FBC Building Society v Blessing Zibowa and Others

FBC Building Society sought leave to appeal against an interlocutory judgment by MABHIKWA J that had granted the 1st and 2nd respondents (Blessing Zibowa and Belia Zibowa) condonation for late filing of an application for review under case number HC 1096/2019. The 1st and 2nd respondents had previously made an application for review under case number HC 2748/18, which was dismissed by MOYO J for failure to comply with rule 257 of the High Court Rules, 1971. The applicant filed a chamber application for leave to appeal in February 2020, which was initially set down as a chamber application but was referred to the opposed roll by the Judge on 10 March 2020. The application was only heard in June 2022. The application was served on the 1st and 2nd respondents on 26 February 2020 (a Friday), and they filed their notice of opposition on 2 March 2020 (a Monday, after the weekend).

• Whether the chamber application for leave to appeal complied with the mandatory provisions of rule 241 of the High Court Rules, 1971, specifically the proviso requiring applications to be served on interested parties to be in Form 29 with appropriate modifications
• Whether the application complied with the mandatory provisions of rule 263, which requires the application to state why application was not made in terms of rule 262, the proposed grounds of appeal, and the grounds upon which leave to appeal should be granted
• Whether the 1st and 2nd respondents' notice of opposition was filed out of time
• Whether the provisions of rules 262 and 263 are peremptory or directory in nature

The points in limine raised by the 1st and 2nd respondents were upheld. The application for leave to appeal was struck off the roll with costs. The applicant's point in limine regarding late filing of the notice of opposition was dismissed.

A chamber application for leave to appeal remains a chamber application and must comply with rule 241 of the High Court Rules, 1971, including the proviso requiring that where such application is to be served on interested parties, it must be in Form 29 with appropriate modifications, not Form 29B. The specificity of rule 263 does not displace the general requirements of rule 241. Rule 263 contains peremptory provisions (using the word "SHALL") that must be complied with, requiring the application to state: (1) the reason why application was not made in terms of rule 262; (2) the proposed grounds of appeal; and (3) the grounds upon which it is contended that leave should be granted. A failure to comply with peremptory provisions of the rules of court renders an application fatally defective and a nullity. The notice in an application serves important purposes: it informs the respondent of the steps required to oppose the application, places the onus on the respondent to file and serve papers within a given period, provides the applicant's address for service, and informs the court and Registrar of the requirements placed upon the respondent.

The court observed that it would be contrary to settled law and introduce a novel approach to suggest that respondents ought to look to the cited rule themselves to be informed of what to do and when to do it, rather than being properly notified in the application itself. The court noted that the explanation proffered by the applicant from the bar as to why rule 262 was not complied with (that the judgment was ex tempore and reasons were awaited) was not a true reflection of the facts, as reasons were given at the time the ex tempore judgment was handed down and other respondents were able to appeal relying on that judgment. The court also commented on the fallacy of arguing that lack of compliance with rule 263 is unimportant because the judge is already aware of the issues, noting that the rules provide for any other judge to deal with the application in the absence of the original judge. The "may" in rule 262 is permissive to an applicant who has not complied with rule 262 but who is still desirous to seek leave to appeal, but if they choose to proceed under rule 263, they must comply with its mandatory provisions.

This case reinforces important principles of procedural compliance in Zimbabwean civil procedure, particularly for chamber applications and applications for leave to appeal. It clarifies that chamber applications for leave to appeal, despite seeking specific relief, remain fundamentally chamber applications that must comply with rule 241 of the High Court Rules, 1971, including the proviso requiring use of Form 29 (not Form 29B) where the application is to be served on interested parties. The judgment emphasizes that the mandatory provisions of rule 263 must be strictly complied with, and that attempts to justify non-compliance in answering affidavits or from the bar are insufficient. The case demonstrates the court's strict approach to procedural requirements and the consequences of failing to comply with peremptory provisions of the rules. It also provides guidance on the calculation of dies induciae when service occurs on a Friday, clarifying that weekends are excluded from the calculation.