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Justice Mathonsi

Fidelis Munyoro Chief Court Reporter
A High Court judge has fired a salvo at lawyers who raise preliminary issues as a matter of “fashion” in urgent applications saying it was necessary to censure them for abusing the courts.

Justice Nicholas Mathonsi said higher courts were spending more time determining preliminary points, in urgent applications, which do not have the remotest chance of success at the expense of the substance of a dispute.

He made the observation in the recent dispute between Telecel Zimbabwe and the Postal and Telecommunications Regulatory Authority Zimbabwe (Potraz).

Potraz had in its notice of opposition raised preliminary points as a basis to dismiss Telecel’s urgent application.

In that case, Justice Mathonsi ruled that there was no merit in preliminary points raised by Potraz, in the hope the court might find in their favour.

“Invariably when one opens a notice of opposition, he is confronted by a point in limine challenging the urgency of the application, which should not be made at all,” said Justice Mathonsi.

“Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion.”

Justice Mathonsi said a preliminary point should only be taken where “firstly it is meritable and secondly it is likely to dispose of the matter”.

He said it was high time lawyers were discouraged from such waste of court time by making endless preliminary points by litigants afraid of the merits of the matter or, lawyers who have no confidence in their clients’ defences against the substance of the dispute, in the hope that by chance the court might find in their favour.

The judge said if an opposition had no merit, it should not be made at all.

“As points in limine are usually raised on points of law and procedure, they are the product of the ingenuity of legal practitioners,” he said.

“In future, it may be necessary to rein in the legal practitioners who abuse the court in that way, by ordering them to pay costs de bonis propiis (lawyer must pay for it).”

Justice Mathonsi said a matter was urgent if a compelling need to act arises. This, he said, was the simple test for urgency.