BEZBETS BETTING COMPANY v DEMBEDZA (338 of 2025) [2025] ZWHHC 338 (9 June 2025)

4 HH 338-25 Case No HCH 4440/24 Ref Case No HCH 2819/24 BEZBETS BETTING COMPANY versus PROSPER DEMBEDZA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 2 April & 9 June 2025 Opposed Application- Chamber application for Condonation D Chiromo, for the applicant P Pathisani, for the respondent MUSITHU J: This is a composite application for condonation for non-compliance with the rules of the court, extension of time within which to note an appeal and the reinstatement of an appeal. The application was made in terms of rule 60(1) of the High Court rules, 2021. The applicant seeks the following relief. “IT IS ORDERED THAT The failure to comply with rule 95 (17) of the High Court rules, 2021 be and is hereby condoned. The application for extension of time within which to appeal be and is hereby granted. The application for reinstatement of appeal be and is hereby granted.The appeal noted by the applicant in Case No. HCH 2819/24 be and is hereby reinstated.The applicant is to file Appellant’s heads of argument in case HCH 2819/24 within 48 hours of this order.There shall be no order as to costs.” The applicant’s founding affidavit was deposed to by one Benard Zieve in his capacity as the licensee for his betting business which trades under the name and style Bezbets. The deponent claimed that in terms of the license, he was solely responsible for any dispute that arose from the betting public, and further to be sued and to sue in his name. He also claimed that the name Bezbets Betting Company was non-existent and one could not sue or be sued in that name. The deponent averred that he had a bona fide case against the respondent and associated himself with the averments made by his legal practitioner Brighton Pabwe, in his supporting affidavit. Brighton Pabwe, the applicant’s legal practitioner deposed to a supporting affidavit, in which he averred that the name Bezbets Betting Company was a creation of the respondent as the applicant’s known name was Bezbets. The deponent claimed that he noted an appeal on behalf of the applicant on 28 June 2024 under HC 2819/24. On 31 July 2024 he received a letter from the Registrar inviting him to file heads of argument within 15 working days from the date of the letter. Upon receiving the letter, he noted that the court had closed for the August 2024 vacation on 26 July 2024 and would reopen on 9 September 2024. Armed with that information, his understanding of the rules was that the dies induciae for the filing of heads of argument would not run during the vacation period and he informed his client that he would file the heads during the first week of opening of the court. On 28 August 2024 he received a letter from the Registrar advising that the appeal was deemed abandoned and therefore dismissed in terms of r 95(20) of the High Court rules, 2021. This was on account of the failure to file heads of argument. It was at that point that the deponent realised that the filing of heads of argument in an appeal was not interrupted by vacation periods of the High Court. He informed his client of the development, and he was instructed to make the present application. Mr Pabwe averred that his failure to file heads was not out of negligence or recklessness, but it was driven by a bona fide belief in an erroneous appreciation of the rules of the court. He further averred that the delay in filing the heads of argument was not in ordinate as it was only three days. He also averred that the applicant had high prospects of success in the appeal therefore the application was not frivolous. The deponent entreated the court to condone his failure to comply with the rules and to grant the relief sought by the applicant. No prejudice would be suffered by the respondent if the applicant was condoned and the appeal was reinstated. Further according to Mr Pabwe, he had timeously complied with the requirements for noting an appeal and the filing of the heads was the only outstanding step before the matter could be set down for hearing. He averred that the applicant had been found in the present predicament due to his error and as such should not be punished for his mistake. The delay in filing the present application was occasioned by the need to withdraw the initial application under HC 3896/24 following valid preliminary points raised by the respondent. Respondent’s case The respondent’s opposing affidavit raised two preliminary points, which were that the applicant failed to address the prospects of success in the founding affidavit and that the court could not reinstate a nullity. The respondent averred that the applicant had failed to address the prospects of success on appeal and that the failure to do so was fatal to the application. He urged the court to strike out the application on that basis. The respondent also averred that there was no proper appeal in the first place and the court could not reinstate a nullity. The applicant had noted an appeal in the