Cho v Mau & Anor (HH 74 of 2004) [2004] ZWHHC 74 (23 March 2004)

HH 74/2004 HC 298/03 Ref: HC 4049/02 HC 4076/02 YOUNG GO CHO versus STALIN MAU MAU and THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE KAMOCHA J HARARE, 3 December 23 and 24 March 2004 Opposed Court Application Mr I. E. G. Msimbe, for the applicant Mr Mandizha, for 1st respondent No appearance from 2nd respondent KAMOCHA J: On 26 September 2002 the first respondent applied for and was granted an order that applicant's claims in cases numbers HC 1224/00, HC 4049/02 and HC 4076/02 be dismissed with costs on an attorney and client scale for want of prosecution. The applicant launched this application for the rescission of that judgement on the grounds that it was granted in error. He claimed that the application to dismiss his claims for want of prosecution was infact opposed. He asserted that the court failed to observe that his opposing papers were attached to his answering affidavit. He insisted that he had infact filed his opposing papers timeously. It is, however, difficult to understand how the judge who dealt with the application would have been unable to see the opposing papers if they were on file. The other parties also did not see the opposing papers which applicant claims were filed on 9 September 2002 (17 days prior to judgement) Before the respondent applied for the dismissal of the applicant's claims for want of prosecution his legal practitioners wrote to the applicant HH 74/2004 HC 298/03 through his legal practitioners urging them to prosecute the cases or risk dismissal in terms of Order 32 Rule 3(b) of the rules of court. The letter was not responded to nor did the applicant prosecute the claims. A reading of the files containing the cases of the applicant reveals that the applicant had been extremely tardy. For instance the original order in case No. HC 5129/98 was entered against applicant in default. In HC 864/02, the court entered a default judgement against him. He applied for rescission of case number HC 864/02 which was not prosecuted further. A default judgement was yet again entered against him in case number HC 4049/02 which judgement he now seeks to have rescinded. This type of practice should not be allowed to develop into the order of the day. Such dilatoriness by the applicant's legal practitioners is an inexcusable disrespect for the process of the court. (See Masama vs Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (s) at 120 E-F. also in Ndebele vs Ncube 1992 (1) ZLR 288 at 290 C-E MCNALLY JA had this to say- "It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then reargued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage vigilantibus non dormientibus jura subveniunt. Roughly translated, the law will help the vigilant but not the sluggard" This matter has been handled in a very perfunctory manner. I find the applicant's explanation to be unbelievable and unreasonable. The applicant did not disclose a bona fide defence. All he could say was that the matters are receiving attention. That, in my view, is not a defence. HH 74/2004 HC 298/03 In the result, I would dismiss the application with costs. I. E. G. Musimbe and Partners, applicant's legal practitioners Messrs Nduna and Partners , 1st respondent's legal practitioners