Edith Madzingesu Mtetwa v Herbert Mtetwa and Others

The applicant's husband died and she registered his estate as executor. The deceased bequeathed their matrimonial home in Mount Pleasant to the first respondent (their biological son) through a will. In 2021, the applicant was diagnosed with a bipolar condition and placed at Athol Evans Old People's Home for 2 years. A curator bonis (second respondent) and curator ad litem were appointed to manage her affairs. Due to her condition, she was removed as executor of her late husband's estate and the third respondent was appointed as executrix dative. In 2022, the applicant was informed that the Mount Pleasant property was being rented out to pay for her upkeep, and later that it had been sold by the fourth respondent. The applicant brought this application seeking to set aside the appointment of the curator bonis, remove the third respondent as executrix, reinstate herself as executrix, and set aside all decisions made by the second and third respondents, including the sale of the property.

• Whether the application was properly before the court in the absence of a certificate of service filed with the Registrar
• Whether non-compliance with Rule 58(14) of the High Court Rules, 2021 is fatal to the application
• Whether the peremptory language of Rule 58(14) requiring proof of service to be filed within 5 days renders non-compliance a nullity

The application was struck off with costs.

Where Rule 58(14) of the High Court Rules, 2021 requires an applicant to file proof of service with the Registrar within 5 days of service, this is a peremptory requirement. The use of the word "shall" indicates the legislature's intention to make the provision mandatory. Failure to comply with this peremptory provision renders the application fatally defective and deemed abandoned in terms of Rule 58(15), making it a nullity. Non-compliance with such peremptory procedural rules cannot be condoned and results in the application being struck off the roll.

The court observed that if courts do not stamp their authority by emphasizing the importance of complying with the rules, legal practitioners will continue with a lackadaisical approach to drafting and compliance with rules which cannot be tolerated. The court also commented that it found the applicant's explanation that certificates were filed before the IECMS system was introduced and misplaced by the Registrar to be hard to accept, questioning why only the certificates of service would be misplaced and why copies could not be produced from the applicant's own records if they had indeed been filed.

This case reinforces the strict approach Zimbabwean courts take to compliance with peremptory provisions of the High Court Rules, particularly Rule 58(14) and (15) requiring proof of service to be filed within 5 days. It demonstrates that failure to comply with such mandatory rules will result in an application being deemed abandoned and struck off, regardless of the merits. The case emphasizes the court's intolerance of lackadaisical approaches to procedural compliance by legal practitioners and affirms that court rules regulate access to justice and must be strictly observed.