general division of the High Court for a matter that was heard by the Commercial Division of the Magistrates Court. The respondent averred that there was a specialized appeals court in the form of the Commercial Division of the High Court, and the appeal ought to have been lodged with that court. The respondent also averred that in the previous application that was unceremoniously withdrawn by the applicant, he had raised the same issue and instead of accepting the advice, the applicant proceeded to file the present application in the general division of the High Court instead of the Commercial Division. The respondent urged the court to dismiss the application instead of striking it off because nothing would be achieved by the mere striking off of the matter from the roll in the circumstances where there was no possibility of the appeal being reinstated in the general division of the High Court. It was the respondent’s contention that the current application was not sincere and had been lodged for a singular reason of litigating him out of pocket as well as delaying the resolution of the dispute. The court was urged not to reward such behavior, but rather express its displeasure through an appropriate order of costs on a higher scale. The respondent averred that in the application for rescission of the default judgment in the court a quo, the applicant had cited itself using the same name as the one used in the present proceedings. The deponent to the applicant’s founding affidavit had introduced himself as the applicant’s Managing Director. He had not questioned the citation of the applicant when he sought a stay of execution of a default judgment granted in favour of the respondent in the court a quo under HREC-CD716/24. The respondent also averred that in an application for rescission of the default judgment filed by the applicant, the deponent claimed in a sworn statement that Bezbets Betting Company was a trade name therefore he could not now seek to resile from its trade name. The respondent further averred that the purported application for condonation and reinstatement of an appeal did not meet the requirements for such an application in that the applicant failed to explain the extent of delay; the prospects of success; the importance of the case; the balance of convenience and the need to achieve finality in litigation. The applicant ought to have addressed the above requirements on its own and not leave it to its legal practitioners or use them as scapegoats for their dilatoriness. The respondent averred that the supporting affidavit by the applicant’s legal practitioner proffered a flimsy explanation for the delay and did not relate to prospects of success in the intended appeal. The respondent contended that the applicant did not have a bona fide defence on the merits and had failed to relate to the same in his papers. The applicant had not made a case at all in his founding papers. The respondent also insisted that the purported appeal was a nullity and the grounds of appeal were meritless. The respondent averred that the applicant’s legal practitioner deliberately abstained from duty. A serious legal practitioner would have filed heads of argument instead of relying on their flawed interpretation of the rules. The respondent averred that the applicant’s legal practitioner had admitted to only reading the rules following the dismissal of the appeal by operation of law. He urged the court not to condone such an omission that was necessitated by gross negligence and deliberate flouting of the rules. He averred that the appeal was frivolous and vexatious and filed for the purpose of delay while the applicant was busy prosecuting interpleader proceedings in the lower court and not giving precedence to the High Court matter. The court was urged to dismiss the application with costs on a higher scale. Submissions At the hearing, Mr Pathisani for the respondent raised four preliminary points. These were that: firstly, the application was a nullity since the applicant gave the respondent the wrong dies induciae; secondly there was no applicant before the court since the deponent to the applicant’s founding affidavit asserted that the applicant as cited was nonexistent; thirdly, the application was a nullity to the extent that it did not cite the provision of the law under which it was made; and fourthly, the applicant failed to address the prospects of success on appeal. I shall proceed to deal with the preliminary points hereunder. Whether the application was nullity for giving the wrong dies induciae The first point was that the application was a nullity because the applicant had given a wrong dies induciae in the notice of application. Mr Pathisani submitted that the notice of application gave the respondent 5 days within which to respond to the application. The dies induciae of 5 days was wrong and offended r 60 (1) of the High Court Rules, 2021. That provision required a chamber application to be made in terms of form 23 which gave a respondent 10 days to