Delma Lupepe v Ecobank Zimbabwe Limited

The applicant (Lupepe) sought upliftment of a bar that became effective after he failed to file heads of argument timeously in a summary judgment application (HC 803/16). The respondent (Ecobank) was seeking to eject the applicant from immovable property (Lot 9 of Subdivision 2 of Subdivision B of Farm 7 and stands 75-85 of Matshemhlope, Bulawayo) registered in the respondent's name since March 2016. The applicant's previous legal practitioners renounced agency in February 2017 before the respondent served its heads of argument on 10 March 2017. The applicant then became a self-actor. The applicant instructed new legal practitioners on 3 November 2017, but they only filed heads of argument on 31 January 2018, almost 3 months later. The applicant claimed his legal practitioners initially assumed agency only to negotiate a settlement. The property had been sold by private treaty to the respondent as judgment creditor in execution proceedings.

• Whether the applicant should be granted condonation for the late filing of heads of argument
• Whether the delay in filing was adequately explained
• Whether the applicant had prospects of success in defending the summary judgment application based on actio rei vindicatio
• Whether a judgment creditor is prohibited from purchasing property sold in execution of judgment in their favor
• Whether the appropriate costs order should be on the attorney-client scale

1. The application was dismissed. 2. The applicant was ordered to pay costs on the attorney-client scale.

When considering an application for condonation for late filing, courts must consider collectively the degree of non-compliance, explanation for delay, importance of the case, prospects of success, respondent's interest in finality, court convenience, and avoidance of unnecessary delay. A considerable delay with an unreasonable explanation and no prospects of success will result in dismissal. There is no rule of law prohibiting a judgment creditor from purchasing property sold in execution of a judgment given in their favor. In an actio rei vindicatio (vindicatory action), where property is registered in the respondent's name and the deed of transfer has not been set aside, the applicant cannot successfully defend merely by alleging procedural irregularities in the sale process.

The court noted that legal practitioners are officers of the court and must use respectful and measured language in relation to other officers of the court. The court observed that it would have considered an order for costs de bonis propriis (personally against the legal practitioner Mr Govere) if such a request had been made, given his use of intemperate language and unsubstantiated allegations of fraud and hypocrisy against the Sheriff. There is no justification for impugning the professional integrity of another officer of the court, especially where serious allegations are made without supporting evidence.

This case reinforces the strict application of condonation principles in Zimbabwean civil procedure, particularly emphasizing that all factors must be considered collectively. It clarifies that judgment creditors are not prohibited from purchasing property sold in execution of their own judgments. The case also serves as an important reminder to legal practitioners about maintaining professional standards and using respectful language regarding other officers of the court, with the court indicating it would have considered costs de bonis propriis (against the legal practitioner personally) had such a request been made.