Methodist Church in Zimbabwe v The Trustees of Rusape Community Church and The United Methodist Church and The Registrar of Deeds

### Preamble
1
HH 302-12
HC 2173/10
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METHODIST CHURCH IN ZIMBABWE

versus

THE TRUSTEES OF RUSAPE COMMUNITY CHURCH

and

THE UNITED METHODIST CHURCH

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 July 2012

The plaintiff in default

Adv.  R. Fitches, for the 1st & 2nd defendants

MATHONSI J:  Throughout the 2nd term we have been setting this matter down for trial. On each occasion the plaintiff’s counsel has been unable to attend either because he was in the Supreme Court or was not feeling well.

On 26 June 2012 both counsel appeared before me and agreed that the matter be postponed to today. I then made the following order; that:-

“1.	The matter is postponed to 19 July 2012 at 9.00 a.m. for argument on all preliminary points the parties may want to raise.

2.	The defendants to file written submissions on the preliminary points by Friday the 6th July 2012.

3.	The plaintiff to file a response to the submissions by 9th July 2012.

4.	There be no order as to costs”.

The plaintiff’s counsel has failed to appear in court today. Counsel for the

defendant indicates that he has telephoned him and he says he is unable to attend because he is at the Supreme Court. A messenger from the law firm representing the plaintiff has appeared in my chambers to advise that Ms Gasa, the instructing attorney, is in Bindura and unable to attend.

Clearly there is no desire on the part of the plaintiff to prosecute the matter. Counsel for the defendant has submitted that the matter be returned to the Registrar’s office in light of the cavalier approach of the plaintiff.

Had the matter been coming for trial today, I would have simply dismissed it by reason of the default. Now that it was for argument on the preliminary point, I cannot do that.

I cannot continue being seized with a matter which is not being prosecuted.

Accordingly I make the following order, that:-

The matter is hereby remitted to the office of the Registrar for filing.

Should the plaintiff desire to set the matter down again, it must submit a written explanation for its failure to prosecute the matter, to the satisfaction of the registrar

The plaintiff shall bear the defendant’s wasted costs on a legal practitioner and client scale.

Gasa Nyamadzawo & Associates, plaintiff’s legal practitioners

Henning Lock, 1st & 2nd defendants’ legal practitioners c/o Coghlan Welsh & Guest