respond to an application. Mr Pathisani cited the case of Nyathi v The Trustees for the Time Being of Apostolic Faith Mission of Africa SC 63/22, in advancing the point that a failure by an applicant to give the correct dies induciae rendered the application a nullity. The court was urged to strike the matter off the roll with costs. In response, Mr Chiromo for the respondent submitted that the preliminary point was taken out of fashion because the respondent had not suffered any prejudice at all. He further submitted that the application was served on the respondent who was before the court. The point in limine was in any event raised for the first time at the hearing. The court was urged to dismiss it with costs. Mr Pathisani did not highlight in what way the dies induciae given by the applicant was wrong and how it prejudiced the respondent. In the Nyathi judgment that counsel referred to the applicant had, in its notice of application, accorded the respondents 5 days within which to file their opposing papers instead of the three days that are prescribed in r 43(5) of the Supreme Court Rules, 2018. The respondents filed their opposing papers outside the peremptory period of three days, prescribed in terms of r 43(5). The court determined that the respondents were misled into default by the defective dies induciae to their prejudice. The court then concluded that the applicant’s failure to accord the proper notice period to the respondents was a fatal defect which rendered the application a nullity. In the Nyathi case, it was clear that the notice of application misrepresented the period within which the respondents were required to file their opposition to their prejudice. The opposition was filed out of time as a result of the misrepresentation. The same cannot be said of the present application. The respondent’s counsel did not elaborate on how the respondent was allegedly misled by the dies induciae given by the applicant, and what prejudice he suffered as a result of the misrepresentation. The court determines that there is no merit in the objection and it is hereby dismissed. Whether the application is defective for its failure to address prospects of success Mr Pathisani for the respondent submitted that the application was fatally defective because of the applicant’s failure to address prospects of success in its founding affidavit. It was averred that this anomaly could not be cured by reference to prospects of success in the heads of argument. An application had to stand or fall on the founding affidavit. In response, Mr Chiromo submitted that the preliminary point was devoid of merit as prospects of success were addressed in the heads of argument and the supporting affidavit of the legal practitioner. There was therefore no need to regurgitate them again in the applicant’s founding affidavit. To succeed in an application of this nature, the applicant is required to establish the following requirements: The extent of the delay;The reasonableness of the explanation for the delay; and The prospects of success on appeal. See Kombayi v Berkout 1988 (1) ZLR 53 (SC) and Easter Mzite (In her capacity as the Executrix Dative of the Estate Late Chemayi Joseph Mzite) v Damafalls Investments (Private) Limited & Anor SC 21/18 at pages 2-3. From the above authorities, it is clear that in order to succeed, an applicant in an application for condonation must deal with the above requirements in his or her founding affidavit. It must be recalled that in motion proceedings, affidavits serve a dual purpose. They constitute the pleadings through which the parties plead their cause of action and defence to the claim. They also serve as the means through which evidence is placed before the court. See Minerals Identity (Private) Limited v The Commissioner General of Police N.O. & 7 Ors HH 626/20 at p 7. It is in this context that the old adage that an application stands or falls on the founding affidavit must be understood. Heads of argument on the other hand provide a roadmap for oral arguments in which the main points that will be argued in court are highlighted. They provide a summary of the applicable legal principles and counsel’s opinion of the facts. For that reason, heads argument do not take the place of pleadings. The deponent to the applicant’s founding affidavit alluded to the prospects of success in para 9 of the affidavit as follows: “9. I submit that I have a bona fide case on the merits for the following reasons: 10. On the strength of the supporting affidavit, I accordingly humbly move this honourable court for an order in terms of the draft order.” The reasons that the deponent referred to in para 9 were not spelt out in the affidavit. Paragraph 10 referred to the supporting affidavit of Brighton Pabwe, the applicant’s legal practitioner. In para 15 of the supporting affidavit, the deponent states: “I also submit that as appears from the Notice of Appeal, the appeal is not frivolous and has high prospects of success as supported in Annexure E above.” The