Fidelity Life Financial Services (Pvt) Ltd v Elliot Somane and Crayseal Trading (Pvt) Ltd

### Preamble
1
HH 342-12
HC 2378/12
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FIDELITY LIFE FINANCIAL SERVICES

(PVT) LTD

versus

ELLIOT SOMANE

and

CRAYSEAL TRADING (PVT) LTD

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 6 September 2012 & 12 September 2012

Ms C.K.Chidowe, for the applicant

First respondent in person

Second respondent in default

MATHONSI J:	This is an application for an order joining the second respondent as a party to the proceedings launched by the applicant by summons action in case No. HC 9536/11.  The basis of the application is that the second respondent has a substantial interest in those proceedings and may be affected by the decision made in that matter.

The second respondent did not oppose the application.  Initially the first respondent filed opposition but on 21 May 2012 he relented and filed a notice withdrawing the opposition on the basis that when he filed it he had “labored (sic) under a misapprehension.”  Essentially therefore, the matter became unopposed.

When it came before me on 6 September 2012, the applicant was initially not in attendance but the first respondent appeared in person.  I enquired from the first respondent why he had come to court given that he had withdrawn his opposition.  He submitted that he had merely responded to the notice of set down and confirmed that he was not opposed to the order sought he having withdrawn his notice of opposition.  As there was no one prosecuting the application I then struck the matter from the role and the first respondent was excused.

Ms Chidowe for the applicant subsequently appeared during the course of the apposed roll and applied for reinstatement of the matter apologising that she had assumed the set down was for 10 am instead of 9 am on the notice.  Indulged the applicant but the difficulty was that the first respondent had already been excused.

I agree with Ms Chidowe that there is no prejudice whatsoever on the part of the first respondent if the order is granted in light of the fact that, not only was the matter unopposed regard being had to the fact that the opposition was withdrawn, but also that the applicant was entitled to set the matter down without notice to the first respondent.  I am fortified in that view by the first respondent’s own submissions made earlier that he was not opposed to the order sought.

It was for that reason that I reinstated the matter and granted the order in terms of the draft, to wit, that;

The second respondent be and is hereby joined as the second defendant in High Court Case No. HC 9536/11.

The costs of this application shall be costs in the cause in case No. HC 9536/11

Mawere & Sibanda, applicant’s legal practitioners