M & W Motors (Pvt) Ltd and Sydney Tenganiso and Siminyeni Sibindi v Owen Mudha Ncube and Tapiwa Muganhu

This application arose from HC 4321/15 where the applicants obtained a provisional order for restoration of possession of property Stand No. 1244/1209, No 1 Harare Road, Kwekwe. On the return date, Chitapi J granted the order interdicting the respondents from interfering with the applicants' possession but dismissed the applicants' claim for costs against the first respondent, finding that the applicants had failed to prove the first respondent's involvement in the alleged spoliation. The applicants were awarded costs against the second respondent on an attorney-client scale. The applicants noted an appeal on 23 August 2017 against the dismissal of their costs claim against the first respondent. However, this appeal was struck off the roll by the Supreme Court as it was noted without first obtaining leave to appeal. The applicants then brought this application for condonation of late filing and for leave to appeal to the Supreme Court.

• Whether condonation should be granted for late filing of an application for leave to appeal
• Whether leave to appeal should be granted against the costs order
• Whether the appeal had reasonable prospects of success
• Whether the delay was reasonably explained
• Whether costs de bonis propriis should be awarded against the applicants' legal practitioners

The application for condonation and leave to appeal was dismissed with costs.

An application for condonation of late filing requires a reasonable explanation for the delay. Where a legal practitioner's procedural error caused the delay, the legal practitioner should depose to the founding affidavit under Rule 227(4) to explain the circumstances. A purported appeal noted without first obtaining leave to appeal where leave is required is a nullity ab initio, and time for compliance with rules cannot be computed from the date such nullity was struck off. The absence of a reasonable explanation for delay is fatal to an application for condonation, regardless of other factors. Condonation is an indulgence granted in the court's discretion based on established criteria including extent of delay, reasonableness of explanation, prospects of success, prejudice, finality in litigation, and convenience of the court.

The court observed that costs de bonis propriis may be appropriate where a legal practitioner's conduct is improper and negligent, but mere ignorance of procedural law does not constitute negligence or impropriety warranting such an order. The court suggested that an order that the legal practitioner not recover fees from the client or refund fees charged for processing an invalid application might have been appropriate in this case, but did not make such an order as counsel had not been asked to address the court on this issue. The court also commented that the pursuit of costs against the first respondent appeared to be motivated by considerations other than the genuine need to recover costs, since the applicants had already been awarded costs on a punitive scale against the second respondent.

This case illustrates the strict requirements for condonation applications in Zimbabwean law. It emphasizes that: (1) condonation is an indulgence, not a right; (2) a reasonable explanation for delay must be provided; (3) the person with knowledge of the facts causing delay should depose to the affidavit (Rule 227(4)); (4) a nullity begets a nullity and invalid proceedings cannot form the basis for computing delay favorably; (5) prospects of success are a critical consideration; and (6) costs de bonis propriis will only be awarded in exceptional circumstances involving impropriety or negligence, not mere ignorance of procedural law.