Wildlife AND Environment Zimbabwe V Allen Chinewaita

### Preamble
1
HCMTJ 42/24
HCMTC 237/24
3
HCMTC 237/24
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WILDLIFE AND ENVIRONMENT ZIMBABWE

versus

ALLEN CHINEWAITA

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 30 September 2024 & 2 October 2024

CHAMBER APPLICATION

Mr H.B.R Tanaya, for the applicant

Respondent in person

SIZIBA J: This is a chamber application for dismissal of a court application for want of prosecution in terms of r 59 (16) (b) of the High Court Rules, 2021. The said rule gives this court a discretion to dismiss a court application where an applicant has failed to set down a case after the period of month has elapsed after the filing of an answering affidavit.

BACKGROUND FACTS

It is common cause that on 9 May 2024, the respondent filed a court application before this court under case number HCMTC130/24 wherein he sought nullification of an Annual General Meeting that was held by the applicant on 9 March 2024. His prayer was that the court should declare that the said meeting was illegal, procedurally improper and unconstitutional in terms of the applicant’s constitution. He further sought for the setting aside of the results thereof and also an order directing that a fresh Annual General Meeting be held which would exclude those who registered or paid their subscriptions after 29 December 2023. The applicant filed its opposing papers on 24 May 2024. The respondent’s answering affidavit was filed on 28 June 2024 after follow ups by the applicant. The respondent has failed to move any inch towards finalization of this matter despite reminders from the applicant. The applicant filed the present application on 24 September 2024. The application is opposed by the respondent.

SUBMISSIONS BY THE PARTIES

Mr Tanaya submitted that this is a matter where the court should exercise its discretion to grant the dismissal for want of prosecution as the respondent has been dragging feet in all the important stages of this matter and thus showing that he is not keen to finalize it. He further submitted that since the respondent was served with this application, he has not taken any steps to have the case finalized. He also submitted that the main application has no prospects of success. His further submission was that the respondent has failed to demonstrate that he has any locus standi in the main case by failing to provide proof of membership. Mr Tanaya submitted further that the respondent’s claim that he was ill and that he was treated in Mozambique should be rejected since the document that he sought to rely on was in a language that the court cannot read and which is not an official language in Zimbabwe.

On the other hand, the respondent argued that the applicant should not be allowed to keep violating people’s rights by flouting procedures at its meetings. He insisted that he was ill and that when he was attended to by the medical personnel in Mozambique, they told him that they could only write the document in their own official language. He insisted that he had attached his membership card to his application. The respondent also conceded that after being served with the application for dismissal, he had not filed any papers in the main case as he was advised that he must wait until this matter was finalized.

THE APPLICABLE LAW

The law in relation to applications of this nature is well settled in this jurisdiction. The court enjoys a discretion whether or not to dismiss a matter for want of prosecution. This is apparent from the literal reading of the relevant rule. The relevant factors that must be considered by the court in the exercise of its discretion were highlighted by the Supreme Court in Guardforce Investments (Pvt) Ltd v Ndlovu and Others SC 24/16 at pp 5 to 6 where the court held thus:

“The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration –

(a)	the length of the delay and the explanation thereof;

(b)	the prospects of success on the merits;

(c)	the balance of convenience and the possible prejudice to the applicant caused by the other party’s failure to prosecute its case on time.”

Furthermore, at p 7 of the same case, the Supreme Court proceeded as follows:

“The only way the appellant could have shown that it was serious about the application for rescission was to proceed to have the matter set down after it was served with the chamber application for dismissal for want of prosecution.

The appellant’s non-compliance with the High Court Rules is twofold. First, the appellant failed to have the matter set down or file an answering affidavit within the prescribed time. Second, after the chamber application for dismissal for want of prosecution was filed, the appellant still did not attend to the finalisation of the application for rescission of the default judgment.”

The same approach above was adopted by this court in Chikuni and Another v Chikuni and Others HB 143/21.

APPLICATION OF THE LAW TO THE FACTS

The applicant’s case is unassailable on all fronts. Counsel’s submission that the respondent has not taken any steps towards setting this matter down after being served with the present application stands uncontroverted. Whoever advised the respondent to wait until this application is filed before requesting a set down in the main case misled him to his own peril. The history of this matter shows that the respondent has indeed been dragging his feet and moving at a snails’ pace and yet he is the dominus litis. In particular, it is a fact that the respondent has not managed to set the matter down after more than a month has elapsed since he filed his answering affidavit. He has also failed to attach a translated copy of the documents that he has relied on to try and prove that he was ill and undergoing treatment in Mozambique. Surely the respondent’s illness cannot be the only plausible reason advanced for the slow progress of this case from its inception. The respondent’s argument that he intends to engage a legal practitioner so as to address his rights which are being trampled on by the applicant does not rescue him from his present predicament.

In addition, the respondent’s main application seems to be devoid of any merit. He has failed to establish his locus standi by neglecting or failing to attach documentary proof of his membership with the applicant. His assertion that he tried to engage the applicant through his erstwhile lawyers over this matter before filing the present application is betrayed by the fact that the correspondence that he has relied on bear the names of one Brighton Mahwite rather than his own name. His allegations in the founding affidavit lack particularity in failing to specify the names of the alleged people who were not entitled to attend or vote in the Annual General Meeting. Clause 2.12 of the applicant’s Constitution speaks of the applicant’s National Council as being the final arbiter in interpreting the applicant’s Constitution and hence one wonders how the applicant can prove that his interpretation of the Constitution should be acceptable as opposed to that of the applicant.

It is inconvenient and unfair for the applicant to be assailed with an application by the respondent when he is not keen to finalize it. Such a scenario is also inconvenient to the court.  It adversely affects the rights of a litigant in terms of its future plans, budget and its reputation. The resultant prejudice is clear.

It is as a result of the above considerations that this application should be granted. I am not persuaded to award punitive costs against the respondent as his conduct does not warrant such a drastic approach. I cannot grant costs as well in the main case since the matter is not the one that is currently before me. It is accordingly ordered as follows:

The respondent’s court application under HCMTC 130/24 be and is hereby dismissed for want of prosecution.

The respondent shall pay the costs of this application.

Tanaya Law Firm, applicant’s legal practitioners