Wilfred Manemo and Another v Alphonsus Achinulo and Another

The applicants and respondents entered into a lease agreement in July 2000 regarding immovable property in Kumalo Suburbs, Bulawayo. Disputes arose and respondents instituted legal proceedings, obtaining a provisional order on 10 August 2000. On 4 September 2000, respondents vacated the property, which was confirmed by their legal practitioner on 14 September 2000. Applicants' legal practitioners advised they had not filed opposition to the provisional order as the matter had been overtaken by events (the vacation). Correspondence ensued regarding costs, with applicants denying the claim on 2 October 2000. On 15 February 2001, without notifying applicants, respondents had the provisional order confirmed. A bill of costs was taxed on 6 July 2001 and a writ issued on 6 August 2001. Applicants only became aware of the confirmation on 22 August 2001 when the Deputy Sheriff visited to attach their property. Applicants applied for rescission of the judgment and condonation for late filing (one month and one week delay).

• Whether the applicants' failure to comply with Rule 63(1) of the High Court (General Division) Rules (1971) should be condoned
• Whether the judgment of 15 February 2001 should be rescinded
• Whether respondents' legal practitioners acted improperly in obtaining confirmation of the provisional order without notifying applicants when they knew costs were in dispute

1. The application for condonation of late filing of application for rescission succeeds. 2. The application for rescission succeeds. 3. The question of costs be referred for taxation by the Assistant Registrar's office. 4. Respondents pay costs for this application at a higher scale.

In considering applications for condonation of non-compliance with court rules, the court exercises a discretion judicially upon consideration of all facts, considering: the degree of non-compliance, explanation thereof, prospects of success on merits, importance of the case, the respondent's interest in finality of judgment, convenience of the court, and avoidance of unnecessary delay. A legal practitioner must not obtain confirmation of an order without notifying the opposing party when they are aware that the matter (particularly costs) is in dispute, as this constitutes unprofessional conduct that courts will not condone. Where a court would not have granted an order had it been apprised of the full facts, rescission should be granted.

The court made important observations on professional ethics, stating that the legal profession is an honourable profession requiring fairness in day-to-day dealings with colleagues. The etiquette of practice requires that colleagues be treated with due consideration without sacrificing one's client's interest. Legal practitioners face the temptation to benefit or impress clients by inconveniencing opposing counsel, but it is the duty of every legal practitioner to overcome this temptation. The court emphasized that courts should expeditiously dispose of cases with minimum delay, but not sacrifice justice for expedience purposes.

This case is significant for establishing standards of professional conduct expected of legal practitioners in Zimbabwe, particularly regarding fairness and notification to opposing counsel when obtaining judgment where matters are in dispute. It reinforces the principle that courts will exercise their discretion to grant condonation and rescission where justice requires, even where there has been technical non-compliance with rules, provided the delay is not inordinate and is satisfactorily explained. The case also demonstrates the court's willingness to penalize improper professional conduct through costs orders at a higher scale.