Zhou Haixi and Wenzhou Enterprises (Private) Limited v Chen Shaoliang and Others

The plaintiffs instituted civil proceedings against the defendants. The first plaintiff claimed to be the sole shareholder and director of the second plaintiff (a private company) following an alleged sale agreement made in China but implemented in Zimbabwe. The deal had soured, leading to criminal proceedings. The first defendant was initially arrested and convicted at the instance of the first plaintiff, but the conviction was overturned on appeal. The defendants then caused the arrest of the first plaintiff, who was on trial in the magistrates' court with the criminal trial now in the defence case. When the civil trial was set to begin on 15 September 2015, numerous postponements occurred, ostensibly to secure a Chinese interpreter. On 18 November 2015, when trial was to commence, the first and second defendants applied for a stay of proceedings pending conclusion of the criminal trial in the magistrates' court. They argued they needed to produce the full record of criminal proceedings under s 12(2) of the Civil Evidence Act and that proceeding without it would prejudice their defence. The second defendant had not attended court on the advice of her counsel who anticipated the stay application would succeed. The first plaintiff sought a declaration of wilful default against the second defendant.

• Whether civil proceedings should be stayed pending conclusion of related criminal proceedings in the magistrates' court
• Whether the defendants demonstrated sufficient prejudice to warrant a stay of the civil trial
• Whether the production of the magistrates' court record under s 12(2) of the Civil Evidence Act was a sufficient ground for staying civil proceedings
• Whether leave to appeal should be granted against the refusal to stay proceedings
• Whether the second defendant's absence from court constituted wilful default or should be excused

1. The application for leave to appeal to the Supreme Court is dismissed with costs. 2. The application to excuse in retrospect the second defendant's non-attendance at court for trial on 18 and 19 November 2015 is granted, but the second defendant shall pay any costs occasioned by her default. 3. The matter shall be set down as matter number one on the continuous roll during the week beginning 11 January 2016.

A stay of civil proceedings pending conclusion of related criminal proceedings will only be granted where the party seeking the stay demonstrates that they are likely to suffer prejudice in the pending criminal proceedings. This typically arises where the party is an accused person who faces the risk of self-incrimination if required to testify in parallel civil proceedings. Where the party seeking a stay is merely a complainant in criminal proceedings and not an accused, they cannot demonstrate the requisite prejudice merely by asserting they wish to produce the record of criminal proceedings under s 12(2) of the Civil Evidence Act. That section permits production of certified copies of public documents but does not dispense with the need to call witnesses. The test for leave to appeal is whether the application has a reasonable prospect of success. Wilful default occurs where a party, with full knowledge of the set down date and attendant risks, takes a decision to refrain from appearing. Where non-appearance results from reliance on counsel's advice, it is not wilful, though the party may still be liable for wasted costs.

The court made critical observations about counsel's conduct in advising a client not to attend court in anticipation of a postponement being granted. Mafusire J emphasized that the grant of a postponement is in the discretion of the court, not counsel. A party seeking a postponement must come to court prepared for either a grant or refusal of the request. Counsel's failure to inform the court that the second defendant was absent was described as "disdainful and disrespectful of the court." The court cited with approval the Constitutional Court of South Africa in National Police Service Union v Minister of Safety and Security and the Supreme Court in Apex Holdings v Venetian Blinds Specialist, emphasizing that postponement cannot be claimed as of right and requires good cause. The court also noted the wasteful impact on court resources when matters are postponed after the continuous roll has been cleared for multiple days. The court observed that counsel's complaint about the case being "fast-tracked" was frivolous and strange, noting that many litigants would welcome early hearing dates and that delay, not expedition, would more properly invoke constitutional concerns about fair and speedy trial.

This case is significant for clarifying the principles governing stay of civil proceedings pending conclusion of related criminal proceedings in Zimbabwean law. It establishes that: (1) The mere fact that related criminal proceedings are pending does not automatically warrant a stay of civil proceedings; (2) The party seeking a stay must demonstrate actual prejudice that would result from proceeding with the civil trial; (3) The prejudice contemplated in cases like MacFarlane v Sengweni typically relates to the risk of self-incrimination where the same party is an accused in criminal proceedings, not merely a complainant; (4) Section 12(2) of the Civil Evidence Act does not dispense with the need to call witnesses who testified in previous proceedings - it merely permits production of certified copies without calling custodians; (5) Courts will not countenance attempts to delay proceedings through applications made mala fide. The case also reinforces principles regarding wilful default and the responsibilities of legal practitioners when advising clients about court attendance.