Ellen Lucie Borgonovo v The Master of the High Court and A.M. Rosetteinstein the Executor of the Estate of the Late Ruggero Borgonovo and Vanessa Angela Ngamiza

The applicant sought condonation for late filing of an application to review a decision made by the Master of the High Court on 16 May 2008. The Master had accepted a document written by the late Ruggero Borgonovo on 18 August 1999 as the deceased's last will and testament, despite the document not complying with the formalities required by s 8(1)(c) and (d) of the Wills Act [Chapter 6:06] as it had not been witnessed. The Master exercised his discretion under s 8(5) of the Wills Act to accept the will as valid. The applicant and the deceased were married in community of property and had a joint will. The third respondent's legal practitioners informed the executor in September 2008 that the Master had accepted the disputed will. The applicant's legal practitioners were not aware of the Amendment Act empowering the Master to accept non-compliant wills and filed an ill-fated application in 2010 which was dismissed in 2013 for procedural defects. The present application was filed in 2012.

• Whether the court has jurisdiction to condone non-compliance with the peremptory 30-day period stipulated in s 8(6) of the Wills Act for appeals against the Master's decision
• Whether condonation should be granted for the late filing of the review application
• Whether the applicant provided sufficient explanation for the delay
• Whether the applicant's prospects of success warrant granting condonation
• Whether the Master's failure to give the applicant an opportunity to be heard constituted a gross irregularity
• What costs order should be made given the conduct of the applicant's legal practitioners

1. The applicant's late lodging of an application to review the 1st respondent's decision to accept Annexure 'A' as the Will of the late Ruggero Borgonovo is condoned. 2. Applicant shall lodge her review papers within 7 days of this order. 3. Applicant to pay 50% of 3rd respondent's costs on an attorney-client scale. 4. The estate through the Executor to pay the remaining 50% of 3rd respondent's costs on an attorney-client scale.

1. Courts have inherent common law jurisdiction to condone late filing of review applications even where statutory provisions stipulate peremptory time limits, particularly where gross irregularities are alleged. 2. The failure of legislation to provide for condonation in circumstances where non-compliance arises beyond a litigant's control would be unconstitutional. 3. The Master of the High Court must afford parties an opportunity to be heard before exercising discretion under s 8(5) of the Wills Act to accept a non-compliant will, particularly where a joint will exists, the parties were married in community of property, and joint assets are involved. Failure to do so constitutes a gross irregularity justifying review. 4. In exercising discretion to grant condonation, courts must consider: the degree of non-compliance, explanation for delay, importance of the case, prospects of success, the respondent's interest in finality, convenience of the court, and avoidance of unnecessary delay in administration of justice. The overarching consideration is fairness and the interests of justice. 5. A litigant may in exceptional circumstances not bear the full consequences of their legal representatives' blunders where they sought legal counsel and the errors are not of their making, particularly where senior legal practitioners fail to be conversant with legislative amendments.

The court made observations about the unforgivable nature of senior lawyers not being conversant with a 10-year-old amendment to the Wills Act. The court also noted that while generally litigants cannot escape the consequences of their representatives' actions (citing Kodzwa v Secretary for Health & Another 1999 ZLR 313 (S)), there is a point beyond which this principle should not apply, and the circumstances of this case were different. The court gave an example of situations warranting condonation despite peremptory time limits, such as where a person is unable to meet deadlines due to being in a coma or being afflicted by mental illness, stating that to shut legal doors completely against such persons would be a travesty of justice. The court also observed that the third respondent had not sought to accelerate conclusion of the estate administration by bringing any application herself.

This case is significant in Zimbabwean law for establishing that courts have inherent common law jurisdiction to grant condonation for late filing of review applications even where statutory time limits appear peremptory, particularly where gross irregularities are alleged. It affirms the principle that failure to provide a mechanism for condonation where non-compliance arises through no fault of the litigant would be unconstitutional. The case also demonstrates the importance of procedural fairness and the right to be heard in administrative decisions by the Master of the High Court, particularly in matters involving joint wills and matrimonial property. It further illustrates the court's willingness to distinguish between a litigant's own conduct and blunders by their legal representatives in appropriate circumstances, while still imposing punitive costs where legal practitioners' conduct has been reckless.