Farhigh Trading (Pvt) Ltd v The Additional Sheriff Chivhu, Central Estate (Pvt) Ltd and Peter Taruvinga and 37 Others

The third respondent, a group of 38 former employees of Central Estates (Pvt) Ltd (second respondent), successfully sued the second respondent through arbitration for arrear salaries totaling $228,945. Following registration of the arbitral award, the third respondent instructed the first respondent (Additional Sheriff) to attach movable property of the second respondent. The applicant, Farhigh Trading, claimed ownership of the attached property and an interpleader notice was issued under HC 7899/13. The applicant filed a defective opposing affidavit that was deposed to by one person but signed by another. The court dismissed the applicant's claim in the interpleader proceedings on the basis that it did not properly oppose. The applicant appealed, but later withdrew the appeal on advice of new legal practitioners (appointed on 8 June 2015 after Scanlen & Holderness renounced agency on 11 May 2015). On 27 January 2016, the applicant filed an application for condonation of late filing of an application for rescission of judgment. The applicant claimed ownership based on HC 223/14 (later referred to as HC 223/15), but its own application for summary judgment against the second respondent showed it had not yet obtained ownership and was seeking delivery of the goods or refund of the purchase price.

• Whether the applicant should be granted condonation for late filing of an application for rescission of judgment
• Whether the applicant provided a sufficient explanation for the delay and the defective affidavit
• Whether the applicant had a bona fide claim to ownership of the attached property
• Whether the applicant and second respondent were colluding to frustrate execution
• Whether the degree of non-compliance with court rules was excusable
• Whether all members of the third respondent were properly cited

The application for condonation was dismissed with costs.

An application for condonation of late filing requires: (1) an acceptable explanation for both the initial default and the delay in seeking condonation; (2) reasonable prospects of success on the merits; (3) that the degree of non-compliance with court rules not be so serious as to be inexcusable; (4) consideration of prejudice to the other party; and (5) that the court exercise its discretion judicially based on fairness to both sides. A party who knows of an irregularity in their papers (such as an affidavit deposed to by one person but signed by another) and fails to correct it before the matter is heard cannot later blame legal practitioners for wrong advice. Condonation will not be granted where there is evidence of collusion and abuse of process, where the applicant has no real rights in the property claimed, and where inordinate delay (37 months) is unexplained. A party claiming ownership in interpleader proceedings must have real rights, not merely personal rights against the judgment debtor.

Mangota J observed that the applicant's conduct showed it was "not being candid with the court" when it claimed ownership while simultaneously suing the second respondent for delivery or refund of purchase price. The judge noted that "if a delay of four months could not be condoned in the Dick case, I find it difficult to see how a delay of 36 or 7 months can be condoned in casu." The court also commented that the third respondent's allegation of collusion between the applicant and second respondent was "well made as well as real" given that the same person (James Nqindi) deposed to affidavits on behalf of both the applicant and the judgment debtor at different times. The judge emphasized that HC 223/15 "does not confer ownership" but merely provides an alternative remedy for the applicant to obtain a refund from the second respondent, which avenue "remains open to it."

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the strict requirements for condonation applications, particularly regarding explanation for delay and degree of non-compliance; (2) the fundamental rule that an affidavit must be deposed to and signed by the same person; (3) the court's intolerance of abuse of process and collusive conduct designed to frustrate legitimate execution; (4) the distinction between real rights and personal rights in property disputes; (5) the importance of expeditious prosecution of appeals and remedies; and (6) that a party cannot claim ownership of property when their own pleadings contradict such claim. The case emphasizes that condonation is not automatic and requires acceptable explanations, not merely reliance on legal practitioners' alleged errors when the applicant itself was aware of irregularities.