Deep Overseas Company v Yorkdale Enterprises (Pvt) Ltd & 2 Ors

### Preamble
1
HH 212-21
HC 785/20
HC 785/20
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DEEP OVERSEAS COMPANY

versus

YORKDALE ENTERPRISES (PVT) LTD

and

FREEWORK INVESTMENTS

and

AIYUB BHAI PATEL

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 18 March & 21 April 2021

Opposed application

S. Mushonga, for applicant

N.B. Munyoro, for 1st and 3rd respondents

TAGU J: This is an application for reinstatement of case number HC 6528/18 on the roll pursuant to the provisions of paragraph 7 of Practice Direction 2 of 2013 and other ancillary reliefs.

The background facts to this application are that the Applicant issued summons against the Respondents under case number HC 8169/17. All pleadings were filed and closed. On the 8th day of June 2018 a Pre-Trial Conference was convened before a Judge of the High Court. The Judge insisted that a representative of the Applicant must come for the Pre-Trial Conference on the 11th July 2018 all the way from India to Zimbabwe in order to clarify certain aspects of the matter. On the 6th July 2018 the Applicant’s clerk checked with the Judge’s clerk one NOMSA to confirm the time for the Pre-Trial Conference. The Judge’s clerk advised that the Pre-Trial conference will be at 3pm because the Judge was engaged in the morning. Coincidentally the Judge’s clerk left on the 6th of July 2018 to become a Magistrate. The Judge got a new clerk on the 9th of July 2018 who did not know about the rescheduled Pre-Trial Conference arrangement made by NOMSA on the 6th of July 2018. On the 11th July 2018 the Applicant’s representative and its legal practitioners were in attendance at the High Court for the Pre-Trial Conference at 14.15hours. They were surprised when they met a new clerk to the Judge who advised them that the matter had already been heard at 10.00am and the matter had been dismissed because they were in default. The Applicant made an application for rescission under case number HC 6528/18 which was heard by the same Judge who upheld a point in limine raised by the Respondents on the 2nd of November 2018 that the Applicant had not attached an authenticated board resolution as a peregrinus as required by rule 3 of the High Court (Authentication) Rules, 1971. The Judge then dismissed the Applicant’s application for rescission under case number HH 721/18.

Dissatisfied by the Judge’s decision the Applicant appealed to the Supreme Court. The Applicant was successful and the Supreme Court in case Number SC 894/18 made the following order on the 17th day of May 2019-

“IT IS ORDERED THAT:-

The appeal succeeds.

The judgment of the court a quo is set aside and substituted with:

“the application is truck off the roll with costs.”

The application was reset down for hearing on the 13th of November 2019 but was once again removed from the roll on the basis that the Applicant had not paid the costs which MANZUNZU J granted to the Respondents. The Registrar of the High Court then on the 15th November 2019 directed a letter to the Applicant’s legal Practitioners which said-

“We refer to the above matter which was postponed sine die/removed from the roll by the Honorable Judge on13/11/2019.

Please be advised that in terms of paragraph 10 of practice direction 3/13, you have 3 months, calculated from the date of postponement/ removal from the roll, within which to set this matter down.

Failure to set the matter down within the stipulated time will result in the registrar regarding the matter as abandoned and deeming it to have lapsed in terms of paragraph 10 of practice direction 3/13.”

In compliance with the registrar’s directive, the Applicant is approaching this court for re-enrolment of the case.

The 1st and 3rd Respondents resisted the application. In their Notice of Opposition the 1st and 3rd Respondents raised two points in limine. At the hearing of this matter Mr. N.B. Munyoro withdraw the points in limine. He however, raised two more points in limine. The first one being that this matter is improperly before the court. He said the matter was struck off the roll by the order of the Supreme Court on the 11th of May 2019. This application was filed out of time for the Applicant failed to reset the matter within 30 days and ought to be dismissed. Secondly, he said the Applicant failed to file an answering affidavit meaning they did not deny what they said in their Notice of Opposition hence prayed for costs on a higher scale.

The points in limine were opposed by the Applicant. It was submitted on behalf of the Applicant that when matter was struck of the roll it was reset, but struck off the roll again. The Applicant insisted the case is properly before the court since the issue of costs and condonation were attended to. It said an application for condonation was applied for on the 31st January 2020 a period of two (2) months which cannot be said to be inordinate if regard is heard to the removal from the roll on 13th November 2020.

What is clear from the papers filed of record is that the matter was struck off the roll by the Supreme Court on the 17th of May 2019. The matter was reenrolled and set down for hearing on the 13th of November 2019. On that day it was struck off the roll again. This application to reenroll the matter was filed on the 31st. January 2020. I think counsel for the Respondents in his oral submission wanted to say the matter should have been reenrolled within 3 months when he said 30 days. Further, he missed the point that this matter having been reenrolled after the Supreme Court order, was struck off the roll again on the 13th of November 2019. The time within which the Applicant was to reenroll the case must have expired on or about the 13th of February 2020 if the 3 months are calculated from the 13th of November 2019 in terms of paragraph 10 of the practice direction 3/13. The 3 months cannot be calculated from the 17th of May 2019 but the date it was last struck off the roll. In casu the Applicant filed an application for reenrollment on the 31st of January 2020 which was within 3 months. I therefore find this point in limine to lack merit and is dismissed.

On the issue that the Applicant did not file an answering affidavit, I am of the view that it is not a basis for dismissing the application or ordering of costs on a higher scale.

This is an application for leave for the reinstatement of a High Court Application in HC 6528/18 on the roll in terms of order 32 of the High Court Rules, 1971. The Case HC 6528/18 had been struck off the roll twice on technicalities before the matter was heard on the merits.

In Mpofu v Commissioner of Police SC 15/2008 the Supreme Court held that where reinstatement is being sort by a party because of a technicality not of his own making, it would be a travesty of justice to prevent a party from seeking reinstatement. See also Dalny Mine v Banda 1991 (1) ZLR 220 (SC) where the Supreme Court reiterated that matters should be determined on the basis of merits and not on the basis of technical irregularities. In my view the Applicant has bright prospects of success on the main matter because the Judge’s new clerk had made a mistake as he/she the set the Pre-Trial Conference for 1000 hrs instead of in the afternoon as had been set by the former clerk. Which time had been communicated to the Applicant’s Lawyers. To clink to the default judgment would be tantamount to snatching at a judgment. The Applicant must be allowed to have its day in court. If the application for rescission if dismissed, then the Respondents will have nothing to lose. If it is granted still they will have an opportunity to defend themselves and will not be prejudiced because the Applicant is offering to pay Respondents’ costs on a party to party scale. I will therefore grant the application.

IT IS ORDERED THAT

The application is granted.

The application for reinstatement of the court application in case number HC 6528/18 is granted and the application is accordingly reinstated.

Applicant shall pay respondents’ costs on a party to party scale.

Mushonga Mutsairo & Associates, applicant’s legal practitioners

Muvingi & Mugadza, 1st and 3rd respondents’ legal practitioners.