Elizabeth Manhenga v Andrew Whinya

### Preamble
1
HH 682-18
HC 3082/18
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ELIZABETH MANHENGA

versus

ANDREW WHINYA

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 24 September 2018 and 22 October 2018

Opposed matter

Mrs P Muchemwa, for the applicant

Respondent in person

MUNANGATI-MANONGWA J: The applicant Elizabeth Manhenga approached this court seeking dismissal of case number HC3420/17 for want of prosecution in terms of r 236 (4). The application she wants dismissed is an application for condonation of late noting of an appeal duly filed by the respondent. The facts of the matter are that the applicant and respondent who were customarily married appeared before this court in case HC3348/14 seeking an order for property sharing as between them. Judgment was then delivered on the 8th of March 2017 under case no HH152/17 wherein the applicant was awarded 50% share of property described as house number 17 Twiza Road Masasa.

The respondent failed to file an appeal against this judgment within the prescribed time limits.  However he filed an application for condonation for late noting of an appeal on the 19th of April 2017.  The application was opposed by the applicant and respondent in turn filed his answering affidavit on the 5th of May 2017. The respondent took no further action and to date that matter has not been prosecuted.

On the 5th of April 2018, a year after delivery of judgment the applicant approached this court by way of filing this application seeking dismissal of the respondent’s application for condonation for want of prosecution relying on r 236 (4) High Court Rules 1971. It is imperative to refer to both rules 236 (3) and (4). The said rules provide:

“(3) Where the respondent has filed a notice of opposition and an opposing affidavit and, within one 	month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for 	hearing, the respondent, on notice to the applicant, may either—

(a) set the matter down for hearing in terms of rule 223; or

(b) make a chamber application to dismiss the matter for want of prosecution, and the judge may order 	the matter to be dismissed with costs or make such other order on such terms as he thinks fit.

[Subrule substituted by s.i. 80 of 2000]

(4) Where the applicant has filed an answering affidavit in response to the respondent’s opposing 	affidavit but has not, within a month thereafter, set the matter down for hearing, the respondent, on 	notice to the applicant,

may either—

(a) set the matter down for hearing in terms of rule 223; or

(b) make a chamber application to dismiss the matter for want of prosecution, and the judge 			may order the matter to be dismissed with costs or make such other order on such terms as he 			thinks fit.

[Subrule substituted by s.i. 80 of 2000]”

Thus relying on r 236(4) it is the applicant’s case that as the respondent had filed his answering affidavit on the 5th of May 2017 he had a month to set his application down but did nothing for several months. Eleven (11) months later on the 5th of April 2018 she has had to file this application seeking the aforementioned relief. The application is opposed by the respondent.  Respondent blames the Registrar for failing to advise him accordingly as regards prosecution of his application. He also goes on to blame the former wife, that is, the applicant for not cooperating with him in terms of consenting to the upliftment of bar nor consenting to the condonation. He maintains that applicant should take the blame for being arrogant and uncooperative.  It is his argument that his application for condonation has merit and has got high prospects of success.

The respondent has indicated to court that he was making follow ups with the registrar regarding the progress of his application. On record is a response from the registrar addressed to the respondent which refers to respondent’s letter of 10 May 2018, well after this application had been filed. The court record shows that the Registrar wrote to the respondent on the 14th of May 2018 advising him vis the application for condonation to paginate and bind the record; provide proof of payment of the Sheriff’s costs for service of the notice of set down and file a notice of set-down. The applicant has submitted that this follow up was only triggered by this application.

The court observes that the respondent’s letter to the Registrar comes exactly 12 months after he filed his answering affidavit in the application for condonation which affidavit he filed on the 5th of May 2017. It is also being noted by this court that the respondent is benefiting from occupying the property that should have been shared. This explains why therefore he is not inclined to have the application for condonation heard and decided upon. He has an opportunity to apply for the upliftment of bar and seek condonation for the late noting of an appeal, he does not prosecute that application for a year.

There is no evidence on record apart from that one letter which comes after this application has already been instituted that he made follow ups regarding his application.  As the dominus litis in that case or as the applicant seeking condonation he should be at the forefront of pushing for the hearing of his case. One would have expected that he religiously pursues his application to enable it to be heard. Considering the time lapse between the filing of the last document in the application which is sought to be dismissed, that is from the 5th of May 2017 when the respondent filed his answering affidavit, it cannot by any means be said that the respondent is serious in terms of prosecuting his application for condonation.

This court would therefore not entertain instances where litigants file process, do not pursue their process and then seek this court to give them a lending ear when the other party has taken measures to ensure that finality entails in terms of closure. There is an applicant who already has a judgment in her favour. She has been unable to execute upon it because the respondent has filed an application in court.  She cannot be expected to wait to enjoy what it is the court has awarded her simply because the respondent is taking his time.  In Scotfin Limited v Mtetwa 2001 (1) ZLR 249 at p250C-E Chinhengo J under scored the purpose of order 32 rule 236 (4), when he said the intention of the laid out procedure is to ensure the expeditious prosecution of matters brought to the court. The learned judge further stated that

“the rule was deliberately designed to ensure that the court may dismiss the application if 	the principal litigant does not prosecute its case with due expedition. The rule gives a 	judge a discretion either to dismiss the matter or to make such other order as he may 	consider to be 	appropriate in the circumstances…..The primary intention of the law 	maker, … is to ensure that matters brought to court are dealt with due 	expedition….But in considering the 	application the judge can only make an order other 	than dismissal if the respondent has 	opposed the application and shown good cause why 	the application should not be dismissed.”

Whilst the respondent herein has opposed the application the question is has he shown good cause why the application should not be dismissed. In the court’s view that onus has not been discharged. That the case has got a matrimonial history does not in itself give the respondent the right to delay in prosecuting a case. Court rules simply have to be followed and adhered to. Further it is not the registrar’s duty to advise litigants on how to prosecute their cases there being institutions available to assist any indigent litigants. To try and blame the applicant for not cooperating with respondent is not only despicable but a desperate attempt by the respondent to make up for his inefficiency and lack of diligence. Waiting for a year before taking any remarkable action to ensure closure or taking steps to ensure that the application so filed is deliberated upon by the courts is inconsistent with a litigant who seeks finality. When judgment is delivered, in the absence of an appeal, in the absence of another judgments stating otherwise, a successful party should be able to enjoy the outcome of their case by executing upon the relief granted. This has not been the case for applicant.

As alluded before, the court takes it that the respondent has not been eager to see his matter brought to finality, because he is already benefiting. Also respondent has not presented to court any congent reasons that amount to good cause for the court to be swayed not to dismiss his application for condonation for want of prosecution. The courts as the ultimate resort for those seeking justice will not and cannot be seen to aid those litigants who wantonly disregard its rules to the prejudice of other litigants.

Accordingly, the application for dismissal for want of prosecution be and is here by granted. The respondent to bear the costs of this application.

Legal Resources Foundation, applicant’s legal practitioners