Bryne Felix Chipembe and 7 others v Nicholas Mugwagwa Vingirai and 7 others

### Preamble
1
HH 500 - 25
Case No HCH 1145/25
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BRYNE FELIX CHIPEMBE

and

MORGAN NCUBE

and

MEDELINA DUBE

and

FARUKAI CHIKOMBA

and

NKULULEKO GEZA

and

ALEX MASHEKA

and

FRANCIS TARWIREMHIKE GONESE

and

PAUL VHIRIRI

versus

NICHOLAS MUGWAGWA VINGIRAI

and

RAYMOND TATENDA TUNGAMIRAI VINGIRAI

and

BROXFILED ENTERPRISES (PRIVATE) LIMITED

and

DONDO FARM (PRIVATE) LIMITED

and

MINISTER OF LANDS, AGRICULTURE, FISHERIES WATER AND RURAL DEVELOPMENT N.O.

and

MINISTER OF STATE FOR PROVINCIAL AFFAIRS AND DEVOLUTION FOR MASHONALAND WEST PROVINCE IN THE OFFICE OF THE PRESEIDENT AND CABINET N.O.

and

REGISTRAR OF DEEDS N.O.

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 1 July 2025 & 4 September 2022

Opposed Application-Extension of time to file proof of service of application

Mr F. Murisi, for the applicants

Mr Z. Zvobgo, for the first to fourth respondents

MUSITHU J:    The applicants approached the court for the extension of time within which to file a certificate of service following the service of a court application for rescission of judgment on the respondents. The application was made in terms of r 58(7) of the High Court Rules, 2021 (the Rules).

Background and the applicants’ case

The brief background facts are as follows. The applicants filed an application for rescission of a default judgment that had been granted in HCH 5712/24. The application was filed under HCH 643/25 on 12 February 2025, and it is still pending. The application was served on the first to sixth respondents on 14 February 2025, and the certificates of service in respect of the said respondents were filed on 18 February 2025.

The seventh respondent was served with the application for rescission on 17 February 2025, but the applicants did not file the certificate of service in the Integrated Electronic Case Management System (IECMS), within five days as required by the rules of court. The certificate of service on the seventh respondent was only filed on 4 March 2025, outside the five-day period prescribed by the rules. The present application therefore seeks the extension of time within which to file the certificate of service of the application on the seventh respondent.

Rule 58(14) and (15), provides that if a certificate of service is not filed within five days from the date of service of the application, then the application shall be deemed abandoned. The applicant averred that the abandonment of the application would be in respect of the respondent for whom no certificate of service was filed as required by the provision. It would not apply to those respondents in respect of which the provision was complied with.

According to the applicants, their interpretation of the rules was that an applicant who desired an extension of any time provided under part VIII of the rules had to make a chamber application for extension of time. Such application must be made where the other party had refused to consent to such extension of time, after an approach for such consent. The applicants’ legal practitioner wrote to the first to fourth respondents’ legal practitioners seeking their consent for the extension of time to file the certificate of service, but such consent was declined.

The applicants further averred that the failure to file the said certificate of service was a result of an oversight on the part of their legal practitioner who filed certificates of service for the first to sixth respondents, and then omitted to upload the one in respect of the seventh respondent. This oversight was caused by the fact that there were many certificates of service that were yet to be uploaded and the legal practitioner thought he had uploaded all of them. The error was only picked when the applicants had sight of the first to fourth respondents’ opposing affidavit in HCH 643/25 where the issue was raised as a preliminary point. The applicants’ legal practitioner, Fortune Murisi deposed to a supporting affidavit explaining what transpired and owning up to his oversight.

The first to fourth respondents’ case

The opposing affidavit was deposed to by the first respondent, who also did so on behalf of the second to fourth respondents. The opposing affidavit raised the preliminary point that the application and the relief sought was incompetent. Once a matter was deemed abandoned in terms of r 58(15), then the proper procedure was to apply for reinstatement of the abandoned matter, instead of an extension of time within which to comply with the rules.

