Kaitano v Kitano (HB 95 of 2007) [2007] ZWBHC 95 (12 September 2007)
The plaintiff and his legal practitioners failed to attend the pre-trial conference and did not file required papers, demonstrating lack of interest in prosecuting the case. The defendant's application for dismissal of the plaintiff's claim is justified.
Source-derived case information.
- Citation
- [2007] ZWBHC 95
- Parties
- Plaintiff: Tendayi Kaitano; Defendant: Agnes Kaitano
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HB 95 of 2007
- Procedural Posture
- Divorce / Pre Trial Conference; Application for Dismissal of Claim
- Outcome
- Plaintiff's claim dismissed; defendant granted leave to set down counterclaim unopposed; plaintiff to pay costs.
- Legal Topics
- Divorce, Default Judgment, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tendayi Kaitano
Plaintiff
Agnes Kaitano
Defendant
Procedural Posture
Divorce / Pre Trial Conference; Application for Dismissal of Claim
Legal Issues
- 1 Whether the plaintiff's claim should be dismissed for failure to attend pre-trial conference and non-compliance with court rules
- 2 Whether the defendant's counterclaim should proceed unopposed
Ratio Decidendi
The plaintiff and his legal practitioners failed to attend the pre-trial conference and did not file required papers, demonstrating lack of interest in prosecuting the case. The defendant's application for dismissal of the plaintiff's claim is justified.
Court Disposition
Plaintiff's claim dismissed; defendant granted leave to set down counterclaim unopposed; plaintiff to pay costs.
Orders
- The plaintiff’s claim is dismissed.
- The defendant is given leave to set down her counterclaim on the unopposed roll.
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. HB 95/07 Case No. HC 1237/05 X Ref HC 2754/06 TENDAYI KAITANO Versus AGNES KAITANO IN THE HIGH COURT OF ZIMBABWE BERE J BULAWAYO 4 & 13 SEPTEMBER 2007 B Moyo, for the plaintiff Tsvangirai, for the defendant BERE J: On 1 August 2007 the defendant’s legal practitioners duly served a notice of set down for a pretrial conference on the plaintiff’s legal practitioners. The pretrial conference date was given as 4 September 2007. Prior to setting down the matter for the pretrial conference, the defendant had on 14 June 2006 and through her legal practitioners filed synopsis of evidence and her pretrial conference issues. The plaintiff had filed none of these and was therefore in breach of the court rules which require that such papers be filed before the holding of a pretrial conference. On the date set for the pretrial conference, both the plaintiff and his legal practitioners were in default. The defendant and her legal practitioner duly appeared. Purporting to represent the plaintiff appeared Mr B Moyo who conceded that he had no proper instructions to represent the plaintiff. By his own admission, he merely appeared because his law firm had been acting as correspondent attorneys for plaintiff’s legal practitioners. It is abundantly clear that both the plaintiff and his legal practitioners were not only in default but had not filed any court papers in preparation for the pretrial conference. No formal application was made by the plaintiff or on behalf of plaintiff to put things right. The benevolence appearance by plaintiff’s correspondent legal practitioners did not help the plaintiff as the legal practitioner had no instructions to appear for the pretrial conference. A litigant who initiates litigation must have the zeal to see that process through. Accepted, this is a divorce matter and the courts must be cautious in providing a substantive remedy in the absence of the other litigant. However, this case clearly demonstrate lack of interest or lackadaisical attitude by both the plaintiff and his legal practitioners. The defendant made an application to have the plaintiff’s claim dismissed and have her counter claim set down on the unopposed motion. Judgment No. HB 95/07 Case No. HC 1237/05 X Ref HC 2754/06 In the light of what I have noted above, this application cannot be ignored. It is justified in the circumstances and it is ordered as follows: 1. 2. That the plaintiff’s claim be and is hereby dismissed. That the defendant be and is hereby given leave to set down her counter claim on the unopposed roll. 3. That the plaintiff pays costs of suit. Magodora & Partners, plaintiff’s legal practitioners Dazinger and Partners, Gweru, defendant’s legal practitioners