At The Ready Wholesalers (Private) Limited t/a Power Sales v Innocent Katsande and 5 Others

The applicant summarily dismissed six respondents from employment in terms of Statutory Instrument 368A of 1998. The respondents successfully challenged their dismissal in the High Court, where Mungwira J concluded that the dismissal was null and void. The applicant attempted to appeal to the Supreme Court but filed a fatally defective notice of appeal that did not comply with Rule 29(1)(c)(e) of the Supreme Court Rules. The applicant filed a notice of motion indicating an intention to apply for an extension of time and proposed new grounds of appeal at the hearing, but this motion was never served on the respondents. At the hearing, no application for condonation was made, and the appeal was struck off as a nullity (judgment S-36-02). The applicant then brought a Chamber application for an extension of time within which to note an appeal, filed 119 days after the judgment striking off the appeal.

• Whether condonation should be granted for the late filing of an appeal
• Whether an applicant must explain not only the delay in noting an appeal but also the delay in seeking condonation
• Whether a lackadaisical and dilatory approach to complying with court rules should be condoned
• The principles governing applications for condonation and extension of time

The application for an extension of time within which to note an appeal was dismissed with costs.

There are two hurdles an applicant must overcome in seeking condonation for late noting of an appeal: (1) explanation for the delay in noting the appeal and lodging the record timeously, and (2) explanation for the delay in seeking condonation. When an appellant realizes non-compliance with court rules, application for condonation must be made without delay. Where there are breaches of rules without acceptable explanation, condonation may be refused whatever the merits of the appeal, even where blame lies solely with the attorney. Sustained and customary failure to explain delays, particularly when shown to be a pattern with a particular litigant, is inexcusable.

The Court commented that the applicant's conduct revealed "a lackadaisical approach that borders on an abuse of court process." The Court noted that "the failure to explain, particularly when it is shown to be sustained and customary with a particular litigant, is inexcusable." The Court also observed that even if the case had merits, it should fail on the first hurdle of failing to act timeously to seek condonation.

This case reinforces the strict approach Zimbabwe courts take to compliance with procedural rules and the requirements for condonation applications. It emphasizes that litigants must not only explain delays in noting appeals but also delays in seeking condonation itself. The case demonstrates that repeated and unexplained delays, particularly when they show a pattern of disregard for court processes, will not be condoned regardless of the merits of the underlying case. It serves as a warning against abuse of court process through lackadaisical conduct.