RAMWIDE INVESTMENTS (PVT) LTD v
RONDEBUILD ZIMBABWE (PVT) LTD & ORS

HIGH COURT, HARARE

[Opposed Application HH 444-16]

May 10 and July 27, 2016

MATANDA-MOYO J

Practice and procedure - Urgent chamber application - Struck off the roll - Effect of - Procedure for enrolling matter on correct roll.

The matter had commenced as an urgent chamber application but had been struck off the roll on the basis that it was not urgent. The applicant had simply continued with the prosecution of the matter on the roll of opposed matters. The respondents argued that the matter having been struck off the roll could not be properly enrolled without a special order of court.

Held, that the decision to strike a matter off the roll of urgent matters has the effect of automatically transferring it to the ordinary roll.

Held, further, that there is no procedure set out in the rules to be followed once a matter has been struck off. The court will consider whether any procedure followed by a litigant has occasioned prejudice in the absence of which it will be slow to interfere with the procedure.

Cases cited:

Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S), referred to

Jensen v Acavalos 1993 (1) ZLR 216 (S), distinguished

Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2)
ZLR 147 (S), referred to

S v Ncube 1990 (2) ZLR 303 (S), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971)

Superior Court Practice Direction, No 3 of 2013

Supreme Court (Miscellaneous Appeals and References) Rules, 1975 (RGN 449 of 1975), rr 4 (2), 7 (b)

T Zhuwarara, for the applicant

T Moyo, for the first respondent

RC Muchenje, for the second respondent

S Nyagura with T Marume, for the third respondent

MATANDA-MOYO J:

At the onset of the proceedings Mr Moyo for the first respondent raised a point in limine that this application was on, 23 September 2015, struck off the roll with costs and the court ruled that the matter was not urgent. In terms of Superior Court Practice Direction, No 3 of 2013 ("Practice Direction 3/2013") issued by the Chief Justice "struck off the roll" is defined as:

"3 The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place."

{mprestriction ids="1,2,3"}

Counsel argued that the term "struck off the roll" meant the matter was no longer before the court and the Registrar was not entitled to set the matter down without an order of court. Counsel argued that the present application fell foul of Practice Direction 3/2013 and no judgment can be issued in respect of this matter. He submitted that the applicant was enjoined to apply for the enrolment of the matter and obtain such an order before the matter could be heard. For such proposition he referred me to the cases of Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S v Ncube 1990 (2) ZLR 303 (S).

Mr Zhuwarara for the applicant opposed the point in limine taken by counsel for the first respondent. His argument was that this application commenced as an urgent application. The judge who heard the matter struck the matter off the roll of urgent matters. Her ruling was to the effect that the matter was not urgent, meaning the matter was to be enrolled on the normal roll. He further argued that this Court should consider what prompted the Chief Justice to issue Practice Directive 3/2013. He submitted that the Practice Direction 3/2013 was introduced as a result of appeals which were defective and removed from the roll. Such appeals required a court order to the effect of compliance with the rules before re-enrolment. He urged this Court to distinguish the two processes of striking off the roll of urgent matters and that of striking off defective appeals. He urged this Court to find that the application was properly before the court.

I have perused the initial urgent application filed by the applicant case HC 7927-15 refers and the judgment thereon. It is clear from a reading of the said judgment that the judge ruled the matter not to be urgent. Such matter was struck off the roll of urgent matters. The issue falling for determination is "what is the meaning of strike off the roll". Is such "striking off" the roll in terms of Practice Direction 3/2013? My view is that when a matter is struck off the roll of urgent matters it simply means that the matter was enrolled on the wrong roll. The matter was not "urgent" in terms of the rules and such matter should proceed by way of ordinary application as opposed to urgent application. Simply put it means the matter failed to qualify to jump the que and be heard ahead of other matters on the ordinary roll. It failed to qualify as warranting to be treated as critical or high priority and deserving of immediate attention.