annexure E that he was referring to are the draft heads of argument that he intended to file if condonation was granted. It is clear from the above that both the founding affidavit and the supporting affidavit did not address the question of prospects of success save to mention it in passing. In para 10 of its heads of argument, the applicant argued that it had exhaustively addressed the prospects of success by referencing the heads of argument as an Annexure. It went on to submit that “Regurgitating the heads in the affidavit would have been repetition and unnecessary”. The applicant’s argument that the question of prospects of success was sufficiently dealt with by reference to heads of argument is with respect erroneous. As already noted, in motion proceedings, an applicant is required to plead his or her case in the founding affidavit, because an affidavit assumes the status of pleadings. It was in the founding affidavit that the applicant was expected to demonstrate its prospects of success in greater detail and with sufficient clarity. It could not assert to do so through heads of argument which by their nature are not pleadings. In Doves Funeral Assurance (Private) Limited v Harare Motorway (Private) Limited & 4 Ors SC 64/23, the court summarized the position of the law as follows: “[30] The applicant ought to have set out that it has good prospects of success, in relation to both condonation and the reinstatement of appeal in its founding affidavit. It is a common principle that an application stands or falls on the averments made in the founding affidavit.” See also Unki Mines (Pvt) Ltd v Dohne Construction (Pvt) Ltd SC 18/23 The principle that permeates across the above authorities is that prospects of success must be properly pleaded and demonstrated in the founding affidavit. Failure to do so renders the application defective. For that reason, this court is satisfied that there is merit in the respondent’s preliminary point that the application is not properly before the court. Costs The court was urged to dismiss the application with costs on the attorney and client scale. The court finds no exceptional circumstances that warrant an order of costs on that scale Resultantly it is ordered that: The application is hereby struck of the roll for being fatally defective.The applicant shall bear the respondent’s costs of suit. Musithu J:……………………………………………………………………………… Venturas and Smakange, the applicant’s legal practitioners Patisani and Associates, the respondent’s legal practitioners 4 HH 338-25 Case No HCH 4440/24 Ref Case No HCH 2819/24 4 HH 338-25 Case No HCH 4440/24 Ref Case No HCH 2819/24 BEZBETS BETTING COMPANY versus PROSPER DEMBEDZA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 2 April & 9 June 2025 Opposed Application- Chamber application for Condonation D Chiromo, for the applicant P Pathisani, for the respondent MUSITHU J: This is a composite application for condonation for non-compliance with the rules of the court, extension of time within which to note an appeal and the reinstatement of an appeal. The application was made in terms of rule 60(1) of the High Court rules, 2021. The applicant seeks the following relief. “IT IS ORDERED THAT The failure to comply with rule 95 (17) of the High Court rules, 2021 be and is hereby condoned. The application for extension of time within which to appeal be and is hereby granted. The application for reinstatement of appeal be and is hereby granted. The appeal noted by the applicant in Case No. HCH 2819/24 be and is hereby reinstated. The applicant is to file Appellant’s heads of argument in case HCH 2819/24 within 48 hours of this order. There shall be no order as to costs.” The applicant’s founding affidavit was deposed to by one Benard Zieve in his capacity as the licensee for his betting business which trades under the name and style Bezbets. The deponent claimed that in terms of the license, he was solely responsible for any dispute that arose from the betting public, and further to be sued and to sue in his name. He also claimed that the name Bezbets Betting Company was non-existent and one could not sue or be sued in that name. The deponent averred that he had a bona fide case against the respondent and associated himself with the averments made by his legal practitioner Brighton Pabwe, in his supporting affidavit. Brighton Pabwe, the applicant’s legal practitioner deposed to a supporting affidavit, in which he averred that the name Bezbets Betting Company was a creation of the respondent as the applicant’s known name was Bezbets. The deponent claimed that he noted an appeal on behalf of the applicant on 28 June 2024 under HC 2819/24. On 31 July 2024 he received a letter from the Registrar inviting him to file heads of argument within 15 working days from the date of the letter. Upon receiving the letter, he noted that the court had closed for the August 2024 vacation on 26 July 2024 and would reopen on 9 September 2024. Armed with that information, his understanding of the rules was that