Dube V Premier Medical Investments (Private) Limited and Another (32 of 2022) (2022) ZWSC 32 (24 February 2022)
Dube V Premier Medical Investments (Private) Limited and Another (32 of 2022) (2022) ZWSC 32 (24 February 2022)
SC 32/22
1
Civil Appeal No. SC 289/21
REPORTABLE (28 )
MATHONSI JA: On 7 July 2021 the High Court (“the court a quo”) dismissed
an application brought against the respondents by the appellant for want of prosecution with costs.
It also ordered the appellant to pay the costs of the application, brought by the first and second
respondents for the dismissal of the main application. This appeal is against that judgment.
THE FACTS
Both respondents are incorporated in terms of the laws of this country and are sister
companies. The second respondent is a medical aid society while the first respondent is its
investment vehicle. For quite some time the appellant was the second respondent’s Chief
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Executive Officer, a position he vacated prior to the commencement of the proceedings forming
On 27 March 2018, the appellant brought a court application in the court a quo for
a declaratory order to the effect that he was the holder of ten million shares, representing a 20%
shareholding in the first respondent. He also sought a declaration that the conduct of the first and
second respondents of regarding him as not being a shareholder was unlawful, null and void and
of no force or effect. He also sought costs on the scale of legal practitioner and client.
The basis of the application, as stated in the founding affidavit, was that the
appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached
a copy of a share certificate issued to him and signed by two directors of the first respondent whose
names are not disclosed in the certificate. While alleging that he paid for the shares, he did not
According to the appellant, what prompted him to make the application for a
declaratory order was the first and second respondents’ refusal to acknowledge him as the holder
of the shares in question. This followed a meeting of the second respondent held on 21 May 2015
which resolved not to ratify the award of the 20% shareholding in the first respondent to the
appellant.
On 11 April 2018, the respondents filed opposition to the application for the
declaratory orders. The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of
the Board of Directors of the second respondent, who denied that the appellant was ever a
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shareholder of the first respondent. The respondents also took the view that there were disputes
of fact and put in issue the circumstances under which the appellant had purported to acquire the
shares at a time he was the Chief Executive Officer of the second respondent.
According to the respondents, the appellant obtained the share certificate he relied
on “either illegally, fraudulently or without following due process” as set out in the first
respondent’s regulations. Significantly, the respondents confirmed that the appellant had
deposited a cheque of Z$6 585 672 555.75 into the second respondent’s bank account.
The respondents’ view was that a mere deposition of the above amount in the bank
account was improper and motivated by fraudulent intent on the part of the appellant. In any event,
so the respondents argued, while the payment for the 15% shares (not 20%), should have been
made on 25 April 2007 it was only made on 19 March 2008 when the amount had been ravaged
It was also the respondents’ case that the purported sale of the 15% shares and a
donation of 5% shares to the appellant was done without the authority of the board and/or the
shareholders. The appellant took advantage of his position as the Chief Executive Officer to
It is common cause that the appellant did not act upon the notice of opposition filed
by the respondents within the time allowed by the rules of court or at all. This prompted the
respondents to file the initial application for dismissal of the application for want of prosecution
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under case number HC 11129/18. The application was opposed by the appellant and subsequently
Again, it is common cause that on the date of the hearing, following negotiations
between the parties, the respondents withdrew the initial application for dismissal for want of
prosecution. This was on the understanding that the appellant would purge his default by filing
the outstanding pleadings in the main application and prosecute it. He did not.
When the appellant did not honour his undertaking to prosecute the main matter for
about 5 months, the respondents filed the second application for dismissal for want of prosecution
in terms of r 236 (3) (b) of the High Court Rules, 1971 on 2 August 2019. It is that application
which forms the basis of the present appeal. In the founding affidavit, again deposed to by the
chairman of the Board of Directors of the second respondent on behalf of both of them, the
respondents stated that following their filing of their opposition on 11 April 2018, the appellant
had neither filed an answering affidavit nor set the matter down for hearing.
application which saw him failing to file heads of argument even in the initial application for
dismissal. They stated that even after being accorded the second chance to redeem himself the
appellant had snubbed the opportunity and done absolutely nothing until a second application for
After stating that they had elected to file the application for dismissal for want of
prosecution instead of setting the main matter down for hearing as they are entitled to do in terms
of the rule, the respondents ended there. They urged the court to grant the order for dismissal on
In opposing the application, the appellant took issue with the authority of the
deponent of the founding affidavit to represent the respondents. He contended that one person
could not lawfully represent two separate artificial persons and that the resolutions relied upon by
the respondents were invalid by reason that the signatories’ names were not declared.