The application was not defective but was only ruled not to be urgent. There is nothing that prevents the same application to be enrolled on the correct roll and be determined.

The arguments advanced by counsel for the first respondent are the same arguments which were advanced in the case of Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S). The above matter related to an appeal which had previously been struck off the roll for failure to comply with rr 4 (2) and
7 (b) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 (RGN 449 of 1975). The applicant applied for reinstatement of such appeal. The court found that the applicant had filed a wrong application. The court held that once an appeal has been struck off the roll for failure to comply with the rules, it means such an appeal is a nullity. It follows that there can be no reinstatement of that which is a nullity. Such appeal would be fatally defective and invalid. The Supreme Court in that case quoted with approval the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220B. Once an appeal is found to be defective, such appeal cannot be reinstated. The matter can only be re-enrolled upon rectification of such defects. Such a matter is distinguishable from the present case. The present case does not relate to reinstatement of a matter on the same roll. The present matter involves transferring matter from a wrong roll to the correct roll.

The urgent application was disposed of on 23 September 2015. The applicant proceeded to file an answering affidavit on 21 January 2015. The applicant did not re-serve the application on the respondents but simply proceeded to file an answering affidavit. On 21 January 2016, the applicant also filed heads of argument in the matter. The second respondent filed its heads on 4 February 2016. The first respondent filed its heads of argument on 18 May 2016.

The other issue which falls for determination is "what is the procedure of enrolling a matter ruled not to be urgent on the ordinary roll; Does the process entail re-issuing process or it simply entails transfer of the same matter to the ordinary roll." It is common cause that the High Court Rules, 1971 (RGN 1047 of 1971) are silent on the matter. Practice Direction 3/2013 does not deal with this aspect either. There is a vacuum on the procedure to be employed. The first respondent is of the view that after being struck off the roll, this matter was no longer before the court. He argued that a court order was supposed to be obtained by the applicant for the enrolment of the matter on the ordinary roll. The Registrar could not have lawfully set the matter down without the order of court. The problem with this submission is that the first respondent had failed to show that the urgent application "was fatally defective and should not have been enrolled in the form in the first place" as per para 3 of Practice Direction 3/2013. Paragraph 4 provides:

"such a matter can only be re-enrolled following an application for which an appropriate court order is issued. The Registrar shall not reset the matter without a court order."

"Re" as appearing above means "again". It is the process of bringing back the same matter on the same roll. Such process as I have said above differs from the present scenario involving moving a matter from one roll to another.

The applicant herein simply proceeded with the matter on a different roll. The same application was proceeded with albeit on a different roll. As I said above, the rules do not provide for a procedure of moving a matter from the urgent roll to the ordinary roll. I must therefore look at the procedure adopted by the applicant to find whether it occasioned any prejudice on the other parties. None of the respondents in their papers allege that any prejudice was occasioned to them. None of the respondents indicated they wished to supplement their opposing papers before the matter could proceed. Without such averments on prejudice I am unable to find that the procedure adopted by the applicant is wrong. The application remained pending before this Court but on the ordinary roll. Nothing could prevent the applicant from continuing with the same application on the ordinary roll. My view is that the decision to "strike off" the roll of urgent matters has effect of automatically transferring the matter to the ordinary roll, in the same form.

The major difference between an urgent application and an ordinary application is that in an ordinary application the respondent is given 10 days within which to file his/her notice of opposition. The other requirements are the same. Had respondents desired filing of further papers, such an indulgence would have been granted them as with urgent application the time limits within which to file opposing papers are shorter. I am not persuaded by arguments advanced in favour of the point in limine by the first respondent and such point in limine fails.

[Editor's note: The remainder of the judgment is not material to this report.]

Gill Godlonton & Gerrans, applicant's legal practitioners

Tamuka Moyo Attorneys, first respondent's legal practitioners

Nenjy Nyamapfeni Law Practice, second respondent's legal practitioners

Matsikidze & Mucheche, third respondent's legal practitioners

{/mprestriction}