Gumisai Mawadzi v Ratidzai Hazel Mawadzi

### Preamble
1
HCMTJ 43/24
HCMTC 192/24
3
HCMTC 192/24
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GUMISAI MAWADZI

versus

RATIDZAI HAZEL MAWADZI

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 30 September 2024 & 2 OCTOBER 2024

CHAMBER APPLICATION

Advocate F. Chiwawadzimba, for the applicant

Ms. D. Mutungura with Mr P. Nyakureba, for the respondent

SIZIBA J: The applicant has approached this court seeking leave to reinstate case number HC 129/18 (hereinafter referred to as the main case) which case was deemed abandoned and dismissed on 7 December 2022. Applicant and respondent are husband and wife respectively. The main case sought to be reinstated was a matrimonial action. The respondent has opposed the application mainly on two grounds. The first ground is the point in limine that the application has no legal standing at law while the second ground is that the application lacks merit. At the hearing of this matter, I directed the parties to address me on the point in limine and also on the merits so that if the point in limine is upheld, there will be no need to decide the merits of the case while on the other hand, if the point in limine fails, I will then decide the merits as well.

Prior to the dismissal of the main case and in particular on 15 November 2022, the Registrar of this court wrote a letter to the parties in the following terms:

“Reference is made to the above matter which was issued on 18/09/2018.

We have noted that the matter has remained dormant to date. May you attend to the processes towards finalization of the matter. Failure to do so within 14 days from the date of service of this letter, it shall be referred to a judge in terms of rule 7 of the High Court Rules, 2021 for directions.”

The subsequent letter on 7 December 2022 was as follows:

“Reference is made to the above matter and to our letter dated 15 November.

Having failed to comply with the above letter, the matter was put before a judge in terms of rule 7 of the High Court Rules, 2021 and is deemed to have been abandoned and dismissed.”

According to applicant’s papers and oral submissions by his counsel, the dismissal of the main case was in terms of para 2.1 of Practice Directive 1 of 2022 which could be resolved by seeking leave of the judge in terms of para 3.2 of the same practice directive. I disagree. The said provisions of Practice Directive 1 of 2022 do not deal with the present scenario. Those provisions only deal with the lapsing of summons in terms of r 84 of the High Court Rules, 2021. The summons only lapse if there are not served for a period of two years or if after service, no action is taken by the plaintiff for the same period of time. In this scenario, the summons were served and the case was prosecuted even beyond pre–trial conference and hence the summons cannot be said to have lapsed. When the matter was referred to the judge, he or she never said that the summons had lapsed.

To further demonstrate that my interpretation of the said Practice Directive is correct, r 31(3) of the High Court Rules, 2021 addresses a scenario where the plaintiff fails to act after a Plea has been filed by giving the defendant the liberty to apply for dismissal of the action for want of prosecution. The summons cannot lapse once the defendant has defended an action. After the closure of pleadings, the defendant is also allowed together with the plaintiff in terms of r 49(1) to request a date for the pre – trial conference. Rule 54 also allows either party to apply for a date of trial and hence the summons cannot be said to lapse at that stage.

In the main matter, the letters from the Registrar are clear that the matter was dealt with in terms of r 7. What this means in simple terms is that the matter was dismissed in the exercise of the court’s inherent power in an instance where there was no provision in the rules to cater for the parties’ inaction. It is for this reason that I disagree that the matter should be reinstated in terms of Practice Direction 1 of 2022. In the case of Munyorovi v Sakonda HH – 467–21 at pp 7 to 8 of the cyclostyled judgment, the court articulated the position as follows:

“Rule 4C is restated in the same terms in r7 (a) of the new rules. The rule makes provision for noncompliance with the rules and permits departures from any provision of the rules, the extension of time of any periods specified in the rules and removal of bars. It confers general and extensive powers of condonation to the court and gives the court discretion to condone departures from the rules on good cause shown. It must be shown that the departure is required in the interests of justice.

