Manala Loveness Motsi v Virginia Chidhakwa (nee Machokoto) and Deputy Master of the High Court

The late Remnsi Machokoto died on 7 January 2000 and was survived by his wife Miriam Machokoto, who was appointed executrix dative of his estate. Miriam died on 4 July 2001 before completing the winding up of her husband's estate. Their daughter Martha Mataruka was appointed executrix dative on 5 May 2005 but also died before completing the estate. The applicant was appointed executrix and issued letters of administration for the late Remnsi Machokoto's estate on 1 August 2014. More than 5 years later, on 16 October 2019, the first respondent (daughter of the deceased) filed an application for the applicant's removal as executrix. On 2 July 2020, the High Court granted the removal application. The applicant failed to note an appeal within the prescribed 15 days (which expired on 23 July 2020) and filed this application for condonation and extension of time on 29 October 2020, approximately 3 months later.

• Whether condonation should be granted for the late noting of an appeal
• Whether the applicant provided a reasonable explanation for the delay in noting the appeal
• Whether the applicant demonstrated prospects of success on appeal
• Whether the High Court properly exercised its discretion in removing the applicant as executrix dative

The application for condonation of the late noting of an appeal and extension of time within which to appeal was dismissed with costs.

1. An application for condonation of late noting of an appeal requires both a reasonable explanation for the delay in noting the appeal AND a reasonable explanation for any delay in seeking condonation itself. 2. Where no acceptable explanation for non-compliance with rules is given, the applicant must show very good prospects of success on appeal. 3. An appellate court will not lightly interfere with the exercise of discretion by a lower court unless it is shown that the discretion was exercised unreasonably or irrationally. 4. Condonation is not a mere formality but requires the applicant to satisfy the court with sufficient and satisfactory grounds, and the court must exercise proper judicial discretion. 5. The function of a judge in a condonation application is that of a gatekeeper assigned to vet and keep away proposed appeals without merit.

The court observed that the applicant's conduct as executrix bordered on criminality, particularly in relation to the unauthorized sale of estate property and failure to account for proceeds. The court also commented that the explanation regarding COVID-19 contamination of papers "does not make any sense" and described the overall explanation as "a dog's breakfast." The court declined to award costs on the adverse scale as requested by the respondent, finding no warrant for such an order in this case, but applied the normal rule that costs follow the result.

This case reinforces important principles in Zimbabwean civil procedure regarding applications for condonation. It emphasizes that condonation is not automatic and requires both a reasonable explanation for delay and demonstration of prospects of success on appeal. The case also illustrates the serious view courts take of executor misconduct, including improper disposal of estate assets, failure to account, delegation of statutory duties, and non-compliance with obligations to the Master. It demonstrates the court's gatekeeping function in preventing unmeritorious appeals from proceeding. The judgment also addresses contemporary issues such as COVID-19 related explanations for delay, setting a standard that such explanations must be reasonable and consistent with the facts.