Belia Zibowa and Blessing Zibowa v Isaiah Shonhiwa and Terrence Kenny and Sheriff of the High Court (NO) and Willing Shoko and Registrar of Deeds (NO) and FBC Building Society

The applicants filed an application for review of a sale in execution by the Sheriff of their co-owned property, alleging gross irregularities in the conduct of the sale. The applicants alleged that: (1) respondents failed to follow court rules regarding attachment and sale of movable property; (2) the 1st and 5th respondents ignored a court order removing half of the immovable property from the court order used to transfer the property; (3) respondents committed gross irregularities in the attachment, sale and transfer of applicants' property; and (4) applicants were never afforded an opportunity to be heard before the sale of their immovable property was confirmed. The 6th respondent raised a point in limine that the application was invalid for failing to comply with Order 33 Rule 257, which requires that a review application state shortly and clearly the grounds for review and the exact relief prayed for. The applicants' review application stated the grounds but failed to state the exact relief sought on the face of the application, though a draft order was attached.

• Whether the applicants' review application complied with the requirements of Order 33 Rule 257 of the High Court Rules
• Whether non-compliance with Rule 257 is fatal to a review application
• Whether the court should exercise its discretion under Rule 4C to condone departure from the court rules in the circumstances
• What requirements must be satisfied for a court to grant condonation for non-compliance with court rules

The application was dismissed with costs.

A review application that fails to state the exact relief prayed for on its face does not comply with Order 33 Rule 257 and is fatally defective, meaning there is no valid application before the court. Where a litigant seeks condonation for departure from court rules under Rule 4C, a proper case must first be made for such departure through an explanation for the non-compliance. Rule 4C was not intended to be abused by litigants who blatantly disregard court rules, but to assist litigants with practical and plausible explanations for their non-adherence to the rules. A bare request for condonation without any foundation or explanation is insufficient to invoke the court's discretion under Rule 4C. Strong grounds must be advanced to persuade a court to act outside the provisions of the court rules.

The court observed that the rules of court were made to ensure the proper administration of justice and that while the rules were made for the court and not the court for the rules, departure from the rules must be justified. The court noted that even an application for condonation of failure to comply with the rules should be in written form, and criticized the applicants' counsel for making only oral submissions from the bar. The court emphasized that applicants had ample time to make a formal application for condonation once the issues were raised in opposing papers but chose to ignore pertinent issues and gamble on the aspect, which attitude should be discouraged by the court.

This case reinforces the strict approach taken by Zimbabwean courts to compliance with procedural rules governing review applications, particularly Order 33 Rule 257. It emphasizes that non-compliance with the requirement to state the exact relief sought is fatal to a review application. The case also clarifies the proper approach to applications for condonation under Rule 4C, confirming that courts will not grant condonation as a matter of course or upon bare request, but require litigants to make a proper case explaining their non-compliance. The judgment serves as a warning against cavalier disregard of court rules and discourages the practice of seeking condonation without proper foundation.