The rules are made for the court and not the court for the rules, see Chikura and Anor v Al Shams Global BVI Ltd SC 17 /17.”

Having said such, the question is now whether the application should be dismissed by reason that a wrong provision has been cited as a basis for the application. I do not think so. The trite position is that an application should stand or fall on the basis of the averments made in the founding affidavit. In the founding affidavit, the applicant has clearly articulated that he is seeking leave of the court to reinstate the main case that was deemed abandoned and dismissed. The reasons why the application has been made clearly appear on the founding affidavit and I shall revert to them shortly.

The respondent’s other argument is that the applicant ought to have sought condonation from the court to extend the 14 day timeframe which was given in the first letter dated 15 November 2022. I disagree. Once the matter was deemed abandoned and dismissed, the previous letter was overtaken by events and for one to remedy the non - compliance, the application for reinstatement suffices. The court dismissed the matter in the exercise of its inherent power to act outside of the rules in terms of r 7 and hence what is needed now is to show that there is good cause to reinstate the matter and this can only be done by providing an explanation for the failure to act and also showing the prospects of success. See Chinganga v Shava and Others SC 12/22, Dube v Matseka SC 48/23. I do not find merit in the respondent’s point in limine.

On the merits, the material aspects of this case are common cause. It is common cause that the main action was filed on 17 September 2018 by the applicant. It is common cause also that the main case had progressed up to the pre–trial conference stage. The parties held a pre – trial conference before Mwayera J (as she then was) and signed a Joint Pre-Trial Minute dated 21 October 2020. A trial date was requested by the respondent’s legal practitioners and the Registrar did not provide it. It is also common cause that the letters from the Registrar dated 15 November 2022 and 7 December 2022 did not reach the applicant or his lawyers. It is also common cause that the parties had been engaging each other about a possible settlement of the matter even up to April 2023. A follow up letter was written to the Registrar by the respondent’s legal practitioners on the issue of a trial date on 20 July 2023. Some of the issues which had been in contention had been settled by the parties. On 11 June 2024, the respondent issued fresh summons for divorce and when the applicant argued that the matter is lis pendens, applicant’s lawyers were then shown the letter by the Registrar which confirmed that the main case had been deemed abandoned and dismissed. The respondents are pressing forward to have the new action proceed and they have indicated that they shall be seeking a contribution for costs of the matrimonial action from the applicant in the sum of US$15 000.00.

I am persuaded by the applicant that it is in the interests of justice that the main matter be reinstated. The main case was dismissed when the judge was under the impression that no action was being taken whilst the parties were already waiting for a trial date from the Registrar. The fact that the trial date had been requested by the respondent rather than the applicant who was the plaintiff is neither here nor there as the rules allow both parties to determine the pace of litigation once the pleadings are closed. Great progress had already been made in the main action in terms of settling some of the contentious issues, defining the issues for trial and also moving towards finality of the matter. It will be costly for both parties to pursue the fresh case than to complete the main matter and this is already shown by respondent’s indication that she will require a contribution of costs from the applicant in the sum of US$15 000. There was no undue delay in filing of this application as soon as the applicant became aware that the main case had been deemed abandoned and dismissed. A reasonable explanation why the matter was dismissed has been provided. The prospects of success in this context are not of much relevance as there is no winner or loser in a matrimonial action. What is important is a speedy and effective resolution of the case.

It is therefore for the above reasons that I am persuaded that this is a matter where the court may exercise its inherent power to reinstate the main case. I am not persuaded to award any costs to the applicant for the reason that the respondent is the one who has been pushing towards finality of the main case in so far as applying for trial dates and making follow ups is concerned. It is fair that each party bears its own costs considering that this is a matrimonial matter. It is accordingly ordered as follows:

The respondent’s point in limine be and is hereby dismissed.

The matrimonial action in HC129 /18 be and is hereby reinstated.

Each party shall bear its own costs.

Makombe & Associates, applicant’s legal practitioners

Maunga, Maanda & Associates, respondent’s legal practitioners