It was also averred that the applicant did not comply with r58(14) of the rules in the matter in HCH 643/25, which resulted in the application being deemed automatically abandoned in terms of r 58(15). Once this was the position, there was nothing for the court to determine since the application had already been dispensed with by operation of law. It became a nullity at law, and a nullity could not be condoned and neither could it be remedied by extension of time

It was further averred that once a matter was deemed abandoned, it was relegated to a dead file. It was terminated and was no longer before the court. Rule 58(15) rendered the matter abandoned regardless of whether the failure to timeously file a certificate of service related to one respondent or to numerous respondents. The entirety of the application was voided.

The Submissions

Mr Zvobgo for the respondents submitted that once the application in HCH 643/25 was deemed abandoned, it was effectively terminated and voided. That application was no longer before the court at all. What was absurd was that the applicants were seeking condonation in respect of matter that stood terminated. An application for condonation was concerned with a matter that was live. In advancing the argument that where a matter was deemed abandoned, the appropriate remedy was reinstatement, counsel for the respondents referred to the case of Vanledge Investments (Private) Limited & 3 Ors v Chemical Procurement Services Africa (Private) Limited SC 5/24.

Mr Zvobgo further submitted that once the matter was deemed abandoned, it did not matter that the other parties had complied with the rules. The abandonment of the matter affected all the respondents. Interpreting the provision of the rules otherwise would lead to an absurdity that the matter would be terminated piecemeal.

In response, Mr Murisi for the applicants submitted that in making the application, the applicants relied on r 58(7), which provided a remedy where there was a violation of that provision. The issue was not necessarily about the meaning of the word ‘abandoned’, but what the provision said.

Mr Murisi further submitted that it would be absurd if the entire application was abandoned as against all the respondents, when the other respondents were compliant save for one.

The Analysis

The issue before the court is a narrow one. It is whether the application is properly before the court, regard being had to the provision of the rules under which it was launched. The parties did not address the merits of the application. Counsel for the respondents insisted on the court making a ruling on this point before adverting to the merits of the application.

Rule 58(7) in terms of which the present application was launched states that “where a party desires an extension of any of the time fixed by or in terms of this Part and the other party refuses to agree thereto, the party so desiring may make a chamber application for such extension and the judge may make such order on the application as he or she considers just.” The provision is housed under Part VIII of the rules, which deals with the application procedure. Rule 58(14) & (15) provides as follows:

“(14) Where an application made in terms of this Part is to be served on the other parties, the applicant shall, within 5 days of service of the application, file with the Registrar proof of service of the application on the other parties.

(15) Where, for any reason, proof of service is not filed with the Registrar in the manner and time specified, the application shall be deemed to be abandoned for that reason and the Registrar shall accordingly notify the parties.”

The intention behind the two provisions was simply to encourage litigants to take steps to ensure the expeditious prosecution of their matters, instead of leaving them to lie idle in the registry once they had initiated the formative stages of such litigation.  The civil registry was being swamped by matters that were filed and then left to lie idle within the system with no further action being taken by the parties.

It is not in dispute that the effect of a failure to comply with r58(14), results in a matter being deemed abandoned by operation of r58(15). However, two issues arise for determination. The first is whether such a matter can be resuscitated through a r 58(7) application, and the second is whether the deeming of the matter as having been abandoned affects the entire application as it relates to the other respondents in respect of whom certificates of service were filed timeously as required by r58(14).

The first issue is resolved upon a consideration of the meaning of the words “deemed to be abandoned” as used in r 58(15).  The rules do not define those words. Recourse must be had to case law authorities in order to decipher the intention of the lawmakers. In Vanledge Investments (Private) Limited & 3 Ors v Chemical Procurement Services Africa (Pvt) Limited SC 5/24, the court held as follows at pages 4-5 of the judgment:

“In this case the appeal was not struck off the roll but regarded as abandoned and dismissed. Where a matter is regarded as abandoned and dismissed, there is a specific remedy provided for that scenario under r 70. That remedy is reinstatement………”