the dies induciae for the filing of heads of argument would not run during the vacation period and he informed his client that he would file the heads during the first week of opening of the court. On 28 August 2024 he received a letter from the Registrar advising that the appeal was deemed abandoned and therefore dismissed in terms of r 95(20) of the High Court rules, 2021. This was on account of the failure to file heads of argument. It was at that point that the deponent realised that the filing of heads of argument in an appeal was not interrupted by vacation periods of the High Court. He informed his client of the development, and he was instructed to make the present application. Mr Pabwe averred that his failure to file heads was not out of negligence or recklessness, but it was driven by a bona fide belief in an erroneous appreciation of the rules of the court. He further averred that the delay in filing the heads of argument was not in ordinate as it was only three days. He also averred that the applicant had high prospects of success in the appeal therefore the application was not frivolous. The deponent entreated the court to condone his failure to comply with the rules and to grant the relief sought by the applicant. No prejudice would be suffered by the respondent if the applicant was condoned and the appeal was reinstated. Further according to Mr Pabwe, he had timeously complied with the requirements for noting an appeal and the filing of the heads was the only outstanding step before the matter could be set down for hearing. He averred that the applicant had been found in the present predicament due to his error and as such should not be punished for his mistake. The delay in filing the present application was occasioned by the need to withdraw the initial application under HC 3896/24 following valid preliminary points raised by the respondent. Respondent’s case The respondent’s opposing affidavit raised two preliminary points, which were that the applicant failed to address the prospects of success in the founding affidavit and that the court could not reinstate a nullity. The respondent averred that the applicant had failed to address the prospects of success on appeal and that the failure to do so was fatal to the application. He urged the court to strike out the application on that basis. The respondent also averred that there was no proper appeal in the first place and the court could not reinstate a nullity. The applicant had noted an appeal in the general division of the High Court for a matter that was heard by the Commercial Division of the Magistrates Court. The respondent averred that there was a specialized appeals court in the form of the Commercial Division of the High Court, and the appeal ought to have been lodged with that court. The respondent also averred that in the previous application that was unceremoniously withdrawn by the applicant, he had raised the same issue and instead of accepting the advice, the applicant proceeded to file the present application in the general division of the High Court instead of the Commercial Division. The respondent urged the court to dismiss the application instead of striking it off because nothing would be achieved by the mere striking off of the matter from the roll in the circumstances where there was no possibility of the appeal being reinstated in the general division of the High Court. It was the respondent’s contention that the current application was not sincere and had been lodged for a singular reason of litigating him out of pocket as well as delaying the resolution of the dispute. The court was urged not to reward such behavior, but rather express its displeasure through an appropriate order of costs on a higher scale. The respondent averred that in the application for rescission of the default judgment in the court a quo, the applicant had cited itself using the same name as the one used in the present proceedings. The deponent to the applicant’s founding affidavit had introduced himself as the applicant’s Managing Director. He had not questioned the citation of the applicant when he sought a stay of execution of a default judgment granted in favour of the respondent in the court a quo under HREC-CD716/24. The respondent also averred that in an application for rescission of the default judgment filed by the applicant, the deponent claimed in a sworn statement that Bezbets Betting Company was a trade name therefore he could not now seek to resile from its trade name. The respondent further averred that the purported application for condonation and reinstatement of an appeal did not meet the requirements for such an application in that the applicant failed to explain the extent of delay; the prospects of success; the importance of the case; the balance of convenience and the need to achieve finality in litigation. The applicant ought to have addressed the above requirements on its own and not leave it to its legal practitioners or use them as scapegoats for their dilatoriness. The