SUPIYA v MUTARE DISTRICT COUNCIL & ORS 1985 (2) ZLR 53 (H)

Flynote

Civil procedure — High Court Rules 162, 164 and 165 — statements from the Bar constitute evidence — contumacy on the part of legal practitioners as a ground for dismissing an action — importance of discovery affidavits.

Headnote

In terms of an order of MFALILA J, all respondents were required to make discovery within a given period of time. Second respondent filed a discovery affidavit out of time given under the order and stated that he represented the first and third respondents. Applicant objected to the affidavit as being invalid in so far as the first and third respondents were concerned and in any event as being inadequate.

Further applications by the applicant to secure proper compliance and proper filing of discovery affidavits elicited no formal response from the respondents' legal practitioners.

Held, contumacy is a good reason for ordering the dismissal of an action or striking out of a defence.

Held, further, a statement from the Bar can be accepted as sufficient evidence to show prejudice when looked at in the light of other known facts.

Held, further, the courts have repeatedly stressed the importance of discovery affidavits. When a court order is obtained requiring discovery and there is a failure to comply with such order, such failure is deliberate contumacy. It is not sufficient for the legal practitioner to make the excuse that because the respondents could not have made a meaningful discovery they did not bother to do so.

Held, further, on the facts as a whole it would not be sufficient to indicate the

court's disapproval of respondents' action to put them on terms and this was an appropriate case to strike out the defence of the respondents.