In Combined Harare Residents Association & Anor v Zimbabwe Electrical Commission & Anor HH 286/25, the court made the following apposite remarks regarding r 58(15):

“It is clear that the application shall be deemed to be abandoned by operation of law in terms of rule 58(15). The effect of the deeming provision is that the matter was automatically terminated the day the applicants failed to file a certificate of service of the court application within five days of service as prescribed under rule 58(14). The fact that the Registrar did not inform the parties of the abandonment does not detract from the automatic abandonment. The abandonment is by operation of law. It takes effect upon failure to comply and not upon notification by the Registrar.” (Underlining for emphasis).

In Nyeve & Anor v Sibanda & 2 Ors HB 31/24, the court had also had occasion to deal with the same principle and it had as follows at p 5 of the judgment:

“The point however is that the application was deemed abandoned and dismissed at the lapse of the period stipulated in the rules.  Where such happens a party has to seek the reinstatement of such an application, without seeking and obtaining such reinstatement a party cannot seek to be condoned on a matter that is not before the court.  If it has been dismissed what is the court condoning as there is nothing before it to condone.” (Underlying for emphasis).

I associate myself with the views of the learned judges in the above authorities. Once a matter is deemed to be abandoned, then it follows that such a matter is considered terminated in the eyes of the law. It ceases to exist. The failure to comply with r 58(14) rendered the application a nullity as against the party who was affected by the failure to file the proof of service required by the provision. The matter could not be resuscitated through a r 58(7) application.  While it is correct that Part VIII, of the rules provides an inbuilt remedy in r 58(7) for a party that seeks an extension of time, it cannot in my view, be resorted to in order to resuscitate a matter that was terminated by operation of law. Such a matter can only be brought back to life through an application for reinstatement.

The court determines that there is merit in the respondents’ objection. What was supposed to be placed before the court was an application for the reinstatement of the matter that was deemed abandoned, and not an application for extension of time.

The second issue was whether the deeming of the application as having been abandoned applied to all the respondents including those that had complied with r58(14). Put differently, the issue was whether the application was deemed abandoned as against all the respondents, or just the seventh respondent in respect of whom there was no compliance with r 58(14). Rule 32 (1) permits the joinder of parties as plaintiffs or applicants against the same defendant or respondents. The common denominator is that the dispute must give rise to a common question of law or fact.

The main application for rescission of the default judgment cited seven respondents. Proof of service of the application was served in respect of the first to sixth respondents. The proof of service of the application in respect of the seventh respondent was filed out of time. It meant that the applicants complied with r 58(14) in respect of the first to sixth respondents. The application for rescission is therefore properly before the court as against the first to sixth respondents. It could not be deemed to have been abandoned as against the first to sixth respondents when their certificates of service were filed in compliance with r 58(14).

Rule 58(15) is clear that where “proof of service is not filed with the Registrar in the manner and time specified, the application shall be deemed to be abandoned for that reason….”. What leads to the matter being deemed abandoned is the failure to file the proof of service in the manner and time specified by r 58(14). In the present matter, proof of service of the application on the first to sixth respondents was filed in the manner and time specified by r 58(14). The applicants can therefore not be penalised for an infraction which only relates to the seventh respondent.

Nothing stands in the way of the determination of the main matter to finality in the absence of the seventh respondent against whom the application was deemed to be abandoned. The court determines that the application was only deemed to abandoned as against the seventh respondents, but remains valid as against the first to sixth respondents.

Costs

As a general rule, costs follow the event. I see no reason to depart from this general rule in disposing of the present application which is improperly before the court.

Resultantly, it is ordered that:

The chamber application for extension of time within which to file proof of service of the court application for rescission of judgment on the seventh respondent is hereby struck off the role for being improperly before the court.

The applicants shall bear the first to fourth respondents’ costs of suit, jointly and severally, the one paying the others to be absolved.

Musithu J: …………………………………………………

Murisi & Associates, applicants’ legal practitioners

Zvobgo Attorneys, 1st to 4th respondents’ legal practitioners