respondent averred that the supporting affidavit by the applicant’s legal practitioner proffered a flimsy explanation for the delay and did not relate to prospects of success in the intended appeal. The respondent contended that the applicant did not have a bona fide defence on the merits and had failed to relate to the same in his papers. The applicant had not made a case at all in his founding papers. The respondent also insisted that the purported appeal was a nullity and the grounds of appeal were meritless. The respondent averred that the applicant’s legal practitioner deliberately abstained from duty. A serious legal practitioner would have filed heads of argument instead of relying on their flawed interpretation of the rules. The respondent averred that the applicant’s legal practitioner had admitted to only reading the rules following the dismissal of the appeal by operation of law. He urged the court not to condone such an omission that was necessitated by gross negligence and deliberate flouting of the rules. He averred that the appeal was frivolous and vexatious and filed for the purpose of delay while the applicant was busy prosecuting interpleader proceedings in the lower court and not giving precedence to the High Court matter. The court was urged to dismiss the application with costs on a higher scale. Submissions At the hearing, Mr Pathisani for the respondent raised four preliminary points. These were that: firstly, the application was a nullity since the applicant gave the respondent the wrong dies induciae; secondly there was no applicant before the court since the deponent to the applicant’s founding affidavit asserted that the applicant as cited was nonexistent; thirdly, the application was a nullity to the extent that it did not cite the provision of the law under which it was made; and fourthly, the applicant failed to address the prospects of success on appeal. I shall proceed to deal with the preliminary points hereunder. Whether the application was nullity for giving the wrong dies induciae The first point was that the application was a nullity because the applicant had given a wrong dies induciae in the notice of application. Mr Pathisani submitted that the notice of application gave the respondent 5 days within which to respond to the application. The dies induciae of 5 days was wrong and offended r 60 (1) of the High Court Rules, 2021. That provision required a chamber application to be made in terms of form 23 which gave a respondent 10 days to respond to an application. Mr Pathisani cited the case of Nyathi v The Trustees for the Time Being of Apostolic Faith Mission of Africa SC 63/22, in advancing the point that a failure by an applicant to give the correct dies induciae rendered the application a nullity. The court was urged to strike the matter off the roll with costs. In response, Mr Chiromo for the respondent submitted that the preliminary point was taken out of fashion because the respondent had not suffered any prejudice at all. He further submitted that the application was served on the respondent who was before the court. The point in limine was in any event raised for the first time at the hearing. The court was urged to dismiss it with costs. Mr Pathisani did not highlight in what way the dies induciae given by the applicant was wrong and how it prejudiced the respondent. In the Nyathi judgment that counsel referred to the applicant had, in its notice of application, accorded the respondents 5 days within which to file their opposing papers instead of the three days that are prescribed in r 43(5) of the Supreme Court Rules, 2018. The respondents filed their opposing papers outside the peremptory period of three days, prescribed in terms of r 43(5). The court determined that the respondents were misled into default by the defective dies induciae to their prejudice. The court then concluded that the applicant’s failure to accord the proper notice period to the respondents was a fatal defect which rendered the application a nullity. In the Nyathi case, it was clear that the notice of application misrepresented the period within which the respondents were required to file their opposition to their prejudice. The opposition was filed out of time as a result of the misrepresentation. The same cannot be said of the present application. The respondent’s counsel did not elaborate on how the respondent was allegedly misled by the dies induciae given by the applicant, and what prejudice he suffered as a result of the misrepresentation. The court determines that there is no merit in the objection and it is hereby dismissed. Whether the application is defective for its failure to address prospects of success Mr Pathisani for the respondent submitted that the application was fatally defective because of the applicant’s failure to address prospects of success in its founding affidavit. It was averred that this anomaly could not be cured by reference to prospects of success in the heads of argument. An application had to stand or fall on