Aston Alois Musunga v Law Society of Zimbabwe

The applicant, a legal practitioner and senior partner at Musunga & Associates, received conveyancing instructions on 2 November 2005 to attend to the transfer of a property sold by Michael Bvirindi and his wife to purchasers. He received the full purchase price in Zimbabwean dollars. Due to various factors including non-payment of his conveyancing fees, the applicant did not attend to the transfer, did not renounce agency, and critically, did not disburse the purchase price to the sellers. He kept the money in his trust account until the Zimbabwean dollar became worthless as functional currency. The purchasers obtained a court order for transfer, which was effected without the sellers receiving any consideration. Bvirindi lodged a complaint with the Law Society of Zimbabwe. On 14 July 2010, the applicant was found guilty of professional misconduct and was reprimanded and warned. After unsuccessfully requesting the respondent to review the decision, he received refusal on 10 December 2010. He only filed this review application on 19 December 2011, more than a year later.

• Whether the review application was filed within the prescribed time limits under Rule 259 of the High Court Rules
• Whether a substantive application for condonation is required when proceedings are filed out of time
• Whether the court can entertain a review application that is improperly before it due to failure to seek condonation

The application was dismissed with costs.

In the absence of a substantive application for condonation, a review application filed outside the eight-week period prescribed by Rule 259 of the High Court Rules is improperly before the court and must be dismissed. A cursory or passing reference to condonation in an affidavit does not constitute a substantive application. It is the making of the application for condonation that triggers the court's discretion to extend time. The date of termination of proceedings for purposes of calculating the time limit is the date when the decision was communicated to the applicant.

The court made observations about the applicant's conduct as a conveyancer, noting sarcastically that he had held onto purchase money in his trust account during hyperinflation until it became worthless, comparing this to the biblical parable of the servant who buried his master's silver. The court stated 'God help property owners who dare sell properties through the medium of such legal practitioners.' The court also noted that even if the matter had proceeded on the merits, the applicant would have faced serious difficulties. Additionally, the court noted that the respondent's opposition was also filed out of time and condonation was being sought separately, but that this was irrelevant since the application itself was improperly before the court.

This case reinforces the strict procedural requirements for review applications in Zimbabwean law, particularly the necessity of making a substantive application for condonation when time limits have been exceeded. It emphasizes that courts cannot extend indulgences that have not been properly sought, and that cursory or half-hearted references to condonation are insufficient. The case demonstrates the importance of compliance with Rule 259 of the High Court Rules and confirms that the making of an application for condonation is what triggers the court's discretion to extend time. It also illustrates the consequences of failing to comply with procedural requirements, even where the underlying professional misconduct may raise substantive concerns.