Watermount Estates Private Limited v Oniyas Zidanda Gumbo and Kwaziso Bhosha and Raymond Moyo

The plaintiff (Watermount Estates Private Limited) issued summons against three defendants claiming payment of US$5,000,000.00 or its equivalent in Zimbabwean currency, plus interest and costs on a legal practitioner-client scale. The defendants filed an exception in terms of r 42(2) of the High Court Rules, 2021, contending that the summons disclosed no cause of action against the first defendant and/or that the matter was lis pendens as a dispute relating to the directorship of the plaintiff was pending under HC 8497/18. On the hearing date of 22 September 2022, counsel for the plaintiff sought postponement to a date after 24 October 2022 because the Advocate who was to handle the matter was unavailable. The defendants opposed the postponement application. It emerged that the plaintiff had briefed Advocate Mubaiwa on 21 September 2022 (the eleventh hour) and that Advocate Mubaiwa had declined the brief.

• Whether the application for postponement should be granted based on unavailability of counsel of choice
• Whether reasonable explanation was provided for failure to appear in court by the briefed Advocate
• The requirements for granting a postponement in civil proceedings

The court ordered that: (1) The matter stands withdrawn by Plaintiff; (2) Matter under Case HC 694/22 is dismissed on account of the withdrawal; (3) The plaintiff to pay wasted costs.

An application for postponement is not for mere asking and sufficient and reasonable reasons must be advanced. The party applying for a postponement must be prepared to argue the matter in the event the application is dismissed. Briefing counsel at the eleventh hour (one day before the hearing) when that counsel subsequently declines the brief does not constitute a reasonable explanation for failure to appear and does not warrant a postponement. The court will not postpone matters for extended periods simply to accommodate a party's choice of counsel when that party has failed to make timely arrangements.

The court observed that if there was anyone to blame for the situation, it was the plaintiff for leaving the matter until the eleventh hour. The court also noted the importance of parties being ready to proceed once a matter has been set down for hearing, reflecting the principle that once a matter is set down, it must be completed. The court's comments suggest that parties have a duty to ensure proper and timely briefing of counsel and cannot rely on last-minute arrangements as grounds for postponement.

This case illustrates the Zimbabwean High Court's approach to postponement applications in civil matters, emphasizing that postponements are not granted as a matter of course and that parties must provide reasonable explanations for non-attendance. The case demonstrates the court's intolerance for last-minute briefing of counsel and the consequences of inadequate preparation. It also serves as a precedural example of how withdrawal of proceedings operates and the court's power to dismiss a matter on account of withdrawal with costs consequences.