument were filed late on 28 August 2018. At the hearing, the applicant raised a preliminary point that the first respondent should be barred for filing heads of argument beyond the prescribed period and sought judgment on an unopposed basis.
The matter was postponed sine die pending determination of the application for dismissal for want of prosecution. The applicant was ordered to pay the first respondent's costs.
Once an application for dismissal for want of prosecution has been filed in terms of r 236(3) of the High Court Rules, it must be determined on its merits before the main application can proceed. A party cannot defeat an application for dismissal by subsequently setting down the main application or filing further processes in pursuance of the proceedings under scrutiny. Rule 236(4) read together with r 238(1) and (1a) establishes time limits for applicants to file heads of argument and set down matters, and these time limits are enforceable through applications for dismissal for want of prosecution. The High Court Rules must be applied equally to both applicants and respondents to ensure procedural fairness.
The court observed that it would make no sense for a respondent to be subject to strict time limits for filing heads of argument with consequences for non-compliance (being barred) whilst no consequence befalls an applicant who commits a similar infraction. The court noted that the action a respondent takes after an application for dismissal has been made is of no consequence - the only option is to oppose the application for dismissal and let it be dealt with on the merits. The court also noted approvingly the principle from Melgund Trading that allowing a respondent who has failed to comply with r 236(3)(b) to set down the application to defeat the application for dismissal would be tantamount to allowing respondents to pull the carpet from under the feet of applicants.
This case is significant in Zimbabwean civil procedure for clarifying that applicants are subject to time limits for filing heads of argument and setting down matters, just as respondents are. It reinforces the principle that procedural rules must be applied equally to all parties. The case is particularly important for establishing that once an application for dismissal for want of prosecution has been filed, it must be determined first before the main application can proceed, and a party cannot defeat such an application by belatedly setting down the main matter. The judgment emphasizes the importance of procedural fairness and the prevention of tactical manipulation of court processes.