James Chigwedere v Mugove Gerald Madzivire and Nyasha Monica Madziyire

In 2012, the applicant launched a project to subdivide his stands in Glen Lorne for resale. He gave a mandate to sell the stands to Alison Chikava of Ivory Gate (Pvt) Ltd, an estate agent. He subsequently cancelled the mandate when he discovered the estate agent was operating without a registered licence. The applicant later discovered that the estate agent had sold stand 3043 for $80,820.00 to the respondents without his authority and reported the matter to police, denying signing the agreement of sale. The respondents issued summons and obtained default judgment on 3 February 2016 when the applicant failed to attend a pre-trial conference. The applicant claimed his legal practitioners never advised him of the conference date. He instructed his former legal practitioners to file a rescission application, believing it had been filed, but later discovered nothing was filed. He changed legal practitioners but by then was already out of time. He filed the application for condonation on 20 September 2016, more than 6 months after the judgment.

• Whether the court should condone the late filing of an application for rescission of judgment
• Whether the applicant provided a sufficient explanation for the delay
• Whether the applicant had prospects of success on the merits
• Whether a principal is bound by the acts of his agent who exceeded authority
• Whether non-compliance with rules of court (filing in proper form) should be condoned

The application for condonation of late filing of an application for rescission of judgment was dismissed with costs.

1. In applications for condonation of late filing, an applicant must provide a detailed explanation for delay including specific dates showing when each step was taken to address non-compliance with the rules. 2. Where a legal practitioner's conduct caused the delay, that practitioner must file an affidavit explaining their conduct and the reasons for delay. 3. Where there has been flagrant breach of court rules and no reasonable explanation for delay, the application should be dismissed regardless of prospects of success on the merits. 4. A principal is bound by the acts of his agent performed within the scope of the agency relationship, even where the agent exceeds authority, in accordance with the maxim 'qui facit per alium facit per se' (he who does an act through an agent does it himself).

The court made critical observations about legal practitioners who deliberately omit dates from condonation applications in an attempt to hoodwink the court, stating 'it is high time legal practitioners learnt that deception does not pay.' The court also noted that legal practitioners have a habit of refraining from including dates in these applications in the 'feign hope that the court will not detect the omission.' The court remarked that 'this is one such case when the sins of a legal practitioner ought to be visited on a client,' expressing frustration with poor drafting practices. The court also observed that the applicant appeared to have received $8,000 for the stand, suggesting awareness of and assent to the sale, making it surprising he would receive such monies if he had not sold the stand.

This case reinforces strict judicial approach to condonation applications in Zimbabwean civil procedure. It emphasizes that legal practitioners must provide detailed explanations with specific dates when explaining delays, and that failure to do so will not be overlooked by courts. The case also demonstrates the application of agency law principles that a principal is bound by the acts of his agent, even where the agent exceeds authority or acts fraudulently, in line with established principles from Amy Zimbabwe Pvt Ltd v Cassalee Holdings and Henney v Annesley. It serves as a warning that the sins of legal practitioners will be visited upon clients where there is flagrant disregard of court rules.