Mathilda Mkurazhizha and Patricia Mukurazhizha v Melina Matshiya N.O.

The first applicant (mother) and second applicant (daughter) entered into an instalment sale agreement on 10 July 2003 with the Minchins to purchase property known as Lot 142 Pomona Estate Extension 2, Harare, for 28,500 GBP payable in monthly instalments of 200 GBP. The first applicant was to occupy the property rent-free while making payments. The applicants stopped making payments in May 2011. In 2017, the first applicant placed tenants on the property and collected rentals. The respondent, acting for Mrs Hilary Sue Minchin under a Special Power of Attorney, issued summons seeking cancellation of the agreement and eviction of the applicants. The court a quo confirmed cancellation, ordered eviction, and ordered the respondent to refund 50% of the purchase price (£11,297.00). The applicants' previous appeals (SC 662/24 and SC 268/25) were dismissed for non-compliance with rules. The applicants then filed this application for condonation for late noting of appeal and extension of time to appeal.

• Whether the intended notice of appeal was fatally defective
• Whether the application had become moot due to eviction of the applicants
• Whether the requirements for condonation and extension of time to appeal had been met
• Whether Rule 44(1)(c) of the Supreme Court Rules requires specification of whether the whole or part of the judgment is being appealed

The matter was struck off the roll with costs against the applicants.

A notice of appeal is fatally defective where it states that the appeal is against the whole judgment but the grounds of appeal only challenge part of the judgment. Rule 44(1)(c) of the Supreme Court Rules requires that a notice of appeal must state whether the whole or part only of the judgment is appealed against, and if only part, which part. An appeal lies against the order of the court, not merely the reasons for the order. Where grounds of appeal do not attack a specific paragraph of an order, that paragraph is deemed to be accepted by the appellant, and the appeal is therefore against part only of the judgment. Court rules must be followed meticulously for the proper running of the court.

The court observed that eviction of the applicants did not render the matter moot as there remained a live dispute between the parties regarding the validity of the cancellation notice under section 8(2) of the Contractual Penalties Act and the question of ownership of the property. A finding in favor of the applicants could reverse the eviction order. The court also noted that the principle from Chidyausiku v Nyakabambo - that an appeal must be directed at the order and not the reasons - is not always fully appreciated, even among lawyers. While grounds of appeal will necessarily attack the reasoning process, they must ultimately be directed at attacking specific parts of the order made. The court indicated it would not address the other preliminary points raised or the substantive merits of the condonation application since the defective notice of appeal was dispositive of the matter.

This case reinforces the strict approach taken by Zimbabwean courts to compliance with procedural rules, particularly Rule 44(1)(c) of the Supreme Court Rules requiring precise specification of whether an appeal is against the whole or part of a judgment. It confirms that a notice of appeal must accurately reflect the scope of the appeal as evidenced by the grounds of appeal, and that a mismatch between the stated scope and the actual grounds renders the notice fatally defective. The case emphasizes that rules are made for the proper running of the court and must be followed meticulously. It also reiterates the principle that appeals lie against orders, not reasons, and that grounds of appeal must attack the specific paragraphs of an order that the appellant wishes to challenge.