Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited and The Ministry of Lands and Rural Resettlement

The applicant owned Bulfield Farm and in 1995 passed a servitude over part of the land in favour of the first respondent's predecessor in title for $4 million. The parties also concluded a lease agreement. In 2000, the farm was compulsorily acquired by the State under the Land Acquisition Act. The lease agreement expired but the first respondent remained in occupation, refusing to renew the lease on the basis that the State had acquired the land and the applicant had lost title. The applicant sought a High Court order declaring entitlement to benefits from the first respondent's occupation. On 21 June 2017, the High Court dismissed the application with costs, finding the applicant lacked locus standi. The applicant noted an appeal on 12 July 2017 within the prescribed period but failed to serve the Registrar of the High Court within the required time (delay of one day). The applicant filed this chamber application for condonation and extension of time ten months after becoming aware of the defect.

• Whether good and sufficient cause exists for condonation of the late filing of the notice of appeal
• Whether the applicant's proposed ground of appeal has prospects of success
• Whether an appellant can raise on appeal an issue not canvassed before the court a quo
• Whether an appellant can challenge the constitutionality of land acquisition for the first time on appeal when that issue was not raised in the court below

The application for condonation and extension of time was dismissed with costs.

An application for condonation of late filing of an appeal cannot succeed where the sole ground of appeal is incompetent because it seeks to raise for the first time on appeal an issue that was not before the court a quo and does not arise from the pleadings. An incompetent ground of appeal enjoys no prospects of success and therefore cannot constitute good and sufficient cause for condonation. Appellate courts will not assume first instance jurisdiction to determine novel points not canvassed and fully argued before the lower court. Compulsory acquisition of land by the State necessarily extinguishes the rights in the land held by the owner and results in loss of locus standi to bring any action based on those extinguished rights.

The Court noted that even in the interests of allowing access to justice, it could not overlook the unexplained ten-month delay where there were no prospects of success on appeal. The Court also observed that both counsel conceded the point sought to be raised was not raised a quo, and that the first respondent was willing to consent to the application being granted with no costs order, being confident of success when the appeal was argued on the merits. The Court remarked that to the applicant's credit, it did not seek to challenge the correctness of the court a quo's finding on locus standi, but instead incorrectly sought to challenge the acquisition itself.

This case reinforces important principles of South African and Zimbabwean civil procedure: (1) Courts will not grant condonation merely because it is unopposed - there must be good and sufficient cause; (2) Prospects of success on appeal is a critical factor in condonation applications; (3) An incompetent ground of appeal that cannot succeed cannot form the basis for granting condonation; (4) Appellate courts will not entertain for the first time issues not raised and argued in the court below, particularly where such issues would require the appellate court to assume first instance jurisdiction; (5) A ground of appeal must relate to issues actually decided by the court a quo; (6) The principle that compulsory acquisition of land by the State extinguishes the former owner's rights and locus standi to bring actions based on those extinguished rights.