His only explanation for the delay in prosecuting the application was that, to the
knowledge of the respondents, he had “not been feeling well for a long time” which affected his
The appellant insisted that he owns 20% shares in the first respondent and should
be allowed to pursue his claim, otherwise his property rights would be infringed. It is also
important to note that the appellant made two assertions which have a bearing on the resolution of
this appeal.
In para 6 of his opposing affidavit, in response to the accusation that he had not
filed an answering affidavit or taken steps to set down the matter down, the appellant stated that:
Regarding the question whether the respondents had made a good case for the relief
8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.
8.2. The founding affidavit does not advance any grounds for the court to exercise its
discretion in favour of dismissal instead of determining the main matter on the merits.
The applicants just want a dismissal because they are asking for it.”
The court a quo found that it was both convenient and logical for the deponent of
the founding affidavit to represent the respondents as he had knowledge of the shareholding
structure of the first respondent. In the court a quo’s view a company has the liberty to authorize
It found that the delay in responding to the pleadings was evidence of the
appellant’s non-committal to finalize the matter because if it had been of importance to him, the
appellant would have pursued the matter with diligence. In the court a quo’s view the
unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay. It
The appellant was aggrieved. He launched this appeal on the following grounds:
1. The court a quo misdirected itself and erred in law in not finding, in limine, that the
respondents were not properly before it for the reason that the deponent to the
on their behalf.
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the court a quo improperly exercised its discretion in that it only took into account
one factor, namely the reasonableness of the explanation for inaction, instead of also
taking into account other mandatory factors such as possible prejudice to the
respondents’ appellant’s (sic) prospects of success on the merits and the balance of
convenience.
3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in
prosecution without an analysis of, and application of its mind to all the mandatory
4. With the court a quo having refused to take into account the established fact that the
appellant’s application under HC 2821/18 had been ready for set down for a
considerable period, its decision to dismiss the application for want of prosecution was
5. The court a quo’s finding that the appellant’s explanation for the delay in prosecuting
applying its mind to the circumstances of the case, could ever have made such a
decision.
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I mention in passing that some of the 5 grounds of appeal are repetitive and
inconcise. They do not meet the threshold set by r 44. As the issue was not raised with the parties
at the hearing of the appeal, it shall not be considered in the determination of the appeal.
From the grounds of appeal and submissions made by counsel only one issue
commends itself for determination in this appeal. It is whether the court a quo properly exercised
SUBMISSIONS ON APPEAL
At the commencement of the hearing, Mr Madhuku who appeared for the appellant
submitted that, while not abandoning grounds of appeal 1, 4 and 5 for which he stood by heads of
argument filed for the appellant, he would motivate the appeal on grounds of appeal 2 and 3. In
his view, those 2 grounds are dispositive of the appeal. In fact, ground 3 is in the alternative to
ground 2.
Mr Madhuku submitted that there are 3 factors which are relevant in considering an
application for dismissal of an application for want of prosecution in terms of the old rule 236 (3)
(a) the length of the delay and the explanation for it.
(c) the balance of convenience and the possible prejudice to the applicant caused by the
delay. He relied on the authority of Guardforce Investments (Pvt) Ltd v Ndlovu &
Ors SC 24/16.
It was submitted that when deciding the matter, the court a quo only considered the
reasonableness of the explanation for the delay. Upon concluding that it was insufficient, the court
a quo promptly granted the application without more. It did not consider the remaining 2 relevant
factors to be taken into account in exercising its discretion. For that reason, the judgment of the
Per contra, Ms Mahere for the respondents submitted that grounds of appeal 2 and
3 raise brand new points of law not placed before the court a quo, without justification. She
submitted that even the case law authority relied upon by the appellant was not placed before the
court a quo. Counsel suggested that the appellant cannot be allowed to do so as those points were
not pleaded.
Ms Mahere submitted further that even were one to consider the 2 factors to be
taken into account by the court before exercising its discretion to grant or dismiss an application
for dismissal for want of prosecution, the onus to set those out is on the appellant, who was the
respondent a quo. It is him, according to counsel, who should show the prospects of success of his
application and the absence of prejudice over and above providing a reasonable explanation for the
delay.
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Ms Mahere also made the point that the filing of an answering affidavit and heads
of argument in the main case by the appellant was of no moment. He was precluded from doing so
upon receiving the application for dismissal for want of prosecution. In making that submission,
counsel relied on the authority of the High Court judgment in Melgund Trading (Pvt) Ltd vs
“The respondent suggests that because it filed an answering affidavit and caused the
application for upliftment of bar before this application was dealt with, this application has
been overtaken by events. Rule 236 (3) does not state so. It is not a defence for a
respondent who has been served with an application for dismissal for want of prosecution
to plead that he subsequently made arrangements for the application to be set down. Once
a litigant has been served with an application for dismissal in terms of r 236 (3), he cannot
file any other process in pursuance of the proceedings under scrutiny. The application for
dismissal has to be dealt with first. Once an application for dismissal for want of
prosecution has been filed, it must be determined on the merits unless it is withdrawn or
the bar is uplifted by consent. If the courts were to allow a respondent who has failed to
comply with the requirements of r 236 (3) (b), to jump and set down the application
complained against to defeat the application for dismissal, this would be tantamount to the
courts allowing respondents to pull the carpet from under the feet of applicants. The action
that a respondent takes after an application for dismissal has been made is of no
consequence. The only option open to him, is to oppose the application for dismissal and
let it be dealt with on the merits.”
