Pathfinder International (Pvt) Ltd v The Trustees of Alexander Club

HH 59-2011
                                                                                    HC 8608/10


PATHFINDER INTERNATIONAL (PVT) LTD
versus
THE TRUSTEES OF ALEXANDER CLUB


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 24 February 2011 and 25 February 2011


Mr Mabulala, for the applicant
Mr Machingambi, for the respondent

       BHUNU J: The respondent is the applicant’s tenant. The parties are engaged in
litigation under case Number HC 5940/2010 wherein the applicant has instituted eviction
proceedings against the respondent.
       On 26 November 2010 the respondent filed a Court application seeking to amend its
plea filed on 4 November 2010 where upon the applicant filed its notice of opposition on 9
December 2010. A period of more than one month has since expired without the respondent
prosecuting its application.
       The respondent ought to have filed its answering affidavit or set the matter down for
hearing within a period of one month in terms of r 236 (3). Failure to do so entitled the
applicant to apply for the dismissal of the application for want of prosecution. To date the
respondent has neither filed an answering affidavit nor set down the matter for hearing in
terms of the rules.
       The applicant has now filed a chamber application seeking the dismissal of the
applicant’s application to amend its plea. At the hearing in my chambers it emerged that the
respondent had no reasonable excuse for its failure to comply with the rules other than to delay
proceedings as it is currently occupying the applicant’s premises without paying any rentals.
That being the case, this application can only succeed. The respondent’s conduct in this regard
is reprehensible as it amounts to an abuse of process. The Court can only express its
displeasure by an award of adverse costs.
       It is accordingly ordered that the court application filed by the respondent in Case No.
HC 8608/10 be and is hereby dismissed with costs at the legal practitioner client scale.
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HH 59-2011
HC 8608/10

Mabulala and Motsi, applicant’s legal practitioners
Machingambi Legal Practitioners, respondent’s legal practitioners