In Re The Malilangwe Trust

The applicant, a charitable trust of a public character, was registered with the Registrar of Deeds under notarial deed of trust number MA NO 2079/2019 on 25 September 2019. Thereafter, it lodged a chamber application with the High Court seeking registration and certification of the same trust. On 2 January 2020, a judge in chambers granted an order directing the Registrar of the High Court to register the trust and issue a registration certificate upon payment of appropriate fees. The Registrar of the High Court was unable to implement the order and sought directions from the presiding judge. The judge then invoked Order 49 Rule 449 of the High Court Rules, 1971 and, after notice to the applicant and hearing arguments, revoked the order on 15 September 2020 (judgment HMT 59/20) on the basis that it was "erroneously sought and erroneously granted". The applicant sought to appeal on 7 October 2020, one day after the prescribed period had lapsed. An initial application for condonation was filed under the wrong rule (r 61 instead of r 43) and was removed from the roll. The present application for condonation and extension of time to appeal was filed on 19 November 2020.

• Whether an appeal can properly be filed to the Supreme Court without a respondent
• Whether the applicant should be granted condonation for late filing of the notice of appeal
• Whether the applicant had prospects of success on appeal against the rescission of the order
• Whether the High Court had jurisdiction to register and certify the trust when it had already been registered with the Registrar of Deeds
• Whether the order of 2 January 2020 was erroneously sought and erroneously granted in terms of Rule 449(1)(a)
• Whether the Registrar of the High Court was an interested party who should have been cited
• Whether a trust has legal standing to sue in its own name

1. The application is dismissed. 2. No order as to costs.

The binding legal principles established are: (1) Ex parte applications may be properly brought before the Supreme Court where there is genuinely no other interested party to the proceedings, as contemplated by High Court Rules Order 32 Rule 226(2)(d)(ii) read with Supreme Court Rules 2018 Rule 39(4); (2) For an order to be rescinded under Rule 449(1)(a), three conjunctive prerequisites must be met: the judgment must have been erroneously sought or granted; it must have been granted in the absence of the applicant; and the applicant's rights or interests must be affected by the judgment; (3) A party who is required by a court order to perform specific acts is an interested party who must be cited as a respondent, even if that party is a court official such as the Registrar; (4) The High Court has no inherent or statutory jurisdiction to register trusts where such power is specifically vested by statute in another authority (the Registrar of Deeds under the Deeds Registries Act Chapter 20:05); (5) The inherent jurisdiction of the High Court codified in section 13 of the High Court Act is expressly made subject to other legislation by the opening words "subject to this Act and any other law"; (6) Ministerial regulations prescribing fees for services under section 57 of the High Court Act cannot create jurisdiction where none exists in the underlying statute; (7) A party that has already obtained proper registration from the statutorily designated authority lacks a cause of action to seek duplicate registration from another body.

The court made several obiter observations: (1) The court expressed gratitude for counsel's industry in addressing the preliminary point regarding ex parte appeals; (2) The court observed that between 1992 and 2009, in re cases that came before the Supreme Court were typically constitutional challenges or dealt with immigration, criminal offences, contempt, or fraud matters, noting it could not find a case on all fours with the present matter; (3) The court emphasized that the duty of legal practitioners is to be knowledgeable about the rules of court and not to make excuses based on ignorance of the rules on behalf of clients, though in this case the errors were characterized as "minor bleeps and blunders"; (4) The court noted that addressing an application to the Registrar is an administrative device for filing purposes and does not constitute service on the Registrar as a litigant; (5) The court distinguished between the registration certificate for trusts (issued by Registrar of Deeds) and registration certificates for legal practitioners (issued by Registrar of the High Court under the Legal Practitioners Act Chapter 27:07); (6) The court referenced the recent decision in Sharadkumah Patel & Anor v The Cosmo Trust & Ors SC 165/21 which held that a trust has legal capacity to sue in its own name, but observed that this does not affect the principle that the founding affidavit must be deposed to by a trustee to render the application valid; (7) The court indicated that even if Rule 449(1)(a) were inapplicable, it would have invoked its review powers under section 25(2) of the Supreme Court Act to set aside both the original order and the rescission judgment as the original application was fundamentally misconceived.

This case is significant in Zimbabwean civil procedure for several reasons: (1) it clarifies that ex parte applications (applications without a respondent) may be properly brought before the Supreme Court in certain circumstances where there is truly no other interested party; (2) it confirms the proper application of Rule 449(1)(a) of the High Court Rules regarding rescission of orders erroneously granted in the absence of affected parties; (3) it delineates the respective jurisdictions of the High Court and the Registrar of Deeds regarding registration of trusts, confirming that statutory registration functions cannot be assumed by the High Court absent specific legislative authority; (4) it emphasizes that the inherent jurisdiction of the High Court under section 13 of the High Court Act is subject to and limited by specific statutory provisions; (5) it reinforces the principle that a trust is not a legal person and must be properly represented by trustees in litigation; (6) it illustrates the Supreme Court's review powers under section 25(2) of the Supreme Court Act, which may be exercised whenever irregularities come to the court's attention even if not specifically raised on appeal.