Unfortunately, the High Court did not cite any authority for the above proposition.
In fact, one of the authorities cited in that judgment is Ndlovu v Guardforce Investments (Pvt) Ltd
& Ors 2014 (1) ZLR 25 (H), a judgment which is of no consequence. More importantly, as shall
be seen shortly, the pronouncement by the High Court cited above, sought to overturn the judgment
of the Supreme Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors, supra SC 24/16.
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ANALYSIS
Rule 236 (3) of the High Court Rules (now r 59 (15) of the High Court Rules, 2021
does not set out the factors to be considered by a judge or the court on an application for dismissal
for want of prosecution. CHIDYAUSIKU CJ however set out those factors in the case of
Later in that page going on to p 7, the learned Chief Justice went on to state:
“There is no rule of law which barred the appellant from proceeding with its application
for rescission of the default judgment despite the making of the application for dismissal
for want of prosecution. In fact, under r 236 of the High Court Rules, when faced with an
application for dismissal of an application, the High Court is enjoined to consider options
other than dismissing the application for want of prosecution. The fact that the appellant
sat around and did not attend to the setting down of the application for rescission of the
default judgment is a factor that weighs against the appellant. If anything, the chamber
application ought to have triggered the appellant to attend to the finalization of the
application for rescission of the default judgment. 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 underlining is for emphasis)
In my view, this completely resolves the present appeal. The jurisprudence coming
out of this Court is completely at variance with that of the High Court. The judgment in
Guardforce Investments (Pvt) Ltd supra was delivered on 31 May 2016. The one in Melgund
Trading (Pvt) Ltd, supra was only delivered on 16 November 2016 at a time when this Court had
already set out the law. The High Court was bound, by virtue of the stare decisis principle to
follow the judgment of this Court in Guardforce Investments (Pvt) Ltd, supra. See Commercial
Farmers Union v Mhuriro & Ors 2000 (2) ZLR 405 (S) at 407G – 408A.
By the same token, the court a quo in the present case was bound to follow the
requirements set out in Guardforce, supra when it exercised its discretion to dismiss the appellant’s
application for want of prosecution. It did not. Instead the court a quo only considered the extent
of the delay and the reasonableness of the explanation for it. It ignored the prospects of success
on the merits and the balance of convenience or prejudice. By the authority of Guardforce, supra,
affidavit which unequivocally drew the court a quo’s attention to the factors that it was required
to take into account in exercising its discretion. He made it clear that the inquiry on the delay was
not the only factor. He also drew attention to the filing of the answering affidavit and heads of
argument as measures taken to prosecute the application. All that was overlooked by the court a
Apart from that, the appellant maintained his claim for ownership of the 20%
shareholding in the first respondent. There was evidence that a payment had been made for the
shares. Indeed, both the payment and the existence of the agreement were acknowledged by the
respondents. The interests of justice require that the propriety of the appellant’s claim be
interrogated fully and that a decision on the merits be made. This is not a case for closing the door
on the appellant merely on the basis of the inordinate delay in prosecuting the application.
In my view, the court a quo did not take into account relevant considerations in
exercising its discretion to allow the application. This gives this Court a foothold to interfere with
that discretion. See Barros & Anor vs Chimphonda 1999 (1) ZLR 58 (S). The appeal has merit
Regarding the issue of costs both a quo and before this Court, there is no
explanation why the authorities upon which the matter has now been resolved were not brought to
the attention of the court a quo. This is moreso regard being had that the principles set out in
Guardforce were captured in the opposing affidavit. To that extent, Mr Madhuku for the appellant
conceded that their case could have been presented more elegantly. In the exercise of the court’s
discretion on costs, the appellant will not be awarded the costs a quo.
The costs on appeal are well deserved and there is no reason why they should not
follow the result. I say so because the respondents persisted with their contestation of the appeal
without regard to the authorities set out in the appellant’s heads of argument filed as far back as
26 November 2021.
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2. The judgment of the court a quo is set aside and substituted with the following:
“The application is hereby dismissed with each party to bear its own costs.”
MAKONI JA : I agree
KUDYA JA : I agree