Charles Ndebele v S.B Nunu N.O and Anor

On 14 November 2022, the 1st respondent (Additional Master sitting at Filabusi Magistrates Courts) ruled that Stand No. 19 Pansikwe Business Centre, Insiza District, belonged to the Estate of the late Gladys Dungeni (registered under F/L DR 07/22). The 2nd respondent was the appointed executrix. The applicant claimed he had purchased the property as an empty stand from the deceased in 2001 and developed it into a shop. On advice from his legal practitioners, the applicant issued summons seeking declaratory relief to declare the sale agreement binding. The 2nd respondent raised a special plea of res judicata which was upheld by Dube-Banda J under case HC 2323/22. The applicant appealed to the Supreme Court (SCB 25/23) which also upheld the High Court ruling. The applicant then filed this application for condonation and extension of time to file a review application, almost a year after the Additional Master's determination, well beyond the eight-week period prescribed by Rule 62(4) of the High Court Rules, 2021.

• Whether condonation should be granted for non-compliance with Rule 62(4) of the High Court Rules, 2021
• Whether extension of time to file a review application should be granted
• Whether a litigant should bear the consequences of his legal practitioner's errors in choosing the wrong legal remedies
• Whether the delay was adequately explained
• Whether the applicant had prospects of success in a potential review application

1. The application for condonation for non-compliance with Rule 62(4) of the High Court Rules, 2021 was granted. 2. The application for extension of time within which to file an application for review was granted. 3. Applicant was ordered to file his application for review within 10 days of the order. 4. Costs to be in the cause.

In applications for condonation and extension of time, where a litigant has pursued incorrect legal remedies on the advice of legal practitioners resulting in inordinate delay, the court must assess all relevant factors cumulatively (length of delay, reasons for delay, prospects of success, prejudice, and need for finality). Strong prospects of success on the merits of the intended application can compensate for inadequate explanations for delay and lengthy non-compliance with procedural rules. The sins of legal practitioners should not automatically be visited upon their lay clients, particularly where the client reasonably relied on professional advice, the practitioners have since withdrawn, and the client has genuine prospects of success. The overriding consideration is fairness to both parties and the interests of justice in allowing matters of substance to be determined on their merits.

The court observed that even if the review application succeeded, the applicant would still need to file a claim with the executrix (2nd respondent). However, the court noted that as long as the Additional Master's determination remained extant, any such claim would be met with a res judicata plea, making it necessary to first challenge that determination. The court also commented on the concerning trend of increasing applications for condonation due to attorney negligence, citing with approval the concerns expressed in Saloojee about laxity and the burden such applications place on the courts. The court noted that the legal practitioners who had advised the incorrect course of action had renounced agency and failed to provide any affidavit explaining their choices, which was a relevant factor in assessing blame.

This case illustrates the Zimbabwean courts' approach to balancing the principles of condonation applications where legal practitioners have provided incorrect advice leading to substantial delays. It demonstrates that while there are limits to absolving litigants from their attorneys' negligence (per Saloojee), courts will consider the cumulative effect of all factors, and strong prospects of success can compensate for poor explanations and lengthy delays. The case emphasizes that fairness to both parties remains paramount, and that lay litigants should not always bear the full consequences of their legal practitioners' errors, particularly where those practitioners abandon their client and fail to explain their conduct. It also confirms the principle that courts should afford parties opportunities to litigate on the merits to achieve finality in matters of significant importance to both parties.