Elizabeth Moyo (In her capacity as the Executor Dative of the Estate of the Late Fredi Banda) v Busisani Ncube (In his capacity as the Executor Dative in the Estate of the Late Austin Banda)

This dispute arose within the Banda family concerning house number 4734 Nkulumane, Bulawayo. Austin Banda (the deceased son) and his family lived in the family home between 1983-1987. In 1995, Austin's father Fredi Banda experienced financial difficulties and could not afford municipal rates and installments. Fredi promised to donate the house to Austin, who then paid all outstanding amounts and continued residing there with his family. After Fredi's death in 1999 and Austin's death in 2004, the applicant (Fredi's daughter and Austin's sister, acting as Executor of Fredi's estate) resisted transferring the property to Austin's estate. Respondent (Executor of Austin's estate) obtained a default judgment on 24 February 2016 under HC 2906/15 authorizing the transfer. The property was subsequently transferred to Austin's estate. Applicant then sought condonation for late filing of an application for rescission of the default judgment, claiming she was not properly served as she was at her rural home ploughing when summons were affixed to her gate on 29 December 2015.

• Whether condonation should be granted for late filing of an application for rescission of default judgment
• Whether the applicant provided a satisfactory explanation for non-compliance with court rules
• Whether the applicant demonstrated prospects of success in the main matter
• Whether failure to cite and serve the Deputy Master of the High Court rendered the application fatally defective
• Whether the applicant's explanation was candid and honest

1. The application for condonation be and is hereby dismissed. 2. The applicant pays costs of suit.

An application for condonation of late filing requires the applicant to satisfy all requirements under the Viking Woodwork test and to do so with candor and honesty. Where an applicant's explanation for delay is tainted with dishonesty, contains material contradictions, and is implausible, condonation will be refused regardless of other considerations. Furthermore, in matters involving deceased estates, failure to cite and serve the Deputy Master of the High Court as required by Rule 248 renders an application fatally defective, as this rule is peremptory in nature and the Master is an interested party in all deceased estate matters.

The court made several non-binding observations: (1) A litigant is not entitled to hand over a matter to attorneys and wash their hands of it - where protracted delay becomes obvious even to a layman, passive inaction is unacceptable (citing Jabulani Ncube v Innocent Nyathi); (2) Flagrant breaches of rules without acceptable explanation may result in refusal of condonation whatever the merits, even where blame lies solely with the attorney (citing Paul Gary Friendship v Cargo Carriers Ltd); (3) Courts may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty because courts cannot be expected to pick and choose truth from lies (citing Contra (Pvt) Ltd v Pralene Moya); (4) Where averments in an opposing affidavit are not controverted in an answering affidavit, they must be taken as true; (5) The court suggested the applicant's claim arose from "greed" rather than bona fide grounds.

This case reinforces important principles in Zimbabwean civil procedure regarding applications for condonation. It emphasizes that: (1) condonation is an indulgence, not a right, requiring candor and honesty from applicants; (2) courts will not countenance dishonest explanations for delay; (3) Rule 248 requiring service on the Master in deceased estate matters is peremptory and non-compliance is fatal; (4) litigants cannot passively rely on attorneys but must take responsibility for their matters; and (5) courts may make adverse orders to disapprove of mala fides or dishonesty. The case demonstrates the court's willingness to scrutinize explanations for delay rigorously and refuse condonation where the explanation is implausible or contradictory.