Online Reporter
Fidelis Munyoro
Chief Court Writer
BUSINESS tycoon Nicholas van Hoogstraten has lost an attempt to revive a 2009 lawsuit over ownership of a residential property on Wroxham Road in The Grange, Harare, after the High Court ruled that the case was irredeemably out of time.
Justice Joel Mambara dismissed the application, underlining the need for finality in litigation and the consequences of prolonged inaction.
Van Hoogstraten had sought to reinstate a summons and declaration for transfer of the property, which had lapsed under Practice Direction 1 of 2022.
He also applied for condonation of his failure to act within the prescribed two-year period, as well as an extension under Rule 7 of the High Court Rules, 2021.
The property was originally sold in 2005 at an execution sale to settle a judgment debt.
Although van Hoogstraten was confirmed as the buyer, the judgment debtor, Felistas Runyararo James, later paid off the debt.
A Sheriff’s official then returned van Hoogstraten’s payment cheque, which he argued was part of a “scheme” to undermine the sale.
In 2013, James went on to sell and transferred the property to the Richard Samaita Family Trust, even though ownership rights had already been vested elsewhere.
James opposed the latest application, insisting the summons had irreversibly lapsed, the 16-year delay was excessive, the claim had prescribed, and the matter was moot since she no longer owned the property.
Van Hoogstraten argued that administrative hurdles, including difficulties retrieving archived court records, contributed to the delay.
However, Justice Mambara ruled that the Practice Direction was explicit: once a summons lapses, it cannot be revived unless an extension is sought within the prescribed timeframe.
“The delay of 16 years is so extraordinary that it defies justification,” Justice Mambara said.
Even if condonation were granted, the court held that the application was futile since James no longer owned or occupied the stand.
“The applicant cannot compel the first respondent to transfer what she no longer owns. Courts do not issue orders that are empty of practical force. The horse has bolted, and the ship has sailed,” Justice Mambara ruled.
The court also noted that van Hoogstraten never effectively paid for the property, as his cheque had been returned and was not cashed.
Ordering transfer, therefore, would amount to compelling performance without consideration.
The judge referenced a 2010 ruling by Justice Makoni in the same dispute, which had similarly declined to grant relief.
Concluding that the application was an abuse of court process, Justice Mambara said: “The law prizes finality in litigation and the stability of completed transactions. The applicant’s own prolonged inaction has contributed to the futility of his claim. The interests of justice demand that this matter be laid to rest.”
The application was dismissed with costs awarded against van Hoogstraten on a legal practitioner-client scale.
Online Reporter