the founding affidavit. In response, Mr Chiromo submitted that the preliminary point was devoid of merit as prospects of success were addressed in the heads of argument and the supporting affidavit of the legal practitioner. There was therefore no need to regurgitate them again in the applicant’s founding affidavit. To succeed in an application of this nature, the applicant is required to establish the following requirements: The extent of the delay; The reasonableness of the explanation for the delay; and The prospects of success on appeal. See Kombayi v Berkout 1988 (1) ZLR 53 (SC) and Easter Mzite (In her capacity as the Executrix Dative of the Estate Late Chemayi Joseph Mzite) v Damafalls Investments (Private) Limited & Anor SC 21/18 at pages 2-3. From the above authorities, it is clear that in order to succeed, an applicant in an application for condonation must deal with the above requirements in his or her founding affidavit. It must be recalled that in motion proceedings, affidavits serve a dual purpose. They constitute the pleadings through which the parties plead their cause of action and defence to the claim. They also serve as the means through which evidence is placed before the court. See Minerals Identity (Private) Limited v The Commissioner General of Police N.O. & 7 Ors HH 626/20 at p 7. It is in this context that the old adage that an application stands or falls on the founding affidavit must be understood. Heads of argument on the other hand provide a roadmap for oral arguments in which the main points that will be argued in court are highlighted. They provide a summary of the applicable legal principles and counsel’s opinion of the facts. For that reason, heads argument do not take the place of pleadings. The deponent to the applicant’s founding affidavit alluded to the prospects of success in para 9 of the affidavit as follows: “9. I submit that I have a bona fide case on the merits for the following reasons: 10. On the strength of the supporting affidavit, I accordingly humbly move this honourable court for an order in terms of the draft order.” The reasons that the deponent referred to in para 9 were not spelt out in the affidavit. Paragraph 10 referred to the supporting affidavit of Brighton Pabwe, the applicant’s legal practitioner. In para 15 of the supporting affidavit, the deponent states: “I also submit that as appears from the Notice of Appeal, the appeal is not frivolous and has high prospects of success as supported in Annexure E above.” The annexure E that he was referring to are the draft heads of argument that he intended to file if condonation was granted. It is clear from the above that both the founding affidavit and the supporting affidavit did not address the question of prospects of success save to mention it in passing. In para 10 of its heads of argument, the applicant argued that it had exhaustively addressed the prospects of success by referencing the heads of argument as an Annexure. It went on to submit that “Regurgitating the heads in the affidavit would have been repetition and unnecessary”. The applicant’s argument that the question of prospects of success was sufficiently dealt with by reference to heads of argument is with respect erroneous. As already noted, in motion proceedings, an applicant is required to plead his or her case in the founding affidavit, because an affidavit assumes the status of pleadings. It was in the founding affidavit that the applicant was expected to demonstrate its prospects of success in greater detail and with sufficient clarity. It could not assert to do so through heads of argument which by their nature are not pleadings. In Doves Funeral Assurance (Private) Limited v Harare Motorway (Private) Limited & 4 Ors SC 64/23, the court summarized the position of the law as follows: “[30] The applicant ought to have set out that it has good prospects of success, in relation to both condonation and the reinstatement of appeal in its founding affidavit. It is a common principle that an application stands or falls on the averments made in the founding affidavit.” See also Unki Mines (Pvt) Ltd v Dohne Construction (Pvt) Ltd SC 18/23 The principle that permeates across the above authorities is that prospects of success must be properly pleaded and demonstrated in the founding affidavit. Failure to do so renders the application defective. For that reason, this court is satisfied that there is merit in the respondent’s preliminary point that the application is not properly before the court. Costs The court was urged to dismiss the application with costs on the attorney and client scale. The court finds no exceptional circumstances that warrant an order of costs on that scale Resultantly it is ordered that: The application is hereby struck of the roll for being fatally defective. The applicant shall bear the respondent’s costs of suit. Musithu J:……………………………………………………………………………… Venturas and Smakange, the applicant’s legal practitioners Patisani and Associates, the respondent’s legal practitioners