Asikodi Madake v African Banking Corporation Zimbabwe Limited and Florence Rwidzai Madake and Drill Rig Engineering (Private) Limited

The applicant sought condonation for late filing of an application for rescission of a default judgment granted on 13 March 2024 under HCHC110/25. The applicant claimed he only became aware of the default judgment in June 2025 through a newspaper article as he was outside Zimbabwe when process was served. The case concerned the applicant's matrimonial property (16 Giraffe Close, Borrowdale West, Harare) which he jointly owned with his estranged wife, the second respondent. In 2023, the applicant consented to his wife passing a mortgage bond to borrow US$50,000 from the first respondent, signing the consent before Mr. Ostern Mutero at Sawyer and Mkushi Legal Practitioners. The applicant denied consenting to bind himself as surety and co-principal debtor for the third respondent (Drill Rig Engineering), whom he claimed not to know, or encumbering his half share of the property for a third party's debt. He only launched the condonation application in October 2025, claiming he discovered on 10 October 2025 that the signature on the deed of suretyship was not his. He also alleged his son, who supposedly witnessed the deed, disputed witnessing it. The applicant claimed he executed a power of attorney on 23 September 2025 and his lawyers wrote to the first respondent on 25 September 2025 seeking clarification on the sale proceeds. The first respondent contended the applicant knew of the judgment earlier, that there was a common mistake where the deeds of suretyship were erroneously exchanged during execution, but both parties signed confirming their intention, and that the applicant ratified the agreement when he executed a power of attorney to register the Surety Mortgage Bond on 17 March 2023 for US$200,000.

• Whether the applicant provided a reasonable and adequate explanation for the delay in seeking condonation
• Whether the applicant took the court into confidence with an honest account of his default
• Whether the applicant demonstrated prospects of success in the intended rescission application
• Whether fraud in the execution of the deed of suretyship was adequately established
• Whether the doctrine of common mistake applied to the execution of the deed of suretyship
• Whether the applicant's conduct amounted to approbation and reprobation

The application for condonation was dismissed with costs on a legal practitioner and client scale.

1. An applicant seeking condonation for late filing must provide a full, honest, reasonable and adequate explanation for non-compliance, supported by documentary evidence, and must take the court into confidence. Bare allegations without supporting evidence are insufficient. 2. A party cannot approbate and reprobate - executing a special power of attorney to give effect to a default judgment while simultaneously seeking to rescind it constitutes acquiescence to the judgment. 3. Fraud allegations must be substantiated with concrete evidence such as expert reports, police reports or court decisions - hollow allegations are insufficient to establish fraud. 4. Common mistake in contract law does not invalidate a contract where parties were in agreement despite an incorrect assumption, particularly where subsequent ratification occurred through conduct (such as executing a power of attorney). 5. Courts will award costs on a higher scale where a party's conduct is dishonest, reprehensible and intended to derail judicial processes. 6. Condonation requires cumulative consideration of: extent of delay, reasonableness of explanation, prospects of success, prejudice to other parties, need for finality in litigation, and interests of justice.

The court noted that the applicant's intended application for rescission was based on the wrong rule (r63 of the High Court Rules, 2021 which relates to interpleader proceedings), when he should have relied on r15 of the High Court (Commercial Division) Rules 2020 in accordance with r4 of those Rules. The court also remarked that it was peculiar that the applicant, despite alleging Mr. Musoni acted without instructions, intended to stand on Mr. Musoni's appearance to defend by filing a plea if condonation was granted - conduct that "speaks volumes". The court commented on the inconsistency of the applicant claiming not to want to press criminal charges for the alleged forgery because it was a "family matter" while simultaneously claiming to be estranged from his wife - noting there would be "no family to save" if truly estranged. The court observed that correspondence can be marked "without prejudice" inappropriately, questioning why a letter meant for court consideration bore such a marking.

This judgment reinforces critical principles in Zimbabwean civil procedure regarding condonation applications. It emphasizes that parties seeking condonation must provide full, honest explanations with supporting documentary evidence, not bare allegations. The judgment illustrates the application of the doctrine of approbation and reprobation - a party cannot simultaneously benefit from and challenge the same order. It confirms that fraud allegations must be properly substantiated with expert evidence, police reports or other concrete proof, not hollow assertions. The case also applies the principle of common mistake in contract law, holding that parties cannot escape contractual obligations due to common mistakes, particularly where subsequent ratification occurred. It demonstrates judicial intolerance for cavalier litigation conduct and authorizes punitive costs where a party acts dishonestly to derail judicial processes. The judgment affirms that condonation is an indulgence requiring satisfaction of cumulative factors: extent of delay, reasonableness of explanation, prospects of success, prejudice, finality, and interests of justice.