The late Sicolani Moyo purchased a property (Stand 48498 Mpopoma, Bulawayo) which was registered under Jabulani Mbulawa Masuku and later transferred to the respondent (Jonathan Maphenduka), who was Sicolani's brother. The respondent surrendered the property back to Sicolani after purchasing his own house. The property was subsequently transferred to the applicant (Alpha Moyo Maphenduka), Sicolani's nephew. The respondent and applicant held the property as nominees, though applicant later disputed this. Sicolani continued to collect rent from the property, treating it as her own. After Sicolani's death, the applicant claimed the property was donated to him by his aunt. In case HC 663/05, the respondent obtained an order on 29 February 2005 (corrected to 29 December 2005 in judgment) declaring the property part of Sicolani's estate and compelling the applicant to transfer it within 7 days. The applicant did not comply. Seven years later, the applicant sought condonation for failure to timeously apply for rescission of that judgment, blaming his erstwhile legal practitioners for failing to act and claiming lack of funds for seven years.
The application for condonation for failure to timeously apply for rescission was dismissed with costs.
Where a party seeking condonation for failure to comply with court rules blames their legal practitioner for gross dereliction of duty, that party must provide an affidavit from the legal practitioner confirming or acknowledging the alleged misconduct. Failure to provide such corroborating evidence, particularly after attention has been drawn to the need to do so, leads the court to draw the inference that the applicant is not being truthful. A party seeking to set aside a judgment must provide a reasonable explanation for default (good and sufficient cause) and bears a heavy onus in justifying rescission. Unexplained lengthy delays (such as seven years) combined with weak defences on the merits and failure to corroborate allegations against legal practitioners will result in the conclusion that non-compliance was wilful rather than excusable.
The court expressed sympathy for litigants who are desirous to have their rights determined but noted there are guidelines courts must follow, including examining reasons for non-compliance, the length of delay, and the defendant's defence. The court observed that both the applicant's conduct and that of his legal practitioner were 'suspicious and far from convincing,' noting that the applicant was employed and had always had legal representation, yet the practitioner allegedly abandoned him midstream for unknown reasons. The court applied the common law principle that 'he who asserts must prove.'
This judgment reinforces important principles in Zimbabwean civil procedure regarding applications for condonation and rescission of judgments. It establishes that parties seeking to blame their legal practitioners for non-compliance have an evidentiary burden to corroborate such allegations with affidavits from those practitioners. The case emphasizes that courts will not accept unsubstantiated allegations against legal practitioners and will draw adverse inferences from failure to provide corroborating evidence. It also confirms that lengthy delays (seven years in this case) require compelling explanations, and that courts will consider the totality of circumstances, including the strength of the defence on the merits, when determining whether to grant condonation.